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John Wilde Crosbie, Practitioner in Admiralty Law: Legal aspects of the changing environmental constraints on port development and operations
 

John Wilde Crosbie, Practitioner in Admiralty Law: Legal aspects of the changing environmental constraints on port development and operations

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John Wilde Crosbie, Barrister, Practitioner in Admiralty Law, Ireland delivered this presentation at the 2012 International Harbour Masters Congress – Global Port and Marine Operations in Ireland. ...

John Wilde Crosbie, Barrister, Practitioner in Admiralty Law, Ireland delivered this presentation at the 2012 International Harbour Masters Congress – Global Port and Marine Operations in Ireland. The Congress provides a unique forum in which formal Association meetings are combined with a conference and an exhibition - displaying equipment, services and technical developments from throughout the port and harbour sector. The event is held biennially and will next take place on 26-30 May 2014 in Bruges – Ghent, Belgium. Addressing the theme, ‘Safe and smooth access to ports: A challenge’, the 9th IHMA Congress in Belgium will showcase technical and operational breakthroughs together with international case studies on the development and management of modern port and marine operations across the globe. For more information about the congress, please visit the event website: http://www.globalportoperations.com

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    John Wilde Crosbie, Practitioner in Admiralty Law: Legal aspects of the changing environmental constraints on port development and operations John Wilde Crosbie, Practitioner in Admiralty Law: Legal aspects of the changing environmental constraints on port development and operations Presentation Transcript

    • 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
    • IRELAND: The Harbours Acts 1996 to 2009 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 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.
    • IRELAND: The Harbours Acts 1996 to 2009 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.
    • 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