Water Act 1989

Section 74.

SCHEDULE 9 Control of Exercise of Trade Effluent Functions in Certain Cases

References to the Secretary of State

1 (1) Subject to sub-paragraph (2) below, where—

(a) a trade effluent notice with respect to discharges of any trade effluent to which section 74 of this Act applies is served on a sewerage undertaker under the 1937 Act by the owner or occupier of any trade premises; or

(b) a sewerage undertaker and the owner or occupier of any trade premises are proposing to enter into any agreement under section 7 of that Act with respect to, or to any matter connected with, the reception or disposal of any such effluent,

it shall be the duty of the undertaker to refer to the Secretary of State the question whether the proposed operations should be prohibited and the question whether, if they are not prohibited, any requirements should be imposed as to the conditions on which they are carried out.

(2) Where a trade effluent notice is served on a sewerage undertaker, the reference required to be made by virtue of sub-paragraph (1)(a) above shall be made before the end of the period of two months beginning with the day after service of the notice, but there shall be no obligation to make such a reference if, before the end of that period, there is a refusal by the sewerage undertaker to give any consent on the application contained in the notice.

(3) If, on an appeal under section 3 of the 1937 Act, it appears to the Director—

(a) that the case is one in which the sewerage undertaker in question is required to make a reference under sub-paragraph (1) above before giving a consent under that Act; and

(b) that the undertaker has not made such a reference, whether because the case falls within sub-paragraph (2) above or otherwise,

the Director shall not be entitled to determine the appeal, otherwise than by upholding a refusal, except where he has himself referred the questions mentioned in sub-paragraph (1) above to the Secretary of State and has been sent a copy of the notice of the Secretary of State’s determination on the reference.

(4) Every reference made under this paragraph shall be made in writing and shall be accompanied—

(a) in the case of a reference by virtue of paragraph (a) of sub-paragraph (1) above or sub-paragraph (3) above, by a copy of the trade effluent notice in respect of which the reference is made; and

(b) in the case of a reference by virtue of paragraph (b) of sub-paragraph (1) above, by a copy of the proposed agreement;

and it shall be the duty of a sewerage undertaker where a reference has been made under this paragraph not to give any consent or enter into any agreement with respect to the proposed operations until the Secretary of State serves notice on the sewerage undertaker of his determination on the reference.

(5) It shall be the duty of a sewerage undertaker and of the Director, on making a reference under this paragraph, to serve a copy of the reference on the relevant person; and it shall also be the duty of the Director, on making such a reference, to serve a copy of the reference on the sewerage undertaker in question.

(6) Where a reference is made to the Secretary of State by virtue of sub-paragraph (1)(a) above, the initial period for the purposes of section 3 of the 1937 Act shall not begin to run in relation to the trade effluent notice in respect of which the reference is made until the beginning of the day after the Secretary of State serves notice on the sewerage undertaker in question of his determination on the reference.

Reviews by the Secretary of State

2 (1) Where any person, as the owner or occupier of any trade premises, is (whether or not in accordance with a notice under paragraph 3 below) either—

(a) for the time being authorised by virtue of a consent under the 1937 Act to make discharges of any trade effluent to which section 74 of this Act applies from those premises into any public sewer of a sewerage undertaker; or

(b) for the time being a party to any agreement under section 7 of that Act with respect to, or to any matter connected with, the reception or disposal of any such effluent,

the Secretary of State may review the question whether the authorised operations should be prohibited and the question whether, if they are not prohibited, any requirements should be imposed as to the conditions on which they are carried out.

(2) Subject to sub-paragraph (3) below, the Secretary of State shall not review any question under this paragraph unless—

(a) a period of more than two years has elapsed since the relevant time;

(b) the consent, agreement or variation by virtue of which the authorised operations are carried out—

(i) was given, entered into or made either before the transfer date or in contravention of paragraph 4 below; and

(ii) has not previously been the subject-matter of a review;

or

(c) there has since the relevant time been a contravention of any provision which was included in that consent, agreement or variation in compliance with a requirement of a notice under paragraph 3 below.

(3) Sub-paragraph (2) above shall not apply if the review is carried out—

(a) for the purpose of enabling Her Majesty’s Government in the United Kingdom to give effect to any Community obligation or to any international agreement to which the United Kingdom is for the time being a party; or

(b) for the protection of public health or of flora and fauna dependent on an aquatic environment.

Determinations on a reference or review

3 (1) On a reference or review under paragraph 1 or 2 above, it shall be the duty of the Secretary of State, before determining the questions which are the subject-matter of the reference or review—

(a) to give an opportunity of making representations or objections to the Secretary of State to the sewerage undertaker in question and to the relevant person; and

(b) to consider any representations or objections which are duly made to him with respect to those questions by that undertaker or by the relevant person and are not withdrawn.

(2) On determining any question on a reference or review under paragraph 1 or 2 above, the Secretary of State shall serve notice on the sewerage undertaker in question and on the relevant person, stating, according to what has been determined—

(a) that the proposed or authorised operations, or such of them as are specified in the notice, are to be prohibited; or

(b) that those operations, or such of them as are so specified, are to be prohibited except in so far as they are carried out in accordance with conditions which consist in or include conditions so specified; or

(c) that the Secretary of State has no objection to those operations and does not intend to impose any requirements as to the conditions on which they are carried out.

(3) Without prejudice to paragraph 4 below, a notice under this paragraph, in addition to containing such provision as is specified in sub-paragraph (2) above, may do one or both of the following, that is to say—

(a) vary or revoke the provisions of a previous notice with respect to the proposed or authorised operations; and

(b) for the purpose of giving effect to any prohibition or other requirement contained in the notice, vary or revoke any actual or deemed consent under the 1937 Act or any agreement under section 7 of that Act.

(4) The Secretary of State shall send a copy of every notice served under this paragraph to the Director.

Effect of determination

4 (1) Where a notice under paragraph 3 above has been served on a sewerage undertaker, it shall be the duty of the undertaker and, in relation to that undertaker, of the Director so to exercise the powers to which this paragraph applies as to secure compliance with the provisions of the notice.

(2) This paragraph applies to the following powers, that is to say—

(a) in relation to a sewerage undertaker, any of its powers under section 2 of the 1937 Act (trade effluent consents) or section 60 of the 1961 Act (variation of conditions) and any power to enter into or vary an agreement under section 7 of the 1937 Act; and

(b) in relation to the Director, any of his powers under the 1937 Act, Part V of the 1961 Act or section 43 of the [1974 c. 40.] Control of Pollution Act 1974.

(3) Nothing in section 59 of the 1961 Act (conditions of consent) shall be construed as restricting the power of the Secretary of State, by virtue of sub-paragraph (2)(b) of paragraph 3 above, to specify such conditions as he considers appropriate in a notice under that paragraph or restricting the power of a sewerage undertaker, for the purpose of complying with this paragraph, to impose any condition specified in such a notice.

Enforcement

5 Any duty of a sewerage undertaker under this Schedule shall be enforceable under section 20 of this Act by the Secretary of State; but where an application is made to the Secretary of State under that section in respect of a failure by a sewerage undertaker to make a reference under paragraph 1 above, the Secretary of State may, instead of making an order under that section, proceed with the matter as if the application were the reference.

Compensation

6 (1) Subject to sub-paragraph (2) below, the Secretary of State shall be liable to pay compensation to the relevant person in respect of any loss or damage sustained by that person as a result of any notice under paragraph 3 above containing the Secretary of State’s determination on a review which—

(a) has been carried out by virtue of sub-paragraph (3)(b) of paragraph 2 above; and

(b) but for the said sub-paragraph (3)(b), would have been prohibited by virtue of sub-paragraph (2) of that paragraph.

(2) The Secretary of State shall not be required to pay any compensation under sub-paragraph (1) above if the determination in question is shown to have been given in consequence of—

(a) a change of circumstances which could not reasonably have been foreseen at the relevant time; or

(b) consideration by the Secretary of State of material information which was not reasonably available to him at that time.

(3) Any compensation required to be paid by the Secretary of State under this paragraph shall be paid out of money provided by Parliament.

(4) No person shall be entitled to any compensation under section 45 of the [1974 c. 40.] Control of Pollution Act 1974 (early variation of conditions) in respect of anything done in pursuance of paragraph 4 above.

Power of entry

7 Section 287 of the [1936 c. 49.] Public Health Act 1936 and section 10 of the 1937 Act (powers of entry) shall have effect in relation to the provisions of this Schedule as they have effect, in accordance with paragraph 3(7) of Schedule 8 to this Act, in relation to the 1937 Act but as if the designation required by virtue of paragraph 2(9)(a) of that Schedule were a designation by the Secretary of State.

Power to disclose information obtained under the 1937 Act

8 In section 68(1) of the 1961 Act (restriction on disclosure of information), the references in paragraphs (b) and (c) to the 1937 Act shall include references to this Schedule.

Interpretation

9 In this Schedule—

• “the 1937 Act” means the [1937 c. 40.] Public Health (Drainage of Trade Premises) Act 1937;

• “the 1961 Act” means the [1961 c. 64.] Public Health Act 1961;

• “the authorised operations”—

  (a)

  in relation to a case in which there is a review by virtue of sub-paragraph (1)(a) of paragraph 2 above, means the discharges to which the review relates; and

  (b)

  in relation to a case in which there is a review by virtue of sub-paragraph (1)(b) of that paragraph, means such operations for the purposes of, or in connection with, the reception and disposal of trade effluent as are carried out in pursuance of the agreement to which the review relates;

• “the proposed operations”—

  (a)

  in relation to a case in which there is a reference by virtue of sub-paragraph (1)(a) or (3) of paragraph 1 above, means the discharges to which the reference relates; and

  (b)

  in relation to a case in which there is a reference by virtue of sub-paragraph (1)(b) of that paragraph, means such operations for the purposes of, or in connection with, the reception and disposal of trade effluent as would be carried out in pursuance of the proposed agreement;

• “the relevant person”, in relation to a reference or review under paragraph 1 or 2 above, means the owner or occupier of the trade premises in question, according to whether the authorised or proposed operations to which the reference or review relates are operations by the owner or occupier or, as the case may be, to whether it is the owner or occupier who is proposing to be or is a party to the agreement to which the reference or review relates;

• “the relevant time”, in relation to a review of any consent or agreement, means the time or last time when notice of the Secretary of State’s determination, on a reference or review under paragraph 1 or 2 above of any question relating to that consent or agreement, was served on the owner or occupier of the trade premises in question;

• “trade effluent” and “trade premises” have the same meanings as in the 1937 Act.