OPLAC HRO Submission 2022
PLA Harbour Revision Order Consultation, 2021
Case ref : HRO/2020/00005
This is OPLAC’s response to the HRO consultation. OPLAC is the Organisation of Port of London Authority Customers, a group set up in 2009 to defend PLA customers and consisting largely of residential marinas, residential River Works Licence holders and individual houseboat owners. Please see www.oplac.org for further details.
2. Format of response
The format of this response, from “4 Response in Detail” below, follows the 1968 Port of London Authority Act in order, with the proposed amendments included. That document has been provided by the PLA and is available at
www.pla.co.uk/assets/plahro-markupoftheportoflondonact1968july2021.pdf The numbers for each paragraph are the same numbers used in the Act as amended.
We also refer to the PLA’s Statement in Support available at www.pla.co.uk/assets/plahro-statementinsupportjuly2021.pdf .
If there is any doubt in our response as to whether we are making a formal objection or not, please take it that we are. We have only raised sections that we object to.
3. Previous Responses
We also responded in 2019 and again in 2010. Many of our comments then are still pertinent. In particular we responded to the PLA in 2019:
“10. Given the wide scope and complexity of the proposed HRO we are disappointed that the notice of the HRO was not sent to River Works Licence holders. Those to whom it was sent received it at possibly the worst time of year, ending on the day of a general election and 12 days before Christmas.
11. We suggest that the consultation is re-sent out to all RWL holders and moreover, given the length and huge scope of the proposed revisions, that the changes or additions that particularly affect them are highlighted.”
Therefore we are very disappointed that again the HRO consultation was not sent to all River Works Licence (RWL) holders. Many, especially smaller RWL holders where one houseboat exists on one licence, will be unaware that the HRO is in progress and will therefore have been disenfranchised.
Given that the HRO is an extraordinary device whereby the PLA can change a private Act of parliament (the 1968 Port of London Authority Act) without the normal parliamentary process, this lack of proper public consultation is particularly concerning.
4. Response in detail
2 (1) The word “fees” is added to the Act to supplement the existing “charges, rates, tolls and dues”. The PLA say in their Statement in Support “The definition has been expanded to make it clear that fees payable for a works, dredging or mooring licence are included in the term “charge”. “ They do not say why it is necessary to make this clear and no evidence is provided as to how this change will contribute to the better running of the harbour, or even as to what benefit it is to the PLA as an organisation. We infer that there is some legal benefit to the PLA, perhaps some case history which turned on the omission or existence of the word “fees”. In any case the PLA need to make clear what their reason is, as well as the implications of the change, so that we can fairly comment on this addition. In the absence of that information we oppose the change.
2 (1) The addition of “commercial and club boats” means any vessel (other than a ship registered under the Merchant Shipping Act 1995 or any vessel usually used for navigation) which is used primarily as a place for accommodating or receiving persons for the purpose of, recreation, entertainment or refreshment, or as club premises or offices while it is moored; ”
The PLA say “This definition has been added to help clarify the definition of vessel and the definitions of master and owner in relation to boats used for a variety of commercial or club purposes.” There then follow 4 new occurrences of the phrase “commercial or club boat” in the proposed new Act, each time linked with “houseboats”. There is no explanation as to why the ‘clarification ;’ is needed nor how it will contribute to the better running of the harbour. The PLA need to make clear what their reason is, as well as the implications of the change, so that we can fairly comment either way on this addition. In the absence of that information we oppose the change.
2 (1) A new definition of “dredge” has been added. This would now include “water injection or agitation” devices. We believe this would restrict the use of household water pressure washers to level moorings and thus would impact houseboat owners concerned that their vessels are tilting at low tide. It appears to us that the PLA are seeking to impose rules and restrictions that may be appropriate for commercial dredging operations onto individual houseboat owners who simply seeking to secure their moorings. We think the PLA should either withdraw this change or insert a new provision that allows for small scale levelling of the river bed under houseboats with no or minimal restrictions
2(1) The addition of "dredging permission". Our comments and objection above apply.
2 (1) The addition of “and anyone else the Port Authority authorises to carry out any functions of a harbourmaster;”. This extends the definition of harbourmaster to anyone the PLA like, including for example non employees of the PLA. The PLA’s Statement in Support says “The type of people who will be authorised are the officers in Port Control and officers undertaking vessel inspections” however this is not included in the definition they propose for the Act. So we think this addition is ill thought out and languorous. Given the extensive powers given to harbourmasters we think this should be withdrawn or at least re-worded with proper limitation.
2 (1) The addition of “"houseboat" means any vessel (other than a ship registered under the Merchant Shipping Act 1995 or any vessel usually used for navigation) which is used primarily as a place of habitation;”. We find this definition unfit for purpose. A houseboat can be “usually used for navigation” yet still a houseboat. Equally a houseboat may not be ‘primarily a place of habitation’. Lastly the PLA do not explain why a houseboat cannot be registered under the Merchant Shipping Act. Pending a better thought through definition we object to this addition.
2 (1). The addition of “(whether lawful of not)” to the definition of “master”. No explanation is provided for this change nor is any evidence provided as to why it is needed. Failing this we object to the addition.
2 (1) The addition to the definition of “master” , namely: “in connection with a houseboat or commercial and club boats it means the owner or if the owner is not in occupation any person who is in occupation for the time being; “. This is an ill thought through addition. It could make the master of a houseboat a 12 year old child. If several people are in occupation it is not clear which one would be the master or if all would be. Equally an elderly owner could be present but clearly not acting as the master. Or the owner could be a company. The PLA’s Statement in Support does not assist. We think this addition should be removed or revised.
2 (1) The removal of “(except in Part VI and Part I of Schedule 5 to this Act)” from the definition of “Minister”. This clearly has legal implications but they are not explained. No examples of why this is needed is provided.
2 (1) The addition to the definition of “mooring “ to include “make fast a vessel to any work or chain or other vessel not underway or any thing, and "moor" and "moored" have corresponding meanings;”. This would expand the term mooring to include for example temporarily pulling alongside another vessel not under way, as soon as a line is secured. It might prompt vessels not to secure a line, thus encouraging a dangerous practice. Currently tying up to a vessel or object for a short period rightly falls outside the definition of “mooring”. The PLA do not provide reasoning or evidence as to why this change is needed.
2 (1) The addition of ““navigation” means the movement on or in the water for whatever purpose of any vessel, whether travelling between two locations or not, but does not include any vessel under tow;” This is an ill thought through and over zealous amendment. The Thames is a tidal river, houseboats move up and down twice a day with the tide often 7 metres, secured by ropes or attached to piles to pontoons. The PLA’s Statement in Support says this is to “include a vessel which undertakes a round trip starting and ending at the same location” which ironically is exactly what a moored boat would do in a full tide. The PLA provide no evidence either that round trips were not counted as ‘navigation’ nor that it was a problem. In addition houseboats may be moved a few feet along a pontoon or onto a tidal grid for maintenance or inspection of their moorings, we do not consider that this needs to be re-classified as ‘navigation’.
2 (1) The addition to the definition of “owners of “"owner" means, in relation to a vessel, the owner of a vessel and any person having any interest in a vessel (whether as joint owner, lessee, charterer, mortgagee or otherwise) and includes the registered owner and a person letting a vessel for hire whether or not that person owns the vessel and in reference to houseboats or commercial and club boats includes the occupier or manager; “.
The PLA’s Statement in Support says “This definition has been extended to cover any person with an interest in a vessel as well as the occupier or manager of a houseboat or commercial and club boats.” They provide no explanation as to why this is necessary for the better running of the harbour nor any evidence of what problem it is to address. Our comments above about ‘houseboat owners’ applies. The new definition would define as owner all part owners (e.g. all shareholders in a company which may own a vessel perhaps as a minor interest – a shareholder in British Petroleum would be consider an owner of a tanker). It would define the charterer of a vessel as an owner, presumably in addition to the actual owner, and ranking parri passu with them. Should a bank issue a mortgage on a vessel then they would also become the ‘owner’. This addition is presumably intended to address some current problem (which is unidentified) but is so poorly constructed as to be of no use.
2 (1) Changes to the definition of “pleasure vessel”. These legal changes are unexplained. The Statement in Support says only “This definition has been amended to reflect the meaning in the Merchant Shipping (Boatmasters’ Qualifications, Crew and Hours of Work) Regulations 2015.”. No explanation is provided as to why this change needs to be made or what problem it seeks to address.
2 (1) The addition of “"port rates" means any charges levied by the Port Authority in relation to goods;. This vastly extends the meaning of port rates. Goods are already defined in the Act as “all tangible personal property of any kind whatsoever”. The PLA levy many charges including fees for houseboats in the form of River Works Licence fees. We do not think these are meant to be “port rates” or that the PLA intend them to be. This needs to be reworded with more work put in rather than attempting an easy ‘catch all’ definition.
2 (1) The removal of “"river authority" means a river authority constituted under the Water Resources Act 1963 and includes the Lee Conservancy Catchment Board;”. The PLA’s Statement in Support says “This definition has been repealed because all bodies which were formerly river authorities have had their powers and duties taken over by the Environment Agency.” However the Act with all the proposed PLA amendments still makes multiples references to “river authorities” see sections 75(8) and 198 (extensively). This needs more work than a simple removal of the definition. Also a clearer explanation of the need is required.
2 (1) Removal of the definition of the Surrey Canal. The PLA statement of in Support says “This definition has been repealed because the term is no longer used in the Act. ”. However the Surrey Canal does appear in section Schedule 7 Section 180, Maintenance Operation And Lighting Of Bridges, Footways And Other Work. In fact the PLA propose removal of Section 180 in this very HRO. So the justification seem circular – the definition is to be removed because it is not used but it is not used only because the reference to it is to be removed. Further explanation at least is required.
2 (1) The addition of “terminal” means a terminal, jetty, pier, wharf, or mono-buoy used by ships which is within a harbour but is managed by persons or a body of persons other than the harbour authority for that harbour;” and ““terminal operator” means a person or body of persons having, for the time being, the management of a terminal;”, combined with 22 (1) (b) ‘Charges Regulations’. This is a very wide definition and inexact definition. For example it is not clear whether ‘terminal’ is now to be defined to include the river works used for houseboats, which often include jetties, piers wharfs and buoys. If so Section 22 provides a new and unnecessary power over existing River Works Licence holders which we oppose. In any case the wording needs to be refined.
2 (1) The addition of “"Thames waterman" means a person having charge of a vessel (other than a pleasure vessel) underway or working on the Thames and includes a Thames lighterman;]”. This is ill-thought through and unworkable. It would include anyone in charge of a houseboat (since that is likely not a pleasure vessel). We presume this is not what the PLA intended.
2 (1) Changes to the definition of ‘trader’, specifically the removal of ‘import’ and ‘export’. Because the definition of goods is so widely defined (“all tangible personal property of any kind whatsoever”) this change to the definition of trader becomes a problem. Before the change, only imported or exported goods are pertinent when defining a ‘trader’. With this change any owner of any tangible personal property of any kind whatsoever becomes a ‘trader’ for the purposes of the Act, as soon as they just intend to transport such property. They therefore become liable for port rates, as does anyone shipping or receiving the tangible property. Any pleasure boat or houseboat could become a trader. Admittedly this problem stems from the existing excessively wide definition of ‘goods’. The PLA might be better directed in refining that definition. Failing that they should not compound the error by unintentionally widening the problem with these changes.
2 (1) Changes to definition of “vessel” to include “ whether or not it is capable of self Propulsion” and ”whether or not used for navigation” and includes “a houseboat, commercial and club boats “. This change makes houseboats liable for regulations relating to vessels whereas before it was not certain that they were. This has necessitated some further changes by the PLA e.g. the addition of exception (d) to Section 124. Unlicensed vessels not to be navigated. However it is not clear that every necessary exception has been added. We have not identified every such example but append the following:
Section 21 (b). Power to make certain charges (demand, take and recover such charges as they think fit).
Section 22. Charges regulations.
Section 23 (a) Arrangements with Her Majesty’s Revenue and Customs (HMRC may produce to a duly authorised officer of the Port Authority any records or papers in their custody relating to any vessel or goods and the owners of any vessel and goods).
Section 36. Security for charges and consideration (Port Authority may detain a vessel).
Section 38. Entry on vessels (an officer of the Port Authority may on producing, if so required, his that authority, board a vessel).
Section 39 Recovery and enforcement of charges (seize and detain the vessel or all tangible personal property of any kind whatsoever on the vessel, or sell the vessel).
Section 66A Permitting of mooring (grant or revoke permission to moor for a vessel, evn if they have a River Works Licence).
Section 70 Works, mooring or dredging without works permission (deny permission to moor for a vessel, even if they have a River Works Licence, remove any mooring and any vessel).
There are further examples. In short a houseboat may now be caught by existing and new provisions in the Act which are likely intended only for cargo and commercial boats. A houseboat moored on a valid River Works Licence could be boarded and Inland Revenue data on its owner obtained, it could be seized and detained and it could have all its property seized (albeit not including “any tools or other items of equipment necessary for the employment of any person, or such clothing, bedding or furniture or domestic equipment and provisions as are necessary for satisfying their basic domestic needs”).
Suffice to say the PLA need to clearly identify all instances where regulations and sanctions against ‘vessels’ are not aimed at houseboats. They have not done this, therefore we ask that ‘houseboat’ not be explicitly included in the definition of ‘vessel’ until this is done.
2 (1) Changes to the vessel licensing area. The Statement in Support says “This has been amended because the vessel licensing area should be effectively the whole of the Thames, including the estuary, designated as inland waters, not just that part of the river to the former seaward limit.” It is not explained why the area should be so expanded, it just says it should be. There is no supporting evidence to show why this will contribute to the better running of the port. There is no evidence to identify any issues caused by the having the existing limit. Furthermore the expansion is not clearly identified (e.g. by a map), furthermore it is not even described as an expansion yet we believe it is. For such a significant ‘land grab’ the PLA need to provide much better explanation and justification.
2 (1) Changing ‘licensing’ to ‘permitting’ in the definition of ‘works’. The PLA’s Statement in Support says simply “This definition has had minor amendments to reflect the amendments to Part V permitting Regime”. The HRO introduces a large number of changes of the word ‘licensing’ to ’permitting’ or similar, approximately 30. At no point can we find an explanation of this change. We assume that there is some legal reason, perhaps some case history which turned on the omission or existence of the word “permission” or “licence”. In any case the PLA need to make clear what their reason is, as well as the implications of the change, so that we can fairly comment on this addition. In the absence of that information we oppose all the changes.
2 (1) Changes to the definition of “Yantlet Line” extending it on the same trajectory up to the mean high water level on either side of the Thames. The Statement in Support says “This definition has been amended to reflect the fact that the London Stone North is now in the water and the Crow Stone is on the foreshore. The limits extend beyond these two stones on the same trajectory.” However the London Stone is not in the water it spends most of its time dry and has its footings under water at high tide. The Crow Stone is even less ‘in the water’. The PLA Statement seems to suggest that both stones have been overtaken by sea level rise however they provide no evidence of this. No benefits for the running of the port are identified in this change. So to us this move to extend both ends of the Yantlet line to the mean high water mark appear to be a simple ‘land grab’ by the PLA.
This point also applies to Schedule 1 Section 2 Description of Port Limits, changes to landward and seaward limits.
4A. Protection of members of the Port Authority (New section), parts 1 and 2.. This section has been added, according to the Statement in Support, “It exempts members of the Board from personal liability for their lawful actions as members of the Authority and provides for their indemnification by the Port Authority and for the Port Authority to take out insurance to cover this liability”. Thus it appears to be contradictory – part 2 is indemnifying members for a liability from which they are being exempted in part 1. This is ill thought through and in any case more explanation of the need to do either of these powerful things is surely required.
4A. Protection of members of the Port Authority (New section) part 3. This section is of particular concern. Unlike in parts 1 and 2, the word “unlawful” is omitted. Thus the PLA are, in part 3, allowing themselves to insure their members against unlawful acts. No public body should be in a position to do this, it is effectively protecting unlawful acts. Furthermore it not only protects them from doing things they did not know to be a breach of their duty, it protects them from things they were “reckless as to whether it was such a breach.” Extraordinary.
5 (2A) , New section. This gives the PLA the power to invest “resources in any investments as they consider necessary or desirable for the benefit directly or indirectly of their undertaking.” A quite remarkably wide latitude. The Statement in Support says only “This achieves the objects of regulating the application of moneys in the nature of revenue and securing the financial affairs of the Port Authority are properly managed [sic] set out in paragraph 13 of Schedule 2 to the Harbours Act 1964.” We humbly suggest this is gobbledegook, even without the obvious typo. It does not explain why such latitude is required nor how it will benefit the better running of the port.
7 (2). Hydrographic surveys. Section (2) has been re-written (rather sneakily we feel) to remove the obligation to publish “all surveys made by them in connection with the discharge of their functions” and instead allow them to publish only such surveys “as they consider should be published”. No legitimate reason is given as to why surveys should be withheld and we don’t believe there is any. At the minimum in section 2 “subsections (1) and (1A)” should be reworded to simply “subsection 1A” which would allow the PLA to keep secret only the new surveys in section 1A they are giving themselves the power to conduct. They should not be giving themselves tghe power to keep secret the Thames surveys they are current obliged to publish. However we do not believe the PLA should be conducting any secret surveys, of if they want this power it should be in exceptional circumstances which are listed. Either in specific or general terms. For example either “excluding surveys of the wreck of the SS Richard Montgomery” or “excluding surveys which if made public could be considered of use for acts of terrorism” (incidentally we note that surveys of the Montgomery are currently publically available).
8A Annual Report. We believe “make that report available” should be amended to read “make that report publically available”. It is perfectly possible to put a report on a website yet make it not publically available, we assume the PLA does not intend to do this and our wording clarifies an unnecessary ambiguity. As the wording stands we object to it being incorporated in the Act – such information should be freely available.
8A Annual Report “(b) at their principal office, at a reasonable price, if demanded.” This section makes it unclear whether the website version is to be free or to be ‘reasonably priced’. We expect the PLA intend not to charge for the website version therefore the addition of “without charge” to the end of “make that report publically available” in section 8 (a) should be made. As the wording stands we object to it being incorporated in the Act – such information should be freely available.
11 Powers relating to land, sections (1) and (2). No explanation is given as to why the PLA now needs the right to acquire easements or licences over land, or as to why it needs to be made clear. The PLA should provide some examples of either when the right was not clear or when they needed the right and found they did not have it in the 1968 Act. They should also say how this change would contribute to the better running of the port. In general and with our past experience with the PLA, we find these changes of powers relating to land quite disturbing.
11 Powers relating to land, section (3) and (3A-3F). This large addition to the Act gives the PLA a new power to “grant a licence for use of land or the discharge of water into the Thames” as well as “the grant of .. an interest in or rights over or under or a right to use land“. We do not believe the PLA have justified this power grab either in terms of citing examples or identifying how this will contribute to the better running of the port. It seems instead to contribute to the better (more profitable) running of the PLA.
11A. Application of landlord and tenant law (new section). Despite the title this section is intended to remove any possibility of protection for River Works Licence holders provided by current or future landlord and tenant law. We do not believ this is an appropriate addition to a harbour act. In the Statement in Support the PLA say “The security of tenure provisions under landlord and tenant law do not apply in relation to river works under the present regime”. If so why is it necessary to insert a new clause in the 1968 Act to explicitly remove the provisions? It can only be because (a) the PLA are in doubt as to whether RWL holders can tenant protection or (b) the PLA fear that in future landlord and tenant legislation RWL holders may gain such rights. It is not for a harbour authority to exempt itself from any current or future landlord and tenant legislation – why should they be exempt? The PLA provide no explanation or examples.
13. Power to acquire securities, lend money and give guarantees. This is to be amended to now include “any subsidiary of the Port Authority”. We find this a disturbing amendment that will make the running of the port more opaque. The Statement in Support says “the PLA provide companies or groups along the river and may want to do so via a subsidiary as opposed to the Port Authority itself. “ However they do not explain why they would want to do this or how doing it in such and indirect way contributes ot the better running of the port. It may be the case that is does, nonetheless the PLA need to explain. Until such time as they do so, satisfactorily, we object to the three changes to section 13.
21. Power to make certain charges 1 (a) and (b). These amendments allow the PLA to now make charges on any floating plant or any goods moving within their area. Previously such charges were limited to plant or goods entering or leaving their area. This is an extraordinary increase in scope and it seems would include a massive amount of activity within the port area which was previously excluded. Moreover fees for goods moving within a port do not seem to us to be the usual remit of a port – historically and almost by definition port fees are made only on goods entering or leaving a port. We do not think the ramifications of this change have either been thought though or indentified. It opens up all activity within the port area to possible new fees. For example any passenger traffic within the area. Or any movement of any items within the area. We can see how it could benefit the PLA, it could be a licence to print money from economic activity in London. We cannot see how it would contribute to the better running of the port.
21. Power to make certain charges (2) (a). This addition would allow the PLA to charge professional fees in relation to the new charges in Section 11 we objected to above. Rubbing salt into the wound... If the PLA are gaining income from their new powers in section 11 then they should bear the professional costs they incur themselves, like normal businesses do. No explanation is given as to why the PLA should pass their own costs onto their customers.
21. Power to make certain charges (3). The rather extraordinary addition allows the PLA to waive or rebate such charges made under section 21, to anyone, as they see fit. This does not contribute to the transparent or fair running of the harbour, quite the opposite – it would allow the PLA to pick and choose who they wanted to charge. Even worse it would allow them to arbitrarily rebate some charges to some people. At best it would encourage favouritism, at worst corruption.
22. Charges regulations. This is amended to include the ill-defined “terminal operators”. We object please see our comments above on the definition of “terminal operators”. It is also amended to include River Works Licence (now ‘permission’) holders and ‘mooring permission’ holders. No information is provided in the Statement in Support as to why these need to included, how including them will contribute to the better running of the port or what issues have arisen in the past because of the lack of this provision. The Statement in Support simply says “section 22 is amended to extend those required to provide information in relation
to charges to include terminal operators, holders of a works, mooring or dredging permission, owners of a work to which a vessel on which charges are payable is moored. “ No reason is provided. Residential RWL holders and the PLA have managed for decades without this onerous extension of powers.
27. Exemption from charges at Richmond lock and slipway. Deletion of “No charge shall be made for the use of Richmond lock or slipway-
(a) by trading barges and tugs towing them; or
(b) by a vessel returning through the lock or slipway on the day of its original passage.”.
The Statement in Support says of this change “These are obsolete exemptions relating to trading barges and it is the case that no freight currently, or has for many years, transited through the Lock. This is an historic provision which is being removed as it is no longer relevant.”
However the current Act wording section 27 (b) allows any retuning vessel to be exempt, whether it is a trading barge, carrying freight or not. Currently the PLA charge all vessels regardless of size, draught or displacement £8.00 to use Richmond Lock (http://www.pla.co.uk/About-Us/Richmond-Lock-and-Weir ). This fee is resented by many small boat owners. Seemingly the £8 is being charged outwith the Act for boats that return (only the second £8 is currently being waived, not the whole fee). So the PLA are not abiding by the Act and their solution is to simply delete the exemption section and claim it is obsolete. It clearly isn’t obsolete for non trading vessels and the PLA need to provide a justification as to why the exemption is to be removed.
39. Recovery and enforcement of charges and consideration. The rather badly worded amendments to this section would appear to allow houseboats to be seized where RWL fees have not been paid. The wording is poor mainly because of the circular reference “Subsection (2A) and subsection (2B) apply if a charge or any consideration referred to in subsection (2B)(b) is not paid ...” It is not clear how a subsection can apply contingent on a subsection of that very subsection. In any case it is clear that both mooring permissions and works permissions are now to be included in this section, allowing for the seizure of offending vessels. Houseboats have never before been subject to such seizure and the PLA do not explain why they need this power now, nor do they identify how not having the power in the past counted against the good running of the port. We object to such a draconian power being added to the Act.
Furthermore within section 39 there are numerous deletions of ‘within a dock’ or similar which vastly extend the PLA’s power of seizure to vessels moored up at their recreational or residential moorings/works. It is not clear if the PLA intended to enter the business of seizing and detaining private houseboats and pleasure boats but they shouldn’t be. Nor should they grant themselves the power to do so. In the 1968 Act the powers were clearly directed only at goods vessels in a dock.
Furthermore the changes to section 39 (e.g. (4) (e), (7), (9), (12) et al) would now allow the PLA to sell not just the seized vessel, but also the ‘work’. For residential marinas this would be devastating, if achievable (how could the piles in the riverbed be sold?).
We note that the PLA have, seemingly as an afterthought, added section (13). This section excludes from the seizure and sale “any tools or other items of equipment necessary for the employment of any person, or such clothing, bedding or furniture or domestic equipment and provisions as are necessary for satisfying their basic domestic needs”. So at least the poor person whose houseboat and river works have been seized and sold can still work and have a mattress to lie in the street on. We do however suspect that section 13 has been added to avoid the PLA breaching basic human rights legislation (even though they have already exempted themselves from all landlord and tenant legislation (see above)!). For the avoidance of doubt we do not oppose section 39 (13). In fact I think it is the only amendment mentioned here which we support.
46. Port Fund. The PLA want this section to be abolished. The Statement in Support only says “Section 46 (Port Fund) is repealed as it is no longer feasible to carry all receipts to and make all payments out of the port fund and there is no longer any need to retain the fund.” No information is provided about the fund. If it was feasible in 1968 to maintain this fund then you would expect it to be much easier now, not ‘no longer feasible’. The PLA need to demonstrate why this section needs to be removed. To us it seems intended to promote transparency and better running of the port.
48. Borrowing powers. The Statement in Support says “Section 48 has been updated to provide a new general and unrestricted power to borrow, which will not need ministerial approval. It is based on precedent in other harbour legislation.” We read that as saying other ports have it why can’t we? This is not enough reason to delete parts of an Act or parliament. The PLA need to give concrete reasons why they need to borrow without securing assets.
The Statement in Supports adds ” This achieves the objective in paragraph 10 of Schedule 2 to empower the Port Authority to borrow money with or without limitation with respect to the amount that may be borrowed or the time or manner in which the power may be exercised.” However it is not clear to us that the rather drastic move of removing the requirement to provide securing assets for a loan is necessary to meet paragraph 10 of Schedule 2 (Harbours Act). The current Act wording allows the PLA to borrow as much money as they have assets to secure it on. We think this may meet the requirements of the Harbours Act already. In which case the PLA need ot provide much better reasoning for the deleting of what seems to us a sensible rule for their borrowing, already written into their founding Act.
63. Removal of private moorings. This section of the existing Act has received a severe pounding from the HRO. A large amount of onerous obligations are to be added to owners of historic mooring which date from 1857. Clearly the PLA remain irked by the fact that they cannot charge fees for moorings which existed long before they were created. As well as being against natural justice these changes appear to us to be petty and vindictive (the PLA lost a court case on this in 2013 on this). They would be better focused on the well running of the port. Despite the lengthy commentary on this topic in the Statement in Support no clear advantages for the well running of the port are provided. We think all changes to section 63 should be abandoned.
66. Licensing/Permitting of works. This is another section which receives a lot of attention from the proposed HRO. The Statement in Support says “whereas a works licence had previously granted a property right as well as statutory authority for the works to impede the public right of navigation, under the revised regime section 66 will confer only the statutory authority,
leaving the property rights to be conferred separately.” So this is a major reduction in the rights provided by a River Works Licence. As well as the entirely new requirement for a “mooring permission” with associated fees.
It is not clear that vessels moored to existing licensed river works will now also require the new “mooring permission”. It is also not clear that existing River Works licence holders are exempt from the new draconian requirements for tghe new “works permission”. The Statement in Support says “A transitional provision... confirms that the rights conferred upon the holder of the works licence by section 66(1)(b) will continue to apply notwithstanding the repeal of that provision.” However this is far from clear. It is very disturbing that new and very onerous conditions may be applied to existing moorings/works and that property rights may be split off from those rights. Also it is worrying that section 70 amendments may apply to existing licences, resulting in the possible removal of existing moorings/works which have been happily existent for decades.
The PLA did not notify existing River Works Licence holders of this HRO let alone explain to them the consequence to them of this major change. We think this section’s changes should be withdrawn pending a full consultation with all existing River Works Licence holders.
67. Consideration for licence/Charge for permission. The existing right to apply to an arbitrator to determine the fees (failing agreement) is to be withdrawn. Instead the Act will now say just “The Port Authority may charge a reasonable fee”. That is an outrageous removal of a fundamental right.
68. Exemption for works authorised or powers conferred before 17th August, 1894. This section is proposed for removal. The Statement in Support says it “is repealed on the basis that any works authorised before that date will have been completed a long time ago.” We think the PLA may have (rather incredibly) misunderstood the meaning of ‘works’ in the Act. Works are such things as piles and pontoons. They are not ‘work in progress’. Once installed they are not ‘completed’, they remain. If instead the PLA mean the 1894 ‘works ‘ will have rotted away a long time ago, that does not take into account of the maintenance of works. For example the PLA’s own ‘works’, Richmond Half Lock AKA "the Richmond works", dates from 1894 and remains.
70A. Emergency safety notice. This new section is badly worded to the point of being unusable. It says “if in the reasonable opinion of the Port Authority a work.. or moored vessel has, or is likely to, become an obstruction.. to the ..convenient navigation or use ... of the Thames as a result of – (a) any works, mooring or dredging for the carrying out of which a works permission, a mooring permission or a dredging permission is or was needed...” First of all, all River Works are obstructions to the convenient navigation of the river, that is why they are licensed. Secondly the whole sentence doesn’t make sense – a work or mooring could make navigation inconvenient because of another work or mooring? This section needs to be re-thought. Incidentally the word ‘convenient’ is also used in other parts of the HRO e.g. section 66 – it needs to be re-thought. ‘Convenient’ is not on the same level as ‘danger’ when deciding whether to remove or licence works.
75A Transfer of work or mooring. This new section puts onerous and unnecessary regulations upon the sale and transfer of houseboats and river works. It appears to mean that rights associated with works licences held before this HRO, even if they are protected, will be lost upon transfer as a new licence will need to be issued.
137. Boarding Powers of inspection of works and vessels. This heavily amended section introduces ridiculous and unacceptable powers to board residential and pleasure boats. Supposedly residential boats are protected - the relevant passage is "(9) The powers to enter or board a vessel in subsection (1) do not extend to entering so much of the interior part of a houseboat as is being used for residential purposes..."
But only the residential part is protected - if you have a work-from-home office on your houseboat the PLA could enter that, take photographs (137 (2) (c)), seal it off (137 (2) (b)), dismantle it (137 (2) (d), take possession of and detain any article in it (137 (2) (e)) and use it as evidence for any breach of any part of the PLA Act (137 (2) (e)).
They can also require the production of, and inspect and take copies of … any other books or documents which the authorised officer considers it necessary to see (137 (2) (f)).
The authorised PLA officer can also require any person on board ... to afford such facilities and assistance... as the authorised officer considers would facilitate the exercise of any power conferred by this section (137 (5)).
Lastly you have to give them your name and address or be fined £1,000 (137 (8)).
All in all an Orwellian vision for people living on houseboats and considerably stricter than rights which an equivalent person living on land would enjoy.
Chair of OPLAC