Fight4Whitby questions the Maritime Hub

To: Richard Flinton, Chief Executive Officer

Cc: NYC officers, NYC Executive councillors

8th April 2025

Dear Mr Flinton

Re: Endeavour Wharf, Whitby

North Yorkshire Council (NYC) Executive Meeting Decision made on 21 January 2025 (Item 608) – approval to enter the construction contract for the Whitby Maritime Hub project on the terms principally contained in the report submitted by the Corporate Director Community Development.

Fight4Whitby requests an urgent review and reconsideration of this decision, following the High Court judgement issued on 14 March 2025 (Case No: QB-2021-004706). The Court ruled that the whole of Endeavour Wharf is harbour land, including the site of the proposed Maritime Hub. Therefore, the site is owned by NYC in its capacity as the Statutory Harbour Authority (SHA) for the Port of Whitby, not in its capacity as the Local Authority.

The NYC Executive decision taken on 21 January 2025, was made subsequent to the granting of Planning Permission for the development in August 2024. Neither of those decisions were taken after consideration of the development proposals vis-a-vis the duties and legal obligations of the Statutory Harbour Authority, despite the outstanding High Court judgement. Fight4Whitby contends that both of these decisions were unsound.

Construction work on the site should be halted immediately, pending an urgent review. Fight4Whitby submits that the NYC Executive decision taken on 21st January 2025 requires reconsideration on several grounds, including:

a) Open Port Duty

As the Statutory Harbour Authority, North Yorkshire Council is bound by the “Open Port Duty” established historically and under Section 33 of the Harbours, Docks, and Piers Clauses Act 1847. The Open Port Duty requires that the harbour, docks, wharves and piers shall be open to all persons for the shipping and unshipping of goods and the embarking and landing of passengers, upon payment of the appropriate ship, passenger or goods dues. The common law also imposes a duty to conserve the Harbour and maintain it for safe and accessible use as a port. Equally, its duty of reasonable care requires the Statutory Harbour Authority to ensure that the Harbour’s physical infrastructure is maintained in a safe condition for vessels.

As advertised on the current North Yorkshire Council website, the Open Port Duty applicable to Endeavour Wharf requires the availability of two NAABSA berths for vessels up to 3,000 tonnes DWT, plus the availability of at least 5,000 sq. m. of open quay storage space for cargo (plus the necessary operating space for the loading / unloading of berthed vessels; freight vehicle deliveries / collection; fork-lift truck operations, etc). In addition, UK border controls require the maintenance of a secure Customs and Excise boundary to the landward side of the wharf, together with controlled access for vehicles and pedestrians when handling passenger or cargo vessels on arrival from, or departure to, non-UK ports.

The Open Port Duty can only be removed or restricted by a Harbour Revision Order made under Section 14 of the Harbours Act 1964. Yet the reports submitted to the NYC Executive on 21 January 2025, made no reference to Open Port Duty or to the on-going requirement to maintain this duty, both during and after the construction phase of the Maritime Hub.

In the alternative, if building the Maritime Hub does not cause a breach of the Open Port Duty, which we are concerned it plainly does, by building on this land NYC as the SHA has sterilised the ability to carry out any major infrastructure maintenance work and/ or repairs in the future in accordance with its statutory duties to maintain the harbour.

b) Financial

The High Court ruled that all income and expenditure generated by land which is owned by the Statutory Harbour Authority is to be treated as income and expenditure in respect of the harbour undertaking for the purposes of section 62 of the 1905 Act and that the Act requires a segregation of all of the capital assets and liabilities pertaining to the Harbour.

That ruling may well require significant revisions to the confidential financial report, provided to the Executive on 21 January 2025 as Appendix A – Detailed Financial implications (Private and Confidential – exempt information by virtue of paragraph(s) 3 of Part 1 of Schedule 12A of the Local Government Act 1972.)

The Council will recognise that the Decision made on 21st January 2025 has caused concern on several other grounds too, which are important to note here:

c) Marine Planning

The reports submitted to the NYC Executive on 21 January 2025 made no reference to UK Marine Policies and plans, nor to any consultation with the Marine Management Organisation or with the Maritime and Coastguard Agency.

This was despite the fact that, when Planning Permission for the Maritime Hub was granted in August 2024, the NPPF required:

183. In coastal areas, planning policies and decisions should take account of the UK Marine Policy Statement and marine plans. Integrated Coastal Zone Management should be pursued across local authority and land/sea
boundaries, to ensure effective alignment of the terrestrial and marine planning regimes.

Prior to the meeting held on 21 January 2025, an updated version of the National Planning Policy Framework had been published on 12 December 2024, which retained S183 as above and added:

231. The policies in this Framework are material considerations which should be taken into account in dealing with applications from the day of its publication. Plans may also need to be revised to reflect policy changes which this Framework has made. (emphasis added)

Similarly, there has been concern that the reports submitted to the NYC Executive on 21 January 2025 included, under legal considerations:

12.2 The Council owns the freehold of the site on which the Maritime Hub at Endeavour Wharf is to be located and Endeavour Wharf is also a registered cargo wharf. The proposed works to construct the Maritime Hub are consistent with the Council’s powers as a Harbour Authority and do not materially alter the wharf’s registration status. Local legislation relating to Whitby Harbour also gives the council the power to enter into lease arrangements of the units forming part of the completed development.

Fight4Whitby contends that the proposed works to construct the Maritime Hub are not consistent with the Council’s powers as the Statutory Harbour Authority. Under the Marine and Coastal Access Act 2009, the North East Marine Plan sets out specific policies to inform decision-making for any activity or development which is in, or impacts on, a marine area. The Marine Plan must be used for all planning decisions for the sea, coast, estuaries and tidal waters as well as developments that impact these areas, such as infrastructure. All public authorities are responsible for implementing the North East Marine Plan through existing regulatory and decision-making processes.

The whole of Endeavour Wharf was used for cargo handling for several decades, until Associated British Ports ceased its operations in Whitby in 2002. Although mainly utilised as a car park at present (and barring construction of the Maritime Hub) Endeavour Wharf clearly offers the potential to be reactivated for cargo
handling, to support the Government’s Climate Change strategies, as was noted in the Department for Transport publication Maritime 2050.

Fight4Whitby is not alone with its concerns about the correctness of the Decision made by the NYC Executive in January 2025, given the apparent failure to properly consider relevant marine legislation, policy statements and planning documents. However, in the light of the lack of consideration given to the point set out at paragraph a) above, the need to review this Decision is not only important, but must be expedited.

The Council should appreciate the significance of its apparent failure to consider the Open Port duty and the serious adverse consequences, including reputational consequences, that would flow from any breach of such a significant requirement. We require the Council to address this point specifically now. Construction work on the site should be halted immediately, pending that re-assessment.

Fight4Whitby requests the receipt of a substantive response to this letter before the next Executive Meeting is held on 15 April 2025.

Yours sincerely

Fight4Whitby