Harbour Orders are a form of delegated legislation made under the Harbours Act 1964 (HA 1964), which either amends existing harbour legislation or introduces new harbour legislation.
If you wish to submit a representation or objection in relation to a Harbour Order which is currently in the 42 day public consultation period, please see our guidance
Harbour Orders overview
A harbour is defined by the Harbours Act 1964 (HA 1964) as any natural or artificial harbour, any port, haven, estuary, tidal or other river or inland waterway navigated by sea-going ships. It also includes docks and wharves.
Statutory Harbour Authorities (SHAs) are Statutory Bodies responsible for the management and running of a harbour. The powers and duties in relation to a harbour are set out in local Acts of Parliament or a Harbour Order under the HA 1964.
Harbour Orders are a form of delegated legislation which either amends existing legislation or introduces new harbour legislation. They are made as a statutory instrument under the HA 1964 and confers powers on the SHA for the purpose of improving, maintaining or managing a harbour.
All applications for Harbour Orders were processed by the Department for Transport (DfT) until 2010 when the MMO was established under the Marine and Coastal Access Act 2009 (MCAA). Section 42A of MCAA made provision for certain functions to be delegated by the relevant authority to the MMO.
The Harbours Act 1964 (Delegation of Functions) Order 2010 enabled the MMO to carry out the functions of the DfT Secretary of State in relation to Harbour Orders (including harbours designated as fishery harbours under the Sea Fish Industry Act 1951).
Although the responsibility for processing applications has now been delegated to the MMO, DfT are still the ports policy lead, advising MMO on ports policy and arranging for Harbour Orders to be laid before Parliament.
Harbour Order types
Harbour Orders can be separated into different types.
|Harbour empowerment Orders (HEOs)
|Are mainly concerned with building new harbours and or creating new harbour authorities responsible for improving, maintaining and managing them.
|Harbour revision Orders (HROs)
|Are used to change the existing legislation governing the management of a harbour or harbours controlled by the same statutory harbour authority (including the provision of new powers and duties).
|Harbour reorganisation schemes (HRSs)
|Are schemes which concern the amendment of the functioning of groups of harbours and can include joining together existing authorities into a new one. Fishery harbours cannot be included in a HRS.
Harbour Order proposals can be split further into ‘works’ and ‘non works’ Orders.
|This type of Order authorises a project, starting works or other installations or schemes, and other interventions in the natural surroundings and landscape. This type of Order usually requires a marine licence from the MMO under the Marine and Coastal Access Act 2009 (which the Harbour Orders team can also provide advice on). It is your responsibility to ensure that you have all the necessary consents in place prior to undertaking any proposed works, both from the MMO and other authorities.
|Non Works Order
|This type of Order has a purely administrative effect and can be made for one or more of the objects listed in Schedule 2 of The Harbours Act 1964. For example, reconstituting the harbour authority or settling the limits within which the authority are to have jurisdiction or altering such limits as previously settled.
The application process involved for a works Order and a marine licence falls under different legislation to each other, therefore the role of the MMO is different in each application type.
If the development is deemed to require both a marine licence and a Harbour Order, the MMO expects the applications to be submitted together.
Before you apply
Due to the complexity of the Harbour Orders process, you are strongly advised to contact the MMO Harbour Orders team prior to submitting your application.
The Harbour Orders process may take over 12 months depending on the nature and scale of the proposals. It is therefore important to engage with the MMO as soon as possible. Further information on timescales within the process is included throughout the guidance.
As Harbour Orders are a form of legislation, representatives of the Harbour Authority should obtain appropriate legal advice before applying to the MMO. The Harbour Orders team is not able to provide legal advice as to whether a Harbour Order is required or not. Depending on the nature of your proposals, other consents or assessments under other legislation outside of the Harbour Orders process may be required. The MMO is not able to offer any advice on areas that it does not have responsibility for, it is therefore your own responsibility to make your own enquiries to ensure compliance with relevant legislation. Having a Harbour Order will not absolve you of the requirement to comply with other legislation.
Effective pre-application engagement with any person or groups likely to be affected by your proposed application may assist in reducing objections to proposed Harbour Orders during the formal consultation period.
As such, MMO would encourage you to consider carrying out your own local consultation, particularly if the proposal contains works which may impact on local environments or introduce any major changes to the current functioning of your harbour. You may wish to consult local harbour users, some or all of the bodies and organisations that the MMO will consult with as part of your pre-application work.
Drafting the Harbour Order
To ensure that legislation is accessible, Harbour Orders should be drafted using plain, modern English as much as possible. The provisions in the Order should be understood by those who will be affected by it, this includes consultees and the general public.
Harbour legislation can be complex and care should be taken to ensure that any words or technical terms taken from previous local Acts or Orders that are not in common usage should be explained in your statement in support, which accompanies the application.
If your Harbour Order seeks to amend a criminal offence which already features in your existing harbour legislation or creates a completely new criminal offence, please ensure that you review the government’s position on making new criminal offences. A Justice Impact Test (JIT) must be carried out for the creation and amendment of criminal offences.
Prior to submission, contact the MMO to discuss the requirements for a JIT. You must also ensure that clear justification for your proposal is provided in the statement in support.
Statement in Support
A statement in support is your opportunity to set out the reasons why the application is required, and it must be submitted along with your other application documents.
Your statement in support should be submitted on the relevant MMO template. The templates can be downloaded from the template page.
This document will be used to accompany your application during consultation. It should be written in plain English, any legal and technical terms should also be explained to ensure that they can be fully understood. It is important that you provide enough information to allow those persons engaged in the consultation process to understand the proposals and give informed responses.
If the descriptions are incomplete or lack sufficient detail, it will be difficult for any effective consultation response to be made. If your proposals are not sufficiently clear, or new information comes to light during or after the consultation, it may require the re-opening of the consultation process to enable consultees to comment on that new information before the MMO is able to make a decision on your application.
The statement in support must show the need and justification for each provision of your Order, including how your application is in accordance with the relevant section of the HA 1964. This includes which of the objects under Schedule 2 to the HA 1964 your HRO is proposed to achieve (if relevant).
In the statement in support, you must show how you consider each of your proposed provisions satisfies the test for the respective Order before the MMO can be satisfied that an Order can be made. For example, if you have applied for a HRO under section 14 of the HA 1964, when making a determination the MMO must be satisfied that the making of the Order is desirable in the interests of securing the improvement, maintenance or management of the harbour in an efficient and economical manner or facilitating the efficient and economic transport of goods or passengers by sea or in the interests of the recreational use of sea-going ships.
Relevant marine plans must also be considered in your statement in support, this includes in applications for non-works Orders. The Explore Marine Plans tool can be used to search for relevant marine plan policies in your application area. You also should demonstrate that your application is compliant with relevant national and local plans, relevant policy and relevant guidance, for example the National Policy Statement for Ports and the Port Marine Safety Code.
If the MMO consider that any element of your statement in support is not clear, lacks sufficient detail or is incomplete, we will write back to you for further information and your application will not be progressed further until the required information is provided.
Discretionary pre-application service
As of 1 October 2022, MMO offers a discretionary advice service which is charged at an hourly rate of £122 per hour + VAT. This will be at the applicant’s request, for matters such as pre-application meetings and full, in-depth reviews, of application documents prior to submission.
If you choose to use the discretionary service, you will receive an estimate of the number of hours of casework required from the MMO, which will be multiplied by the appropriate hourly rate to give an estimated fee. This estimate will require your agreement before any chargeable work is undertaken and may be amended as work progresses. To use the discretionary pre-application service, please contact firstname.lastname@example.org
The Mandatory pre-application process (for works Orders only) must be completed prior to submitting your formal application for a Harbour Order which authorises a project. Your application fee will be paid at the point of formal application.
This stage relates to all applications for harbour revision Orders, harbour empowerment Orders and harbour reorganisation schemes.
Your application must be validated via email and include the appropriate documents. Use the links below to find out which documents an application needs. Once the application has been validated by the MMO and accepted, you will be required to pay the appropriate fee.
When application is first emailed to the MMO, it will be subject to a basic initial validation check. This will include checking that all sections of the Statement in Support are complete and that all supporting documents have been supplied. We expect that the basic initial validation check will be completed within approximately 10 working days of the receipt of the application.
Where the basic initial validation check reveals the application is complete, then the application will be accepted and processed in the usual way. At this point the application fee will be taken, the MMO will write to you to confirm how to submit this.
Where the basic initial validation check identifies a deficient application, it will not be accepted. The MMO will highlight the incomplete areas to you which must be updated before the application can be accepted.
During this check we may also have other observations about the submitted documents. We will communicate these observations to you, and that we can still accept the application as submitted, however these areas will need to be amended prior to consultation.
Please note that the basic initial validation check is not a full review of the application documents. Its purpose is to confirm that the application is ready to be accepted by the MMO. A full technical review of the application documents will take place after validation, and we may still require you to provide us with further information and documentation as we proceed with your application.
The application and associated documents submitted to MMO will be published on the Harbour Orders public register.
Applications must be sent by email to email@example.com
In support of your application, you may also send hard copies and CDs/USBs of your application documents to:
Harbour Orders Team
Marine Management Organisation
Newcastle upon Tyne
Pre Consultation review
The pre-consultation review takes place after receipt of a completed application and ensures that the MMO is satisfied that the consultation can begin. The pre-consultation review can take over three months, depending on the nature and complexity of your proposals. Some changes to your application documents may be requested following this review.
All applications must be advertised once in the London Gazette and for two successive weeks in at least one local newspaper with a wide circulation. If your application covers multiple areas, advertising in more than one local newspaper will be required. When the MMO has completed the pre-consultation review of your submitted documents we will send you a notice template to be completed with the details of your application. The content of the notice and the date of publication must be agreed with MMO prior to arranging publication.
Preparation for a Harbour Order consultation requires coordination across numerous MMO teams, therefore please do not arrange for notices to be published without prior agreement with the MMO. If publication is booked without the MMO’s agreement, we cannot guarantee that the documents will be published online or sent to our advisors on time.
Once the consultation has started, you must provide us with copies of each publication containing the notice, electronic copies are sufficient. This must be submitted within 3 working days of the publication date for EIA applications and 5 working days for all other applications.
At least one copy of the notice must also be placed in prominent places around the harbour/port. The locations of these notices are at your discretion, however they should be placed in areas with high foot traffic to ensure that harbour or port users are aware of the consultation. Copies of these public notices must also be sent to the MMO within 5 working days of their placement, please ensure that the images sent are of a high enough resolution so that the content of the notice can be read.
A 42 day period for objections and representations to be made begins from the date the advert first appears in the local newspaper and the London Gazette.
If the Order would authorise the compulsory purchase of land or affect a footpath or bridleway, there are additional requirements for giving notice. These include:
- serving notice on every owner, lessee, tenant and occupier affected by the compulsory purchase
- serving notice on every local authority for the area in which the public right of way is situated
- displaying the notice in a prominent position at each end of the part of the public right of way affected by the Order.
Your application will be sent for consultation. For further details please see our Consultation process page.
If you wish to submit a representation or objection to a Harbour Order application, it can either be submitted via email to firstname.lastname@example.org or posted to the address below:
Marine Management Organisation
Newcastle upon Tyne
For further details about submitting objections/representations and how these are handled, please see our Submitting objections/Representations to Harbour Orders page.
Changing your proposals
After you have submitted a formal application, you may propose changes to your draft Order, works methodology or environmental information.
However, if changes are proposed which materially affect the character of the Order, change project design or construction methodology, the MMO may require that the application is re-advertised and another 42 day consultation period takes place.
We will not accept a change that introduces the compulsory purchase of land, which was not described in your original application, unless all interested parties give their approval. Where the MMO propose to make an Order with modifications that substantially affect the character of the Order, those concerned will be informed and allowed reasonable time for comment.
Determining an application
In making the decision on whether or not to make the Order or to make it with modifications, MMO will consider:
- whether the application meets the relevant test(s) as set out in the HA 1964
- any environmental statement provided
- the results of any consultation
- any objections made during the statutory consultation period and not withdrawn
- any representations made during the statutory consultation period
- any relevant policy
- the report of any inquiry or hearing
Our decision on your application for a Harbour Order will be sent to you and interested people. It will also be published on the Harbour Orders public register.
An inquiry may be held where there are outstanding objections to an Order and the MMO is not able to make a decision. An inspector would be appointed and each inquiry is managed to suit the particular case.
You, the applicant will have to meet all costs and make the necessary practical arrangements. Costs can vary considerably and they are not a part of the application fee. You must pay the MMO to cover the cost of the inquiry after the inspector’s report has been received.
You are usually required to give notice of the inquiry in the same newspapers where you advertised the original application not fewer than 6 weeks in advance of the inquiry. If there are related applications, such as planning and licensing applications, MMO may deal with them all together at a single inquiry.
After the inquiry, the inspector’s report recommends actions for us to consider when making the final decision on the Harbour Order application.
After a decision is made
As the applicant, you must publish notice that the Order has been made in the same publications where earlier notices appeared. This is once in the London Gazette and for two successive weeks in at least one local newspaper. As before, we will provide you with a notice template. You must send a copy the notices to us when they are published, this should be within five working days of their publication.
If your application was an EIA works Order, MMO will also publicise the EIA consent decision in the London Gazette and the local newspaper. MMO will serve a copy of the Order on anyone on whom notice of the application was previously served.
Laying before Parliament
Once the MMO considers that a positive determination for an Order is appropriate, the MMO will liaise with the DfT who manage the process for laying Orders before Parliament. Obtaining a laying date can take at least three months from requesting one, and the MMO is not able to provide timescales for the completion of this part of the Harbour Order process.
Once the MMO are given clearance by DfT to start the parliamentary process for the formal laying of the Order, the Order will be assigned a date for laying and a date when the Order will come into force. This will be dependent on the parliamentary calendar. You will be informed of the laying and coming into force date. The Order can then be made. Once made, the Order and associated documents will be sent to DfT for preparation for laying in Parliament.
Harbour Orders are laid in Parliament under the negative procedure. An explanation of this is linked below. The Order will automatically become law unless there is an objection from either house. The date the Order will come into force must be at least 21 days after it is laid before Parliament. There may be occasions, depending on the parliamentary timetable where a longer period of time will be required between laying and coming into force.
A flowchart detailing the procedure of a made negative SI journey through Parliament.
There is no right of appeal against refusal to make a Harbour Order or its terms. A Harbour Order may, however, be challenged within 6 weeks from the date it becomes operative by application to the High Court.
Harbour Orders Team 0300 123 1032 Email: email@example.com