SHARING AN ESTUARY PORT
WITH OTHER USERS
INCLUDING MOTHER NATURE
Legal aspects of the changing environmental constraints
on port development and operations
HARBOUR USERS INCLUDE:-
1. SHIPS USING THE HARBOUR FACILITIES AND PAYING CHARGES.
2. VESSELS PROVIDING SERVICES SUCH AS TUGS.
3. SHIPS PASSING THROUGH TO OTHER HARBOURS.
4. RECREATIONAL USERS – YACHTS.
5. RECREATIONAL USERS – BATHERS.
6. RIPARIAN LANDOWNERS
7. OWNERS OF THE FORESHORE
8. LICENSEES OF STATE OWNED FORESHORE
9. BRIDGES
10. EUROPEAN NATURA 2000 SITES – BIRDS
11. EUROPEAN NATURA 2000 SITES – FLORA AND FAUNA
IRELAND: The Harbours Acts 1996 to 2009
Section 9 and Third Schedule
HARBOUR LIMITS
The legal nature of a Harbour Enterprise is that of a franchise
enjoying an exclusive right to establish a port within its limits.
Exobitant limits traditionally to prevent rival ports.
In sharing its harbour with other harbour users the Harbour
Enterprise and its Harbour Master are creatures of statute and can
only act within the power conferred by their statute.
Other powers and duties may be placed on them by other statutes.
Harbour Master is the “authorised officer” under Merchant
Shipping(Salvage and Wreck) Act, 1993, where vessel is in distress.
Port of Cork from Daunt Buoy
Section 13
HARBOUR CHARGES
Implied right of access on payment of charges
Charges can only be different in different
circumstances (principle of equality).
Power to regulate use does not, in itself, include a power
to exclude
IRELAND: The Harbours Acts 1996 to 2009
IRELAND: The Harbours Acts 1996 to 2009
Section 42 Part III and Section 46
(S. 42) HARBOUR BYELAWS
Harbour authority, a creature of statute, may only
regulate use of harbour by bye-laws.
(S. 46) POWER OF HARBOUR MASTER TO GIVE
DIRECTIONS. May not use power to give general
directions: The Guelder Rose 136 L.T. 226.
e.g. Ferries passing through a harbour to another harbour
must be regulated by bye-law to avoid swamping bathers.
Sections 96 and 103 transfer property of previous
Harbour Authority to Port Company.
Like the previous Harbours Acts, the words are not
sufficient to transfer the foreshore.
BEAULIEU HOUSE CASE ON THE RIVER BOYNE
Port Company planned to extend port of Drogheda.
House claimed foreshore as grant from Charles II.
IRELAND: The Harbours Acts 1996 to 2009
NATURA 2000 EUROPEAN SITES
BIRDS UNDER THE BIRDS DIRECTIVE 1972
79/409/EEC now 2009/147/EEC
HABITATS UNDER THE HABITATS DIRECTIVE 1992
92/43/EEC
[IRISH] EUROPEAN COMMUNITIES (NATURAL
HABITATS) REGULATIONS 1997
Article 6 of the ‘‘Habitats’’ Directive 92/43/EEC
1. For special areas of conservation, Member States shall establish the necessary conservation measures involving, if need be, appropriate management plans specifically designed for the sites or
integrated into other development plans, and appropriate statutory, administrative or contractual measures which correspond to the ecological requirements of the natural habitat types in Annex I and the species in
Annex II present on the sites.
2. Member States shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of natural habitats and the habitats of species as well as disturbance of the species for
which the areas have been designated, in so far as such disturbance could be significant in relation to the objectives of this Directive.
3. Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation
objectives....competent authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site.
4. If, in spite of a negative assessment of the implications for the site and in the absence of alternative solutions, a plan or project must nevertheless be carried out for imperative reasons of overriding public interest, including those of social or economic nature, the Member State shall take all
compensatory measures necessary to ensure that the overall coherence of Natura 2000 is protected....where the site concerned hosts a priority natural habitat type and/or a priority species, the only
considerations which may be raised are those relating to human health or public safety..
Article 6 of the ‘‘Habitats’’ Directive 92/43/EEC
Keywords paraphased
1. special areas of conservation, appropriate management plans
2. avoid, in the special areas of conservation, the deterioration of natural habitats
3. plans or projects, shall be subject to appropriate assessment by the competent authority of impact on integrity of the site.
4. If, for imperative reasons of overriding public interest, including those of social or economic nature, then compensatory measures.
The importance of making an early
"appropriate assessment“
of the environmental impact of a
project or plan
on a Natura 2000 Site
following the Lymington River case.
R (on the application of Akester) v.
DEFRA and Wightlink Limited,
Nature England and Lymington
Harbour Commissioners (Notice
Parties)
[2010] EWHC 232.
THE FACTS
Wightlink was a private company and was the statutory
harbour authority for Lymington Pier in Hampshire.
They planned to introduce a new class of ferry.
To reach Lymington Pier the ferries would pass through
the Solent SAC (Special Area of Conservation) and the
Solent SPA (Special Protection Area for Birds).
The SAC and the SPA were outside the harbour.
Wightlink,s decision to introduce the new class of ferry
was declared unlawful because prior to the application
there had been no “appropriate assessment” within the
meaning of Article 6.3 of the Habitats Directive.
Dicta of the Court in relation to Art. 6.3
A private company exercising statutory functions as a
harbour authority is a “competent authority”.
The words “plan or project” must be given a wide
meaning and include introducing a new ferry.
A port company must not allow commercial imperatives
to override its public duties as a “competent authority”.
An “appropriate assessment”, and the need for one,
must be based on the best available scientific
knowledge and must apply the Wadenzee
precautionary principle of the European Court but the
competent authority must make it own reasoned
assessment and record its decision.
Article 6.4 Compensatory Measures
Two examples of compensatory measures.
The foreshore licence for the development of Tom Roe
Point in Drogheda Port required an equivalent area of
sparta gras to be removed from the mud flats furthr
down stream. The Court ordered that the grass must be
removed by hand as removal by machine disturbed the
levels of the mud and the levels at which the birds feed.
Each species of wadding birds have bills of a specific
length and feed on worms living at a particular level in
the mud.
Article 6.4 Compensatory Measures
A mud bank known as the Stagrennan Polder was
removed by Drogheda Port Company to provide a
turning basin up river.
Compensatory Measures were provided down stream
notwithstanding the many mud flats in the estuary.
The compensatory measures had to reproduce the
same tidal conditions and marine biology as the Polder
so as to provide the same feeding ground for the birds
as that previously provided by the Polder.
Local Government Act, 1955
40.—(1) Section 52 of the Act of 1946 is hereby amended by the addition of
the following subsections:—
(5) Where the execution of the work has the effect of curtailing or terminating a
private right of any person (including, in particular, a right of navigation,
whether or not conferred by statute), such person may, within twelve months
after completion of the work, make to the executing authority a claim for
compensation in respect of such curtailment or termination and he shall be
entitled to be paid compensation therefor by the executing authority.
THE PROVISIONS OF THE [IRISH] 1946 ACT RELATING TO THE
ABRIDGEMENT OF NAVIGABLE WATERS HAVE BEEN REPLACED BY
SECTION 15A OF THE ROADS ACT 1993 AS AMENDED.
THANK YOU FOR YOUR
ATTENTION
Presentation by John Wilde Crosbie
Pictures of the Irish Coast by
Kevin Dwyer, photographer,
Phone Cork 4652910
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