PART 3GENERAL DIRECTIONS AND SPECIAL DIRECTIONS

Procedure for giving, amending or revoking general directions

5.—(1) Subject to paragraph (7), if the Commissioners propose to give, amend or revoke a general direction, they must—

(a)give notice in writing of the proposal and a plan of the area over which the proposal applies to the “designated consultees” them being—

(i)the King’s Harbour Master,

(ii)the Chamber of Shipping,

(iii)the Royal Yachting Association,

(iv)the Cattewater Harbour User Group, and

(v)such other persons as they consider appropriate for the purposes of the application of this provision,

(b)place a notice of the proposal on the harbour website and in prominent locations at the harbour on the same date as the notice given in accordance with sub-paragraph (a) and keep that notice on display for a minimum of six weeks;

(c)consult with the designated consultees upon the proposal and allow a period of not less than six weeks beginning with the date of the notice given in accordance with sub-paragraphs (a) and (b) for written representations to be made by the designated consultees and any other persons to the Commissioners regarding the proposal;

(d)have regard to all representations made during consultation;

(e)give notice in writing to the designated consultees, and to those other persons that have provided a consultation response, following consultation as to whether the Commissioners propose to proceed with the proposal and, if so, specifying whether they are making any modifications to the proposal and their reasons for so doing; and

(f)if the Commissioners propose to proceed with the proposal and a designated consultee has made representations against the proposal, invite that designated consultee to confirm in writing whether they maintain their objection to the proposal within 28 days beginning with the date of the notice given in accordance with sub-paragraph (e), or such longer period as the Commissioners may specify.

(2) Where the Commissioners have complied with paragraph (1), they may proceed to give, amend or revoke a general direction if—

(a)none of the designated consultees have made representations against the proposal;

(b)none of the designated consultees which made representations against the proposal have confirmed in writing that they are maintaining their objection to the proposal in accordance with paragraph (1)(f); or

(c)where a designated consultee has maintained an objection in accordance with paragraph (1)(f), the requirements of paragraph (3) have been complied with.

(3) Where a designated consultee has confirmed in writing to the Commissioners that they maintain their objection to a proposal—

(a)the issue must be referred to an independent person (“the adjudicator”) appointed—

(i)by agreement between the Commissioners and each designated consultee maintaining an objection in accordance with paragraph (1)(f) (“the parties”), or

(ii)failing agreement, by the President of the London Maritime Arbitrators Association on the application of any of the parties,

(b)so far as is reasonably practicable within 12 weeks beginning with the date of the referral, the adjudicator must—

(i)provide a reasonable opportunity for the parties to make representations to or be heard by the adjudicator at a hearing, and

(ii)make a written report to the parties with findings and recommendations on the issue,

(c)the Commissioners must decide whether to exercise the power to give, amend or revoke the general direction having regard to the adjudicator’s report (but they are not bound to give effect to any recommendations) and, once they have decided, must give notice in writing to the designated consultees and to any other person that provided a consultation response of their decision and the reasons for that decision.

(4) Except as otherwise provided for in paragraph (3), the adjudicator may determine the procedure for the making of representations and the conduct of any hearing.

(5) The costs incurred by the adjudicator and the parties from a referral under paragraph (3) are to be paid by one or more of the parties as the adjudicator may direct.

(6) If the Commissioners wish to exercise the power to give, amend or revoke a general direction in a form materially different from both the form notified to the designated consultees under paragraph (1)(e) and, where paragraph (3) applies, the form recommended by the adjudicator under paragraph (3)(b), they must proceed as if the proposal is a new proposal to which paragraph (1) applies.

(7) Paragraphs (1) to (6) do not apply where, in the interests of navigational safety, or safety of persons, the Commissioners propose to give or amend a general direction—

(a)in an emergency; or

(b)relating to an intended activity or operation within the harbour if—

(i)the intended activity or operation is expected to commence within 16 weeks of the Commissioners having been notified or otherwise becoming aware of the intended activity or operation,

(ii)the intended activity or operation is to last less than 28 days, and

(iii)the Commissioners consider that the giving or amending of a general direction in relation to the intended activity or operation is required, taking into account other activities or operations in the harbour which may be affected.

(8) Where the Commissioners proceed to give or amend a general direction in accordance with paragraph (7), they must—

(a)as soon as is reasonably practicable give notice of the direction or amendment to those persons who would have been designated consultees had paragraph (1)(a) applied; and

(b)if the direction or amendment is intended to continue in force for more than 12 weeks, apply the procedure under paragraphs (1)(c) to (f) and (2) to (6) to the direction or amendment with the following modifications—

(i)a reference to the ‘proposal’ in those paragraphs is to be read as a reference to the direction or amendment,

(ii)in paragraph (1)(c), for “sub-paragraphs (a) and (b)” substitute “paragraph (8)(a)”, and

(iii)a reference to the Commissioners ‘proceeding’ with a proposal is to be read as a reference to the Commissioners determining that the direction or amendment should remain in force.