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 and are have a role in the determination process. DfT provide consultation responses, advise MMO on ports policy and arrange 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.
|Works Order||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 and 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
MMO can provide advice with regard to the overall process of applying for a Harbour Order or harbour reorganisation scheme, email us email@example.com.
As Harbour Orders are a form of legislation, representatives of the Harbour Authority should obtain appropriate legal advice before applying to the MMO.
Effective pre-application engagement with any person or groups likely to be affected by your proposed application may assist in reducing objections to proposed Orders during the formal consultation period.
As such, MMO would encourage you to consider carrying out 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
Along with your application, please submit a statement in support of your application. This is your opportunity to set out the reasons why the application is required.
For applications submitted after 3 August 2020, 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 is therefore 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 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 decision is taken.
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 1964 Act your HRO is proposed to achieve (if relevant).
In the statement in support you must show how you believe each of your proposed provisions satisfies the test for the respective Order before the MMO can be satisfied that an Order can be approved. For example, if you have applied for a HRO under section 14 of the 1964 Act, 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. The Explore Marine Plans tool can be used to search for relevant marine plan policies in your application area and you 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.
The Mandatory pre-application process (for works Orders only) must be completed prior to submitting your application These steps must be carried out before you submit your formal application. Your application must be accompanied by the appropriate fee.
This stage relates to all applications for harbour revision Orders, harbour empowerment Orders and harbour reorganisation schemes.
Your application must be submitted via email with the appropriate fee and the following documents listed below.
If your application lacks sufficient detail or is incomplete, we will write back to you to request further detail. Your application will not be progressed further until the required information is provided.
The application and associated documents submitted to MMO will be published on the Harbour Orders public register.
Applications should be sent by email to firstname.lastname@example.org
In support of your application, you may also send hard copies and CDs/USBs of your application documents to:
Marine Management Organisation
Newcastle upon Tyne
MMO will review your application on receipt. If any aspect of your application is not clear, lacks detail or is incomplete, we will write back to you to request further detail. Your application will not be progressed further until the required information is provided. A case officer will confirm receipt of your application within 5 working days of submission.
All applications must be advertised in the London Gazette and at least one local newspaper with a wide circulation. When you submit your application, 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 publication. 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.
A copy of the notice must also be placed in prominent places around the harbour/port, copies of this must also be sent to the MMO within 5 working days of placement.
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 email@example.com or posted to the address below:
Marine Management Organisation
Newcastle upon Tyne
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. 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. 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. This can take at least three months, 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. The Order can then be 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. 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: firstname.lastname@example.org