Planning (Hazardous Substances) Act 1990

23 Offences. E+W

(1) Subject to the following provisions of this section, if there is a contravention of hazardous substances control, the appropriate person shall be guilty of an offence.

(2) There is a contravention of hazardous substances control—

(a) if a quantity of a hazardous substance equal to or exceeding the controlled quantity is or has been present on, over or under land and either—

(i) there is no hazardous substances consent for the presence of the substance; or

(ii) there is hazardous substances consent for its presence but the quantity present exceeds the maximum quantity permitted by the consent;

(b) if there is or has been a failure to comply with a condition subject to which a hazardous substances consent was granted.

(3) In subsection (1) “the appropriate person” means—

(a) in relation to a contravention falling within paragraph (a) of subsection (2)—

(i) any person knowingly causing the substance to be present on, over or under the land;

(ii) any person allowing it to be so present; and

(b) in relation to a contravention falling within paragraph (a) or (b) of that subsection, the person in control of the land.

(4) A person guilty of an offence under this section shall be liable [F1 on summary conviction, or on conviction on indictment, to a fine].

[F2 (4A) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence]

(5) In any proceedings for an offence under this section it shall be a defence for the accused to prove—

(a) that he took all reasonable precautions and exercised all due diligence to avoid commission of the offence, or

(b) that commission of the offence could be avoided only by the taking of action amounting to a breach of a statutory duty.

(6) In any proceedings for an offence consisting of a contravention falling within subsection (2)(a), it shall be a defence for the accused to prove that at the time of the alleged commission of the offence he did not know, and had no reason to believe—

(a) if the case falls within paragraph (a)(i)—

(i) that the substance was present; or

(ii) that it was present in a quantity equal to or exceeding the controlled quantity;

(b) if the case falls within paragraph (a)(ii), that the substance was present in a quantity exceeding the maximum quantity permitted by the consent.

(7) In any proceedings for an offence consisting of a contravention falling within subsection (2)(b), it shall be a defence for the accused to prove that he did not know, and had no reason to believe, that there was a failure to comply with a condition subject to which hazardous substances consent had been granted.

Textual Amendments

F1 Words in s. 23(4) substituted (12.3.2015) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Fines on Summary Conviction) Regulations 2015 (S.I. 2015/664), reg. 1(1), Sch. 4 para. 20 (with reg. 5(1))

F2 S. 23(4A) substituted (2.1.1992) for the words following s. 23(4)(b) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. I para. 10(b) (with s. 84(5)); S.I. 1991/2905, art. 3

Modifications etc. (not altering text)

C1 S. 23 restricted and modified by S.I. 1992/725, art. 4

C2 S. 23: power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art. 3

C3 S. 23 restricted (E.) (28.4.2010) by The Planning (Hazardous Substances) (Amendment) (England) Regulations 2010 (S.I. 2010/1050), regs. 1(1), 3

Commencement Information

I1 S. 23 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 23 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2