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

crossbee@eircom.net

Pictures of the Irish Coast by

Kevin Dwyer, photographer,

Phone Cork 4652910