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The Environmental Liability (Scotland) Regulations 2009

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Powers of entry and inspection

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9.—(1) Any person authorised in writing by a competent authority for the purpose of carrying out its functions under these Regulations may exercise the powers specified in paragraph (2).

(2) The powers which an authorised person may exercise under paragraph (1) are—

(a)to enter at any reasonable time (or, in an emergency, at any time and, if need be, by force) any premises which the person has reason to believe it is necessary to enter;

(b)on entering any premises by virtue of sub‑paragraph (a), to—

(i)be accompanied by any other person duly authorised by the competent authority and, if the authorised person has reasonable cause to apprehend any serious obstruction in the execution of the duty, a constable; and

(ii)have any equipment or materials required for any purpose for which the power of entry is being exercised;

(c)to make such examination and investigation as may in any circumstances be necessary;

(d)as regards any premises which the person has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under sub‑paragraph (c);

(e)to take such measurements and photographs and make such recordings as the person considers necessary for the purpose of any examination or investigation under sub‑paragraph (c);

(f)to take samples, or cause samples to be taken, of any articles or substances found in or on any premises which the person has power to enter, and of the air, water or land in, on, or in the vicinity of, the premises;

(g)in the case of any article or substance found in or on any premises which the person has power to enter, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it, unless that is necessary);

(h)in the case of any such article or substance as is mentioned in sub‑paragraph (g), to take possession of it and detain it for so long as is necessary for all or any of the following purposes—

(i)to examine it, or cause it to be examined, and to do, or cause to be done, to it anything which there is power to do under that sub-paragraph;

(ii)to ensure that it is not tampered with before examination of it is completed;

(iii)to ensure that it is available for use as evidence in any proceedings for an offence under these Regulations;

(i)to require any person whom the authorised person has reasonable cause to believe to be able to give any information relevant to any examination or investigation under sub‑paragraph (c) to answer (in the absence of persons other than a person nominated by that person to be present and any persons whom the authorised person may allow to be present) such questions as the authorised person thinks fit to ask and to sign a declaration of the truth of the answers;

(j)to require the production of, or where the information is recorded in computerised form, the furnishing of extracts from, any records which it is necessary for the person to see for the purposes of an examination or investigation under sub‑paragraph (c) and to inspect and take copies of, or of any entry in, the records;

(k)in order to determine whether any provision of these Regulations has been complied with—

(i)to carry out experimental borings or other works on the premises; and

(ii)to install, keep or maintain monitoring and other apparatus on the premises;

(l)to require any person to afford such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred by this regulation.

(3) Except in an emergency, in any case where it is proposed to enter any premises used for residential purposes, or to take heavy equipment on to any premises which are to be entered, any entry by virtue of this regulation shall only be effected—

(a)after the expiration of at least seven days’ notice of the proposed entry given to a person who appears to the authorised person in question to be in occupation of the premises in question; and

(b)either—

(i)with the consent of a person who is in occupation of those premises; or

(ii)under the authority of a warrant by virtue of Schedule 2.

(4) Except in an emergency, where an authorised person proposes to enter any premises and—

(a)entry has been refused and that person apprehends on reasonable grounds that the use of force may be necessary to effect entry; or

(b)that person apprehends on reasonable grounds that entry is likely to be refused and that the use of force may be necessary to effect entry,

any entry on to those premises by virtue of this regulation shall only be effected under the authority of a warrant by virtue of Schedule 2.

(5) An authorised person who proposes to exercise the power conferred by paragraph (2)(g) in the case of an article or substance found on any premises, shall, if so requested by a person who at the time is present on and has responsibilities in relation to those premises, cause anything which is to be done by virtue of that power to be done in the presence of that person.

(6) Before exercising the power conferred by paragraph (2)(g) in the case of any article or substance, an authorised person shall consult—

(a)such persons having duties on the premises where the article or substance is to be dismantled or subjected to the process or test; and

(b)such other persons,

as appear to the authorised person appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which that person proposes to do or cause to be done under the power.

(7) No answer given by a person in pursuance of a requirement imposed under paragraph (2)(i) shall be admissible in evidence against that person in any criminal proceedings.

(8) Nothing in this regulation shall be taken to compel the production by any person of a document if that person would on grounds of legal professional privilege be entitled to withhold production on an order for the production of documents in an action in the Court of Session.

(9) Schedule 2 shall have effect with respect to the powers of entry and related powers which are conferred by this regulation.

(10) In this regulation—

“articles or substances” includes flora and fauna;

“emergency” means a case in which it appears to the authorised person in question that there is an immediate risk of environmental damage and that immediate entry to any premises is necessary to verify the existence of that risk, to ascertain the cause of that risk or to effect a remedy;

“premises” includes any land, vehicle, vessel or mobile plant.

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