PART IPRELIMINARY

Citation and commencement

1.-(1) This Order may be cited as the Padstow Harbour Revision Order 1987 and shall come into force on a date fixed in accordance with the Statutory Orders (Special Procedure) Acts 1945 and 1965(3).

(2) The Padstow Harbour Act and Orders 1869 to 1973 and this Order may be cited together as the Padstow Harbour Acts and Orders 1869 to 1987.

Interpretation

2.  In this Order, unless the context otherwise requires-

"the Act of 1847" means the Harbours, Docks and Piers Clauses Act 1847(4)

"charges" means the charges, rates, tolls or dues which the Commissioners are for the time being authorised to demand, take and recover in relation to the undertaking;

"the Commissioners" means the Padstow Harbour Commissioners incorporated by section 4 of the Padstow Harbour Act 1910(5) and "Commissioner" means one of the Commissioners;

"the elected Commissioners" means the Commissioners elected by the Padstow electors, the St. Minver electors or the Wadebridge electors, as provided by article 4 below;

"the first election" means the first election held under the provisions of this Order;

"the harbour estate" means the docks, piers, wharves, quays, berths, roads, bridges, sheds and other works and conveniences and the lands, buildings and property, of every description and of whatever nature, which are for the time being vested in or occupied by the Commissioners for the purposes of the Port;

"the harbour master" means the harbour master appointed by the Commissioners and includes his authorised deputies and assistants and any person authorised by the Commissioners to act as harbour master;

"hovercraft" has the same meaning as in the Hovercraft Act 1968(6)

"the level of high water" means the level of mean high-water springs;

"the Manor Commissioner" means the Commissioner appointed by the Lord of the Manor of Padstow as provided by article 4 below;

"the new constitution date" means the first day of the third month after the expiry of the month current at the commencement of this Order;

"the Padstow Area" means the area consisting of the parishes of Padstow and St. Issey in the county of Cornwall;

"the Padstow electors" means the persons who are shown in the register of parliamentary electors for the time being in force as resident at addresses within the Padstow Area;

"the Port" means the area within the limits of a line from Pentire Point (50 degrees, 35.2' North, 4 degrees, 56.05' West) to the outside of Newland Rock (50 degrees, 35.55' North, 4 degrees, 56.85' West) to the outside of Gulland Rock (50 degrees, 34.32' North, 4 degrees, 59.9' West) to Stepper Point (50 degrees, 34.12' North, 4 degrees, 56.8' West) including all the branches or creeks of the Rivers Camel and Allen so far as the tide flows;

"the returning officer" means the returning officer at the elections to be held under the provisions of this Order;

"the St. Minver Area" means the area consisting of the parishes of St. Minver Highlands and St. Minver Lowlands in the county of Cornwall;

"the St. Minver electors" means the persons who are shown in the register of parliamentary electors for the time being in force as resident at addresses within the St. Minver Area;

"tidal work" means so much of any work for the time being vested in the Commissioners as is on, under or over tidal waters or tidal lands below the level of high water;

"the undertaking" means the harbour undertaking of the Commissioners for the time being;

"vessel" means every description of vessel, however propelled or moved, and includes anything constructed or used to carry persons or goods by water and a seaplane on or in the water, a hovercraft and a hydrofoil vessel;

"the Wadebridge Area" means the area consisting of the parishes of Egloshayle, St. Breock and Wadebridge in the county of Cornwall;

"the Wadebridge electors" means the persons who are shown in the register of parliamentary electors for the time being in force as resident at addresses within the Wadebridge Area.

Incorporation of enactments

3.-(a) The provisions of the Act of 1847 (except sections 8 to 20, 25, 26, 42, 43, 48, 50, 83 to 90, 95 and 97 to 99), so far as applicable to the purposes of, and not inconsistent with, the provisions of this Order, are hereby incorporated with this Order.

(b)in construing the provisions so incorporated-

(i)the expression "the special Act" shall mean this Order, the expression "the undertakers" shall mean the Commissioners and the expression "the harbour, dock or pier" shall mean the Port and any docks, piers, berths, quays or wharves forming part of the harbour estate;

(ii)section 23 shall have effect as if the Proviso to that section were omitted; and

(iii)section 52 and 53 shall have effect in accordance with the provisions of article 10 (harbour master's powers) of this Order.

PART IINEW CONSTITUTION

New constitution of Commissioners

4.  On and after the new constitution date, the Commissioners shall consist of:-

(a)one Commissioner appointed by the Lord for the time being of the Manor of Padstow in the county of Cornwall;

(b)three Commissioners elected by the Padstow electors as provided in article 6 below;

(c)three Commissioners elected by the St. Minver electors as provided in article 6 below;

(d)three Commissioners elected by the Wadebridge electors as provided in article 6 below.

Appointment and term of office of Manor Commissioner

5.-(1) The Lord of the Manor of Padstow shall make the first appointment under article 4(a) above before the new constitution date, or as soon as practicable after it, and the Commissioner so appointed shall come into office on that date or upon his appointment, whichever is the later, and shall hold office until 1st April 1990; and the Lord of the Manor shall appoint his successor for each period of three years in the series commencing on that date, or for the balance of such period. A Manor Commissioner may be reappointed.

(2) The Lord of the Manor shall appoint as soon as practicable a person to fill any casual vacancy in the office of Manor Commissioner, and the person so appointed shall come into office on the date of the vacancy or upon his appointment, whichever is the later, and shall hold office during the remainder of the term of the previous Manor Commissioner.

Rules for Election of Commissioners

6.  Schedule 1 to this Order shall have effect with respect to the elections of the elected Commissioners.

Election and term of office of candidates elected at the first election

7.-(1) At the first election in each area the candidate in first, second or third place at a poll shall hold office until 31st March 1990, 31st March 1989 and 31st March 1988 respectively.

(2) The returning officer shall resolve any equality of votes by lot.

(3) If at the first election candidates are elected without a poll, they shall serve respectively until 31st March 1990, 1989 or 1988 as determined by lot.

(4) A person who at the time of the first election is appointed by the Commissioners under paragraph 5(1) of Schedule 1 to this Order shall be appointed into first, second or third place and hold office as under (1) above; but no person may be appointed into a higher place than a Commissioner who has been elected.

Election and term of office of Commissioners elected at other elections

8.  A Commissioner who is elected at any election other than the first, shall come into office on 1st April next following his election and shall hold office for three years.

(2) A Commissioner who is appointed at any election other than the first under paragraph 5(2) of Schedule 1 to this Order shall hold office for the balance of the period of three years from 1st April of the year of his appointment.

Casual vacancies among the elected Commissioners

9.-(1) If a casual vacancy shall occur among the elected Commissioners more than six months before the vacating Commissioner would regularly have retired, the vacancy shall be filled by the election (or appointment) of a Commissioner as provided in paragraph (2) below, and the person so elected (or appointed) shall come into office on the date of his election (or appointment) and hold office during the remainder of the term of the Commissioner to whom he succeeded.

(2) Schedule 1 to this Order shall apply to an election held under paragraph (1) above as it applies to the annual election of Commissioners other than the first but subject to the following modifications:-

(i)for paragraph 3 of Schedule 1 there shall be substituted the following paragraph;

"The returning officer shall make arrangements for the nomination of candidates for an election to fill a casual vacancy required by article 9(1) of this Order and during the period of four weeks beginning with the day on which the vacancy occurs shall publish notice by advertisement in one or more local newspapers circulating in the relevant area and by such other methods as the Commissioners may think fit of the time and place arranged for the nomination of candidates. The day fixed for the purpose must be at least one week after the first publication of such notice and not later than three weeks after such publication. The place fixed for this purpose must be within the relevant area.";

(ii)paragraph 5 of Schedule 1 shall have effect as if there were substituted for the words "immediately after the new constitution date or the 1st April in the year in question as the case may be" the words "as soon as reasonably practicable";

(iii)paragraph 10 of Schedule 1 shall have effect as if there were substituted for the words

• "being

  (a)

  for the first election, not earlier than fourteen or later than twenty-eight days after the nomination of candidates, and

  (b)

  in subsequent years not later than 15th March".

• the words

• • "being not earlier than fourteen days or later than twenty-eight days after the nomination of candidates".

Incidental provisions relating to the Commissioners

10.  On and after the new constitution date, the provisions of Schedule 2 to this Order shall have effect with respect to the Commissioners.

PART IIIMANAGEMENT OF THE UNDERTAKING

Limits of jurisdiction

11.-(1) The limits within which the Commissioners shall have and may exercise the powers of a harbour authority, and within which the powers of the harbour master may be exercised shall be the limits of the Port.

(2) Nothing in this article shall empower the Commissioners to subject any person to liability to charges in respect of any vessel which remains seaward of a line drawn from Pentire Point to Stepper Point.

General powers of Commissioners

12.  The Commissioners may, subject to the provisions of this Order, take all such steps from time to time as they consider necessary or desirable for the maintenance, operation and improvement of the Port and the accommodation and facilities (including navigational facilities) afforded therein or in connection therewith, and for those purposes, and without prejudice to the generality of the foregoing, the Commissioners may-

(a)improve, regulate and manage the Port and provide harbour facilities therein; and

(b)do all other things which in their opinion are expedient to facilitate the efficient functioning, improvement or development of the Port.

Appointment of officers

13.  The Commissioners shall appoint a clerk and a harbour master and may appoint such other officers and such servants as they may determine.

Harbour master's powers

14.-(1) Section 52 of the Act of 1847 as incorporated with this Order, in its application to the harbour master-

(a)shall extend to empower the harbour master to give directions prohibiting the mooring of vessels in any particular part or parts of the Port.

(b)shall not be construed so as to require the harbour master in an emergency to give particular directions in the case of every vessel in respect of which it is desired to exercise any of the powers of that section; but in pursuance of the section for all or any of the purposes thereof the harbour master shall be entitled in emergency to give general directions applicable to all vessels or to particular classes of vessels.

(2) Section 53 of the Act of 1847, in its application to the Commissioners and to the harbour master, shall not be construed so as to require the harbour master to serve a notice in writing of his direction upon the master of a vessel and such directions may be given orally or otherwise communicated to the master on any occasion when it is not reasonably practicable for a written notice to be served on the master.

Liability for safety of goods

15.  The Commissioners shall not be responsible for the safety of any goods deposited in any part of the harbour estate not specifically set apart by the Commissioners for the purpose of warehousing.

Power to remove goods

16.-(1) If any goods are left on or in any part of the harbour estate the Commissioners may require the owner of the goods to remove them, and if the goods are not removed within six hours after such requirement the Commissioners may cause them to be removed to their own or any other public warehouse or store, and such removal shall be carried out at the expense of the owner.

(2) Notwithstanding such removal on behalf of the Commissioners the goods shall be liable to a general lien for the cost of the removal, and for any charges payable by the owner.

(3) The powers of the Commissioners to prevent the removal of goods until the cost of the removal and charges payable by the owner have been paid shall extend and apply to any goods removed or placed in store under the powers of this article.

General byelaws

17.  Subject to the provisions of this Order the Commissioners may make byelaws for all or any of the following purposes-

(a)for regulating the use, operation and superintendence of the Port;

(b)for regulating the admission to, movement and berthing within, and the departure of vessels from, the Port, or the removal of vessels, and for the good order and government of vessels whilst within the Port;

(c)for regulating the shipping and unshipping, landing, warehousing, stowing, depositing and removing of goods within the limits of the Port, and at the harbour estate;

(d)for preventing damage or injury to any vessel, goods, vehicle, plant, machinery, property or persons within the Port or on the harbour estate;

(e)for regulating the conduct of persons in the Port;

(f)for regulating the placing, maintenance and use of moorings within the Port;

(g)for preventing or removing obstructions or impediments within the Port or in or near the seaward approaches to the Port;

(h)for regulating the removal and disposal of ballast brought by vessels entering the Port and the supply of ballast to vessels within the Port, so as to prevent any unnecessary obstruction by ballast;

(i)for regulating the use of ferries within the Port;

(j)for regulating the use of yachts, sailing boats, rowing boats and other small craft (whether or not propelled by mechanical power) and the holding of regattas and other public events so far as within the Port;

(k)for regulating the launching of vessels within the Port;

(l)for regulating or preventing the use of fires and lights within the Port and the harbour estate, and on or within any vessel in the Port;

(m)for regulating the movement, speed and parking of vehicles within the harbour estate;

(n)for regulating the exercise of the powers vested in the harbour master.

Byelaws as to lights, signals, etc.

18.-(1) Subject to the provisions of this Order the Commissioners may make byelaws for all or any of the following purposes-

(a)for prescribing the lights and signals to be carried, exhibited or made by vessels while being used, navigated or moored within the Port;

(b)for prescribing the lights and signals to be exhibited or made by vessels aground within the Port;

(c)for prescribing the lights and signals to be exhibited or made by wreckmarking vessels or by other devices used for marking obstructions within the Port;

(d)for prescribing steering and sailing rules for the regulation of vessels used or navigated within, or entering or leaving, the Port;

(e)for prescribing the lights and signals to be exhibited or made at the entrance to any dock or at any wharf, pier or other work for assisting the navigation of vessels within the Port.

(2) In this article "signals" include sound signals.

(3) Different byelaws may be made under this article in relation to different classes of vessel.

Confirmation of byelaws and fines thereunder

19.-(1) (a) All byelaws made by the Commissioners under this Order shall be subject to the provisions contained in subsections (3) to (8) of section 236 and in section 238 of the Local Government Act 1972(7) and those sections shall for the purposes of this article be construed as if the Commissioners were a local authority within the meaning of the said Act of 1972 and the reference to "the proper officer of the authority" included a reference to the clerk to the Commissioners.

(b)In its application to byelaws made by the Commissioners subsection (7) of the said section 236 shall be construed as if it had been amended by the insertion of the words "or confirm with modifications" after the word "confirm" in the second place where that word occurs:

Provided that where the confirming authority proposes to make a modification which appears to him to be substantial, he shall inform the Commissioners and require them to take any steps he thinks necessary for informing persons likely to be concerned with that modification and shall not confirm the byelaws until there has elapsed such period as he thinks reasonable for consideration of, and comment upon, the proposed modification by the Commissioners and by other persons who have been informed of it.

(2) The conforming authority for the purposes of this article and of the said section 236 in its application to the Commissioners shall be the Secretary of State.

(3) Byelaws made by the Commissioners under this Order may contain provisions for the imposing on persons convicted of an offence against any of the byelaws of a fine not exceeding £400 for any such offence.

Saving for existing byelaws

20.  All byelaws made by the Commissioners under any enactment repealed by this Order and in force immediately before the commencement of this Order shall have effect as if they had been made and confirmed under this Order and may be amended or revoked by the Commissioners accordingly.

Powers with respect to disposal of wrecks

21.-(1) In their application to the Commissioners sections 530 and 532 of the Merchant Shipping Act 1894(8) (which confer powers on the Commissioners with respect to, and with respect to anything in or on, any vessel sunk, stranded or abandoned in such manner as to be or to be likely to become an obstruction or danger to navigation in the Port or in or near any approach thereto) shall have effect-

(a)subject to the provisions of the next following article; and

(b)in relation to a vessel sunk, stranded or abandoned before, as well as after, the commencement of this Order.

(2) Subject to paragraph (3) of this article, and to any enactment for the time being in force limiting his liability, the Commissioners may recover as a simple contract debt from the owner of any vessel in relation to which they have exercised their powers under the said section 530 any expenses reasonably incurred by them under that section in relation to that vessel which are not reimbursed out of any proceeds of sale within the meaning of that section.

(3) Except in a case which is in the opinion of the Commissioners a case of emergency, paragraph (2) of this article shall not apply in relation to any vessel unless before exercising in relation to that vessel any of the powers conferred on them by the said section 530, other than the power of lighting and buoying, the Commissioners have given to the owner of the vessel not less than forty-eight hours' notice of their intention to do so; and if before the notice expires they receive from the owner counter-notice in writing that he desires to dispose of the vessel himself, and no direction is served in respect of the vessel under paragraph (2)(b) of the next following article, he shall be at liberty to do so, and the Commissioners shall not exercise the powers aforesaid in relation to that vessel until the expiration of seven days from the receipt of the counter-notice and of any further continuous period thereafter during which the owner of the vessel proceeds with the disposal thereof with all reasonable diligence and in compliance with any directions for the prevention of interference with navigation which may be given to him by the Commissioners.

(4) Notice under the last foregoing paragraph to the owner of any vessel may be served by the Commissioners either by delivering it to him or by sending it to him by the recorded delivery service addressed to him at his last known place of business or abode in the United Kingdom, or, if the owner or any such place of business or abode is not known to the Commissioners, by displaying the notice at the office of Commissioners for the period of its duration.

(4A) Except in a case which is, in the opinion of the Commissioners, a case of emergency, the Commissioners shall, before raising, removing or destroying under the powers conferred upon them by the said section 530 any vessel sunk, stranded or abandoned in the Port and within a distance of 150 metres of any apparatus belonging to or maintained by the British Gas Corporation, give to that corporation in writing as long notice as is practicable of their intention to do so.

(5) In this article the word "owner" in relation to any vessel means the person who was the owner of the vessel at the time of the sinking, stranding or abandoning thereof, and for the purposes of this and the next following article the word "vessel" includes any aircraft.

Protection of Crown interests in wrecks

22.-(1) Without prejudice to section 741 of the Merchant Shipping Act 1894 (which relates to the exemption from the provisions of that Act of vessels belonging to Her Majesty), as modified by any Order in Council made under section 80 of the Merchant Shipping Act 1906(9) the powers conferred on the Commissioners by sections 530 and 532 of the said Act of 1894 shall not be exercisable-

(a)in relation to any vessel sunk, stranded or abandoned by design by or under the orders of a person acting on behalf of Her Majesty or an officer or servant of the Crown acting in the course of his duty as such;

(b)except with the consent of the Secretary of State for Defence which may be given with or without such a direction as is referred to in paragraph (2)(b) of this article, in relation to any vessel which is not excluded from the exercise of those powers by virture of being a vessel belonging to Her Majesty but which, at the time when the vessel was sunk, stranded or abandoned-

(i)had been required to be placed at the disposal of Her Majesty or of a government department; and

(ii)was appropriated to the service, under the direction and control of the Secretary of State for Defence of Her Majesty's ships of war.

(2) The Commissioners shall give notice in writing to the Secretary of State for Defence and to the Secretary of State for Transport of any decision of the Commissioners to exercise in relation to any vessel any of the powers conferred by the said sections 530 and 532 other than the power of lighting and buoying and, except in a case which is in the opinion of the Commissioners a case of emergency, shall not proceed with the exercise thereof-

(a)except with the consent of the Secretary of State for Defence and the Secretary of State for Transport before the expiration of a period of fourteen days from the giving of the notice; or

(b)if before the expiration of the said period there is served on the Commissioners a direction by the Secretary of State for Defence or the Secretary of State for Transport that those powers shall not be exercised in relation to that vessel except in such a case as aforesaid;

and where in any such case as aforesaid the Commissioners proceed to exercise those powers without the consent and before the expiration of the period mentioned in sub-paragraph (a) of this paragraph or after a direction has been served on them as aforesaid, they shall not in the exercise of those powers use any explosives and, if before the expiration of the period aforesaid such a direction as aforesaid is served on them, shall not be entitled to exercise the power of sale conferred by the said section 530 or the power conferred by paragraph (1)(a) of the last foregoing article:

Provided that-

(i)the Commissioners shall not be required to give notice under this paragraph in respect of any vessel in respect of which they have received a consent under paragraph (1)(b) of this article, but any direction such as is referred to in sub-paragraph (b) of this paragraph accompanying that consent shall be deemed for the purposes of this paragraph and of paragraph (3) of the last foregoing article to have been duly served under sub-paragraph (b) of this paragraph;

(ii)the prohibition on the use of explosives imposed by this paragraph shall not apply to the use for cutting away the superstructure of a vessel of such small explosive charges as may for the time being be approved by the Secretary of State for Transport for the purpose of this proviso.

(3) Without prejudice to the powers of sale conferred on the Commissioners by the said section 530, the Commissioners shall hold and dispose of any wreck within the meaning of Part IX of the said Act of 1894 raised, removed or recovered under that section, and any surplus proceeds of sale within the meaning of that section, in accordance with such directions, if any, as may be given to them by the receiver of wreck; and on exercising the said power of sale in the case of any property the Commissioners shall discharge any sums payable in respect of that property by way of duties of customs or excise and any sums so discharged shall be deemed to be expenses incurred by the Commissioners under that section.

(4) Any limitation on the powers of the Commissioners in relation to any vessel arising by virtue of paragraph (1) or paragraph (2) of this article shall not operate to authorise the exercise in relation to that vessel of the powers conferred on the Trinity House by section 531 of the said Act of 1894.

Powers to grant management leases

23.  Notwithstanding anything in this or any other statutory provision of local application, the Commissioners for the purposes of or in connection with the management of the undertaking may lease or grant the use or occupation of or any easement, servitude or other right or interest in or over any lands, work, buildings, machinery, equipment or other property of the Commissioners for such period or periods, at such rents and considerations and on such terms and conditions as shall be agreed between the Commissioners and the person taking the same.

Works in the Harbour

24.-(1) The Commissioners, subject to obtaining the necessary rights in or over land, may execute, place, maintain and operate in and over the Port such works and equipment as are required for or in connection with the exercise by them of any of their functions under this Order and may alter, renew or extend any works so constructed or placed.

(2) In the exercise of the powers of this article the Commissioners shall not interfere with, damage or injuriously affect any apparatus belonging to or maintained by the Central Electricity Generating Board or the South Western Electricity Board and the said powers shall be so exercised as not to obstruct or render unreasonably inconvenient the access to any such apparatus or to operational land (as defined in section 222 of the Town and Country Planning Act 1971)(10) of either of the said Boards.

(2A) In the exercise of the powers of this article the Commissioners shall not interfere with, damage or injuriously affect any apparatus belonging to or maintained by the British Gas Corporation.

(3) In this article "works" means works of any description, and includes the reclamation of land reasonably required for the purpose of executing works.

Power to dredge

25.-(1) The Authority may deepen, widen, dredge, scour and improve the bed and foreshore of the Port and of the approaches to the Port and may blast any rock within the Port or in such approaches.

(2) Any materials (other than wreck within the meaning of Part IX of the Merchant Shipping Act 1894) taken up or collected in the course of such operations shall be the property of the Commissioners and may be used, sold, removed, deposited or otherwise disposed of as the Commissioners may think fit:

Provided that the Commissioners shall not lay down or deposit any materials in a place below the level of high water except in such position as the Secretary of State may approve and subject to such conditions or restrictions as he may impose.

(3) In the exercise of the powers of this article the Commissioners shall not interfere with, damage or injuriously affect any apparatus belonging to or maintained by the British Gas Corporation, and before operations for blasting any rock are carried out within 150 metres of any such apparatus the Commissioners shall give in writing to the British Gas Corporation not less than 28 days' notice of their intention to do so.

Moorings, etc.

26.-(1) No person other than the Commissioners may place, lay down, alter, renew or extend, or maintain, moorings, buoys or similar apparatus within the Port unless he is licensed to do so by a licence granted under this article and except in accordance with the terms and conditions upon which such licence is granted:

Provided that this paragraph shall not apply to any mooring, buoy or similar apparatus placed or laid down before the commencement of this order except as provided in paragraph (5) of this article.

(2) The Commissioners may from time to time grant a licence to any person to place, lay down, alter, renew or extend, or maintain, moorings, buoys or similar apparatus for vessels in the Port:

Provided that-

(i)such a licence shall not entitle a person to place, lay down, alter, renew or extend, or maintain, moorings, buoys or similar apparatus on land in respect of which he does not hold such rights as are necessary to enable him to enjoy the benefit of the licence;

(ii)the Commissioners shall not unreasonably refuse to grant a licence to an owner or lessee of land (where the Commissioners are not the landlord) to place, lay down, alter, renew or extend, or maintain, moorings, buoys or similar apparatus on that land and any question whether in such a case the grant of a licence has been unreasonably refused shall be determined by the Secretary of State.

(3) Any licence granted under this article shall be valid only for such a period not exceeding three years as may be specified in the licence.

(4) The Commissioners may charge a reasonable fee for granting a licence under this article.

(5) In the case of any mooring, buoy or similar apparatus which before the commencement of this order has been placed or laid down within the Port without the written permission of the Commissioners, the Commissioners may, by notice to the person using such mooring, buoy or similar apparatus, require the same to be removed unless, on an application under this article, the Commissioners grant a licence authorising the maintenance of the mooring, buoy or similar apparatus in question.

(6) Any person who without reasonable excuse-

(a)contravenes paragraph (1) of this article; or

(b)fails to comply with a notice under paragraph (5) of this article within the time stated in that notice or, as appropriate, within the time stated in a notice informing him of the refusal of his application for a licence,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding £100.

(7) The Commissioners may remove any mooring, buoy or similar apparatus which has been placed, laid down, altered, renewed or extended, or which is being maintained, in contravention of this article and may recover the expenses of so doing from the person responsible for such contravention.

(8) Paragraph 23 of the telecommunications code (which provides a procedure for certain cases where works involve the alteration of telecommunication apparatus) shall apply, for the purposes of works authorised by a licence under this article, to the person authorised to execute those works.

Disposal of property no longer required for the Port

27.  The Commissioners, in respect of property vested in them and held for the purposes of the Port which is no longer required for those purposes, may dispose of such property in such manner, whether by way of sale, exchange, lease, the creation of any easement, right or privilege, or otherwise, for such period, upon such conditions and for such consideration as they think fit.

Tidal works not to be executed without approval of Secretary of State.

28.-(1) A tidal work shall not be constructed, extended, enlarged, altered, replaced or relaid except in accordance with plans and sections approved by the Secretary of State and subject to any conditions and restrictions imposed by him before the work is begun.

(2) If a tidal work is constructed, extended, enlarged, altered, replaced or relaid in contravention of this article or of any condition or restriction imposed under it-

(a)the Secretary of State may by notice in writing require the Commissioners at their own expense to remove the tidal work or any part thereof and restore the site to its former condition; and if, at the end of 30 days from the date when the notice is served upon the Commissioners they have failed to comply with the requirements of the notice, the Secretary of State may execute the work specified in the notice; or

(b)if it appears to the Secretary of State urgently necessary to do so, he may remove the tidal work, or part of it, and restore the site to its former condition;

and any expenditure so incurred by the Secretary of State shall be recoverable from the Commissioners.

Lights on tidal works during construction

29.-(1) The Commissioners shall at or near a tidal work during the whole time of the construction, extension, enlargement, alteration, replacement or relaying thereof, exhibit every night from sunset to sunrise such lights, if any, and take such other steps for the prevention of danger to navigation as the Secretary of State shall from time to time direct.

(2) If the Commissioners fail to comply with any requirement of a direction given under this article they shall be guilty of an offence and liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine.

Provision against danger to navigation

30.-(1) In the case of injury to or destruction or decay of a tidal work or any part thereof the Commissioners shall forthwith notify Trinity House and shall lay down such buoys, exhibit such lights and take such other steps for preventing danger to navigation as Trinity House may from time to time direct.

(2) If the Commissioners fail to notify Trinity House as required by this article or to comply with any requirement of a direction under it the Commissioners shall be guilty of an offence and liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine.

Abatement of works abandoned or decayed

31.-(1) Where a tidal work is abandoned, or suffered to fall into decay, the Secretary of State may by notice in writing require the Commissioners at their own expense either to repair and restore the work or any part thereof, or to remove the work and restore the site thereof to its former condition, to such an extent and within such limits as he thinks fit.

(2) Where-

(a)a work consisting partly of a tidal work and partly of works on and over land above the level of high water is abandoned or suffered to fall into decay; and

(b)that part of the work on or over land above the level of high water is in such a condition as to interfere or to cause reasonable apprehension that it may interfere with the right of navigation or other public rights over the foreshore; the Secretary of State may include that part of the work, or any portion thereof, in any notice under this article.

(3) If, at the end of 30 days from the date when a notice under this article is served upon the Commissioners they have failed to comply with the requirements of the notice, the Secretary of State may execute the work specified in the notice and any expenditure incurred by him in so doing shall be recoverable from the Commissioners.

Survey of tidal works

32.  If he deems it expedient, the Secretary of State may at any time order a survey and examination of a tidal work or of the site upon which it is proposed to construct the work, and any expenditure incurred by him in any such survey and examination shall be recoverable from the Commissioners.

Permanent lights on tidal works

33.-(1) After the completion of a tidal work the Commissioners shall at the outer extremity thereof exhibit every night from sunset to sunrise such lights, if any, and take such other steps, if any, for the prevention of danger to navigation as Trinity House may from time to time direct.

(2) If the Commissioners fail to comply in any respect with a direction given under this section they shall be guilty of an offence and liable on summary conviction to a fine not exceeding the statutory maximum and on conviction on indictment to a fine.

PART IVCHARGES

Charges for harbour facilities

34.-(1) The Commissioners may demand, take and recover in respect of anything done or provided by them or on their behalf in relation to the Port such reasonable charges as they may determine.

(2) In paragraph (1) above, "charge" does not include ship passenger or goods dues as defined by section 57 of the Harbours Act 1964.

Charges on certain floating articles

35.  In addition to their power to demand, take and recover ship, passenger and goods dues under section 26 of the Harbours Act 1964 the Commissioners may demand, take and recover in respect of any dracone or floating dock, crane rig, drilling rig or other floating plant (not being a ship within the meaning of section 57 of that Act) entering, using, or leaving the Port such charges as the Commissioners think fit, and the provisions of sections 30 and 31 of that Act (which require lists of charges to be available for inspection and sale and give a right of objection to ship, passenger and goods dues) shall, with any necessary modifications, apply to charges authorised by this article as they apply to ship, passenger and goods dues.

Conditions relating to payment of charges

36.  Charges shall be payable subject to such conditions as the Commissioners may from time to time specify in their published list of charges.

Payment of charges

37.-(1) The several charges which the Commissioners are for the time being authorised to demand, take and recover in respect of vessels, other floating articles and goods shall be due and payable before the removal from the Port of any vessel, other floating article or goods in respect of which they are payable and may be demanded, taken and recovered by such persons and at such places and times as the Commissioners may from time to time apppoint.

(2) Charges shall be payable by the owner of any vessel or goods in relation to which the charges are payable.

(3) Where charges may be recovered by the Commissioners from more than one person, the persons from whom they may be recovered shall be jointly and severally liable.

Payment of charges on warehoused goods

38.  Notwithstanding the provisions of article 16 of this Order, the owner or person having the charge of any goods warehoused, placed, stored or yarded in a warehouse, transit shed or area, store or yard of the Commissioners shall, before the removal of any of the goods therefrom and at such date or dates as shall be fixed by the Commissioners, pay such charges as shall be then due and payable on the goods.

Recovery of charges

39.  In addition to any other remedy afforded by this Order and by the Act of 1847 as incorporated with this Order, and whether or not the demand required by section 44 of that Act has been made, the Commissioners may recover charges as a debt in any court of competent jurisdiction.

Exemption of lifeboat crew from charges

40.  All persons going to or returning from any lifeboat or using any apparatus for saving life and being persons either belonging to the crew of the lifeboat or to the coastguard or being persons for the time being actually employed in saving life or in exercising or using the lifeboat or the apparatus for saving life and all persons brought ashore from any vessel in distress shall at all times have free ingress, passage and egress to, along and from the Port without payment.

Exemption of Officers

41.  Officers of the Department of Transport and of the Ministry of Agriculture, Fisheries and Food and constables acting in the execution of their duty shall at all times have free ingress, passage and egress to, along and from the Port without payment.

PART VFINANCE

General borrowing powers

42.-(1) The Commissioners may from time to time borrow upon the security of all or any of the revenues and property of the Commissioners and by any method or methods they see fit, such sums of money as they think necessary:

Provided that:

(i)the amount outstanding in respect of monies so borrowed shall not at any time exceed £500,000;

(ii)in calculating for the purpose of this article the amount outstanding in respect of monies borrowed by the Commissioners there shall be excluded any sums borrowed for the purpose of repaying within twelve months of the date of borrowing any sum for the time being outstanding by way of principal on any amount previously borrowed.

(2) Monies borrowed by the Commissioners under this article shall be applied only to purposes to which capital money is properly applicable.

(3) For the purposes of the last foregoing paragraph, but without prejudice to the generality thereof, purposes to which capital money is properly applicable shall be deemed to include:-

(a)the payment of any interest falling due within the five years immmediately following the date of the borrowing of any sum of money borrowed by the Commissioners under this article; and

(b)the repayment within twelve months of the date of borrowing of any sum for the time being outstanding by way of principal on any amount previously borrowed.

Temporary borrowing

43.  The Commissioners may borrow temporarily, by way of overdraft or otherwise, such sums as the Commissioners may require for meeting their obligations or discharging their functions under or in pursuance of any enactment:

Provided that the total amount outstanding at any one time of the money as borrowed shall not exceed £50,000.

Reserve fund

44.  The Commissioners may establish and maintain a reserve fund and may determine the monies to be carried to the credit of that fund, the management thereof and the application for the purposes of the Commissioners of the monies comprised therein.

Audit of Accounts

45.-(1) The accounts of the Commissioners shall be audited annually by an auditor or firm of accountants appointed by the Commissioners and a person or firm shall not be qualified to be so appointed unless he is a member, or in the case of a firm all the partners are members, of one or more of the following bodies:-

(a)the Institute of Chartered Accountants in England and Wales;

(b)the Institute of Chartered Accountants of Scotland;

(c)the Assocation of Certified Accountants;

(d)the Institute of Chartered Accountants in Ireland;

(e)any other body of accountants established in the United Kingdom and for the time being recognised for the purposes of section 389 of the Companies Act 1985(11)

(2) The report of the auditor on the accounts of the Commissioners for each financial year shall be submitted to a meeting of the Commissioners as soon as reasonably practicable following the year of account.

PART VIMISCELLANEOUS

Crown Rights

46.-(1) Nothing in this Order affects prejudicially any estate, right, power, privilege, authority or exemption of the Crown including (without prejudice to the general law concerning the applicability of statutes to the Duchy of Cornwall) the Duchy of Cornwall and, in particular and without prejudice to the generality of the foregoing, nothing in this Order authorises the Commissioners to take, use, enter upon or in any manner interfere with, any land or hereditaments or any rights of whatsoever description (including any portion of the shore or bed of the sea or of any river, channel creek, bay or estuary)-

(a)belonging to Her Majesty in right of Her Crown and under the management of the Crown Estate Commissioners, without the consent in writing of those Commissioners; or

(b)belonging to the Duchy of Cornwall or enjoyed by the possessor for the time being of the Duchy of Cornwall, without the consent in writing of two or more of such of the regular officers of the said Duchy or of such other persons as may be authorised under section 39 of the Duchy of Cornwall Management Act 1863(12), or as the case may be, the consent of such Duke testified in writing under the seal of the said Duchy; or

(c)belonging to a government department, or held in trust for Her Majesty for the purposes of a government department, without the consent in writing of that government department.

(2) A consent under paragraph (1) above may be given unconditionally or subject to such conditions and upon such terms as shall be considered necessary or appropriate.

Repeals

47.-(1) The enactments set out in the first column of Schedule 3 to this Order are hereby repealed to the extent specified in the second column of that Schedule.

(2) Notwithstanding the repeal by this Order of any enactment, the persons holding office as Commissioners at the commencement of this Order shall continue to hold office as Commissioners (except for any Commissioner who may die or resign) until the new constitution date and while so continuing to hold office may regulate their own procedure.

Costs of Order

48.  The costs, charges and expenses of and in connection with the preparation, submission and making of this Order (other than those which any person may be ordered by the Secretary of State or a joint committee of both Houses of Parliament to pay, or any costs, charges and expenses incurred in opposing this Order) shall be paid by the Commissioners.

Article 6.

SCHEDULE 1RULES FOR ELECTION OF COMMISSIONERS

1.  In this Schedule-

"electors" means the Padstow electors, the St. Minver electors or the Wadebridge electors, as the case may be;

"relevant area" means the Padstow area, the St. Minver area or the Wadebridge area, as the case may be.

2.  The Clerk for the time being to the Commissioners shall be the returning officer for the election of Commissioners under the provisions of this Order and it shall be the duty of the returning officer to do all such acts and things as may be necessary for effectually conducting the elections in the manner provided by those rules.

3.  The returning officer shall make arrangements for the nomination of candidates for the election in each relevant area, in the case of the first election, of three Commissioners and, in the case of subsequent elections, of one Commissioner and-

(a)as soon as maybe after the coming into force of the Padstow Harbour Revision Order 1987; and

(b)during every subsequent January,

shall publish notice by advertisement in one or more local newspapers circulating in the relevant area and by such other means as the Commissioners may think fit of the closing day fixed for the nomination of candidates for the election to be held that year. The day so fixed must be

(i)for the first election, not earlier than one week or later than three weeks after the first publication of the notice;

(ii)in subsequent years, not later than 14th February.

4.  Any elector for a relevant area may nominate for election as a Commissioner any other such elector and such nomination must be seconded by another such elector to be a valid nomination. A person who is already an elected Commissioner may be nominated as aforesaid for election for a further term of office and a nominator or seconder shall not be disqualified from so nominating or seconding by reason of his being a Commissioner in office. A nominator must deliver his nomination to the returning officer together with a signed statement by the person nominated that he is willing to be nominated for election as a Commissioner.

5.-(1) At the first election, if no more than three candidates are duly nominated each shall be elected without a poll. If fewer than three candidates are duly nominated the Commissioners shall, as soon as practicable after the new constitution date, fill up each vacancy by appointing a person who must be an elector for the relevant area and consenting to be appointed.

(2) At any election after the first, if only one candidate is duly nominated he shall be elected without a poll. If no candidate is duly nominated the Commissioners shall, as soon as practicable after the 1st April in the year in question, fill up the vacancy by appointing a person who must be an elector for the relevant area and consenting to be appointed.

(3) A person who is appointed under sub-paragraph (1) and (2) above shall hold office from the date of his appointment.

6.  At any election, if the number of candidates duly nominated exceeds the number of vacancies a poll shall be taken in accordance with the following provisions of this Schedule.

7.  The votes at the poll shall be given by ballot and every elector shall be entitled to vote.

8.  The ballot of every elector shall consist of a ballot paper and the persons duly nominated for election and no others shall be entitled to have their names inserted in the ballot paper and each ballot paper shall-

(a)contain the names and addresses of the candidates;

(b)shall be capable of being folded up;

(c)shall have a number printed on the back;

(d)shall have attached a counterfoil with the same number printed on the face.

9.-(1) Every ballot paper shall be marked with an official mark which shall perforate the ballot paper.

(2) The official mark shall be kept secret and an interval of not less than five years shall intervene between the use of the same official mark at elections.

10.  The Commissioners shall arrange for the poll to be taken at such place or places within the relevant area as they consider appropriate and between such hours and on such day in each area as they may appoint, being

(a)for the first election, not earlier than fourteen or later than twenty-eight days after the nomination of candidates, and

(b)in subsequent years, not later than 15th March.

11.  At least one week before the day appointed for taking the poll the returning officer shall publish by advertisement in one or more local newspapers circulating in the relevant area and by such other means as the Commissioners think fit a public notice stating-

(a)that a poll is to be taken for the election of Commissioners or a Commissioner as the case may be;

(b)the situation of each polling station;

(c)the description of electors entitled to vote there;

(d)the mode in which electors are to vote; and

(e)the names and addresses of the candidates for election.

12.  The returning officer shall provide a sufficient number of polling stations and, if there is more than one in the relevant area, shall allot the electors to the polling stations in such manner as he thinks most convenient.

13.  The returning officer shall appoint and pay a presiding officer to attend at each polling station and such clerks as may be necessary for the purposes of the election. Such presiding officer shall conduct the taking of votes at the polling station where he presides. The returning officer may, if he thinks fit, act as a presiding officer.

14.-(1) The returning officer shall provide each presiding officer with such number of ballot boxes and ballot papers as in the returning officer's opinion may be necessary.

(2) Every ballot box shall be so constructed that the ballot papers can be put in it, but cannot be withdrawn from it, without the box being unlocked.

(3) The returning officer shall provide each polling station with-

(a)materials to enable voters to mark the ballot papers;

(b)instruments for stamping on them the official mark;

(c)copies of the register of parliamentary electors or such part of it as contains the names of the electors allotted to the station;

(4) A notice shall be printed in conspicuous characters and exhibited inside and outside every polling station stating-

(a)in the case of the first election that an elector may vote for not more than three candidates and, in the case of subsequent electors, that an elector may only vote for one candidate; and

(b)that an elector should indicate the candidates or, in the case of elections other than the first, the candidate, for whom he wishes to vote by marking a cross on the ballot paper against each of their names or, as the case may be, the name of that candidate.

15.-(1) A ballot paper shall be delivered to an elector who applies for one and immediately before delivery-

(a)the ballot paper shall be stamped with the official mark;

(b)the number, name and description of the elector as stated in the register of parliamentary electors shall be called out;

(c)the number of the elector shall be marked on the counterfoil;

(d)a mark shall be placed in the register of electors against the number of the elector to denote that a ballot paper has been received but without showing the particular ballot paper which has been received.

(2) The elector, on receiving the ballot paper, shall forthwith proceed into one of the compartments in the polling station and there secretly mark his paper and fold it up so as to conceal his vote, and shall then show to the presiding officer the back of his paper, so as to disclose the official mark, and put the ballot paper into the ballot box in the presiding officer's presence.

16.-(1) The presiding officer, on the application of an elector-

(a)who is incapacitated by blindness or other physical cause from voting in the manner directed by these rules, or

(b)who declares orally that he is unable to read,

shall cause the elector's vote to be marked on the ballot paper to be placed in the ballot box.

(2) The name and number on the register of electors of every elector whose vote is marked in pursuance of this rule, and the reason why it is so marked, shall be entered in a list entitled "the list of votes marked by the presiding officer".

17.  An elector who has inadvertently dealt with his ballot paper in such manner that it cannot be conveniently used as a ballot paper may, on delivering it to the presiding officer and proving to his satisfaction the fact of the inadvertence, obtain another ballot paper in the place of the ballot paper so delivered (in these rules referred to as "a spoilt paper"), and the spoilt paper shall be immediately cancelled.

18.  As soon as practicable after the close of the poll, the presiding officer at each polling station shall deliver to the returning officer-

(a)each ballot box in use at the station, sealed so as to prevent the introduction of additional ballot papers and unopened, but with the key attached;

(b)the unused and spoilt ballot papers;

(c)the marked copy of the register of parliamentary electors;

(d)the counterfoils of the used ballot papers;

(e)the list of votes marked by the presiding officer.

19.  The returning officer shall make arrangements for counting the votes and the count shall be proceeded with as expeditiously as possible. Any ballot paper on which the elector has voted for more than, in the case of the first election, three candidates or, in the case of subsequent elections, one candidate or which, in the opinion of the returning officer, has not been sufficiently clearly marked, shall be disregarded.

20.  After the votes have been counted, in the case of the first election the three candidates having the largest number of votes shall be declared to have been elected and, in the case of subsequent elections, the candidate having the largest number of votes shall be declared to have been elected. In the case of a critical equality of votes the returning officer shall determine by lot which of the candidates in question shall be declared elected.

21.  As soon as practicable after the conclusion of the procedure prescribed by the foregoing provisions of this Schedule the returning officer shall publish the names of the person or persons who has or have been elected as a Commissioner or Commissioners in at least one local newspaper circulating in the relevant area.

22.  The returning officer's decision upon every question which may arise as respects the procedure at and the conduct of an election shall be final.

Article 10

SCHEDULE 2PROVISIONS APPLYING TO THE COMMISSIONERS

1.  The first meeting of the Commissioners after the new constitution date shall be convened by the Clerk to the Commissioners as soon as reasonably possible after that date and the Clerk shall send notice of that meeting by post to each of the Commissioners.

2.-(1) At the first meeting of the Commissioners after the new constitution date and at the first meeting of the Commissioners in each year thereafter the Commissioners present at the meeting shall choose a Commissioner to act as their chairman and at that meeting or any subsequent meeting the Commissioners present may choose another Commissioner to act as deputy chairman.

(2) So long as they continue as Commissioners the persons chosen under sub-paragraph (1) above to act as chairman and deputy chairman respectively shall hold office as such from and including the meeting at which they are chosen until the next appointment of a chairman.

3.-(1) If any casual vacancy occurs in the office of chairman the Commissioners shall as soon as may be after the occurrence of such vacancy choose some other Commissioner to fill the vacancy.

(2) If any casual vacancy occurs in the office of deputy chairman the Commissioners may choose some other Commissioner to fill the vacancy.

(3) So long as they continue as Commissioners every person chosen under this paragraph to act as chairman or deputy chairman shall continue in office as such so long as the person in whose place he has been so chosen would have been entitled to continue in office if the casual vacancy had not occurred.

4.  In the absence of the chairman the person for the time being holding office as deputy chairman (if any) shall have and may exercise all the powers of the chairman.

5.  If at a meeting of the Commissioners neither the chairman nor the deputy chairman are present the Commissioners present in the meeting shall choose one of their number to be chairman for the meeting.

6.  The Commissioners may act notwithstanding a vacancy among the Commissioners and no act of the Commissioners shall be deemed to be invalid by reason of any irregularity in the apppointment of a Commissioner or of their chairman or deputy chairman.

7.  A Commissioner shall vacate his office if he-

(a)is adjudged bankrupt or makes a composition or arrangement with his creditors; or

(b)is convicted in the British Isles of any offence and ordered to be imprisoned for a period of not less than three months without the option of a fine; or

(c)has, for a period of four consecutive months, been absent from meetings of the Commissioners otherwise than by reason of illness or some other cause approved during the period by the Commissioners.

8.  A Commissioner may resign his office at any time by notice in writing given to the Clerk to the Commissioners.

9.  If at any meeting of the Commissioners there is an equality of votes on a question the chairman of the meeting shall have a second or casting vote.

10.  The quorum required for a meeting of the Commissioners shall be five and the Commissioners shall meet at least twelve times each year.

11.  If a Commissioner has any pecuniary interest in any contract or proposed contract to which the Commissioners are or would be a party or is a Director of a Company or Body with which the contract or proposed contract is made or proposed to be made and is present at a meeting of the Commissioners at which that contract is the subject of consideration he shall at that meeting as soon as practicable after the commencement thereof disclose the fact and shall not vote on any question with respect to that contract.

12.  The Padstow Harbour Commissioners may pay their chairman and the other Commis-sioners such reasonable fees, allowances and travelling expenses as the Commissioners may from time to time determine:

Provided that no such payment shall exceed the maximum amount that would have been payable by way of attendance, travelling and subsistance allowances under section 173, 174 and 175 of the Local Government Act 1972(13) if the Commissioner concerned were a councillor and a member of a local authority (other than a parish or community council).

13.  Subject to the provisions of this Schedule the procedure and business of the Commissioner shall be regulated in such manner as the Commissioners may from time to time determine.

14.  The Commissioners may appoint such committees consisting of Commissioners as they see fit and may delegate to a committee apppointed under this paragraph any of their powers or duties except their power to borrow money.

Article 47

SCHEDULE 3REPEALS

Explanatory Note

(This note is not part of the Order)

This Order re-constitutes the Padstow Harbour Commissioners providing for one Commissioner to be appointed by the Lord of the Manor of Padstow, and three Commissioners each to be elected by electors of Padstow, St. Minver and Wadebridge.

The Order also replaces the existing powers and duties of the Commissioners with up-to-date provisions.