Harbour Closure Orders

The vast majority of harbours in the UK are SHAs whose powers and duties are conferred under statute. This legislation was brought into force on 1 October 2013 and enables the harbour authority to be relieved of either all or certain specified statutory harbour functions. It fills a legislative ‘gap’ that had existed for many years. As yet this legislation has not been utilised but in August 2015 the statutory guidance (“the Guidance”) was put out for consultation by the Department of Transport (DfT). The consultation closes on 13 October 2015. The Guidance sets out the key criteria to be considered as part of the decision making process. This represents a significant change to the existing regime and it is important for SHAs and port users to understand the new options available to them.

Section 6 of the Marine Navigation Act 2013 amended the Harbours Act 1964 and introduced a procedure for closing a harbour without the need for an Act of Parliament. Instead such applications will follow a similar procedure to that of Harbour Revision Orders (HROs), except that the process will be managed by the DfT rather than the Marine Management Organisation (MMO). Currently there is no fee for such applications, but this is likely to change.

The amendments to the Harbours Act 1964 necessitated the publication of the Guidance to outline and clarify the circumstances in which a HCO will be made. Primarily, the Guidance sets out that the Secretary of State must have regard to “underlying purpose” which is defined as, “the purpose of permitting or requiring harbour authorities to cease to maintain harbours which are no longer commercially viable or necessary.”

The Guidance helpfully expands on this statutory definition by way of a non-exhaustive list of factors to establish commercial viability including: reduced demand for the use of the harbour; physical restrictions of the harbour that make ongoing use unviable, competition with other local ports, a decline or change in the number and type of vessels using the area.

The Guidance further requires that a statement of reasons is provided in support of a HCO application and that an SHA should consider its obligations under general law.

The new regime makes it much easier to close harbours which are no longer commercially viable, but inevitably will give rise to sometimes complex economic arguments as to commercial viability. Local authorities who manage many smaller uneconomic harbours are likely to be the most frequent applicants. Once closed, such harbours will be prime opportunities for property developers, Oldland concluded.

By Jake Frith