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162After that section there shall be inserted—E+W+S
(1)Subject to the following provisions of this section, where it appears to the Agency that any poisonous, noxious or polluting matter or any solid waste matter is likely to enter, or to be or to have been present in, any controlled waters, the Agency shall be entitled to serve a works notice on any person who, as the case may be,—
(a)caused or knowingly permitted the matter in question to be present at the place from which it is likely, in the opinion of the Agency, to enter any controlled waters; or
(b)caused or knowingly permitted the matter in question to be present in any controlled waters.
(2)For the purposes of this section, a “works notice” is a notice requiring the person on whom it is served to carry out such of the following works or operations as may be specified in the notice, that is to say—
(a)in a case where the matter in question appears likely to enter any controlled waters, works or operations for the purpose of preventing it from doing so; or
(b)in a case where the matter appears to be or to have been present in any controlled waters, works or operations for the purpose—
(i)of removing or disposing of the matter;
(ii)of remedying or mitigating any pollution caused by its presence in the waters; or
(iii)so far as it is reasonably practicable to do so, of restoring the waters, including any flora and fauna dependent on the aquatic environment of the waters, to their state immediately before the matter became present in the waters.
(3)A works notice—
(a)must specify the periods within which the person on whom it is served is required to do each of the things specified in the notice; and
(b)is without prejudice to the powers of the Agency by virtue of section 161(1A)(a) above.
(4)Before serving a works notice on any person, the Agency shall reasonably endeavour to consult that person concerning the works or operations which are to be specified in the notice.
(5)The Secretary of State may by regulations make provision for or in connection with—
(a)the form or content of works notices;
(b)requirements for consultation, before the service of a works notice, with persons other than the person on whom that notice is to be served;
(c)steps to be taken for the purposes of any consultation required under subsection (4) above or regulations made by virtue of paragraph (b) above; or
(d)any other steps of a procedural nature which are to be taken in connection with, or in consequence of, the service of a works notice.
(6)A works notice shall not be regarded as invalid, or as invalidly served, by reason only of any failure to comply with the requirements of subsection (4) above or of regulations made by virtue of paragraph (b) of subsection (5) above.
(7)Nothing in subsection (1) above shall entitle the Agency to require the carrying out of any works or operations which would impede or prevent the making of any discharge in pursuance of a consent given under Chapter II of Part III of this Act.
(8)No works notice shall be served on any person requiring him to carry out any works or operations in respect of water from an abandoned mine or an abandoned part of a mine which that person permitted to reach such a place as is mentioned in subsection (1)(a) above or to enter any controlled waters.
(9)Subsection (8) above shall not apply to the owner or former operator of any mine or part of a mine if the mine or part in question became abandoned after 31st December 1999.
(10)Subsections (3B) and (3C) of section 89 above shall apply in relation to subsections (8) and (9) above as they apply in relation to subsections (3) and (3A) of that section.
(11)Where the Agency—
(a)carries out any such investigations as are mentioned in section 161(1) above, and
(b)serves a works notice on a person in connection with the matter to which the investigations relate,
it shall (unless the notice is quashed or withdrawn) be entitled to recover the costs or expenses reasonably incurred in carrying out those investigations from that person.
(12)The Secretary of State may, if he thinks fit in relation to any person, give directions to the Agency as to whether or how it should exercise its powers under this section.
(13)In this section—
“controlled waters” has the same meaning as in Part III of this Act;
“mine” has the same meaning as in the M1Mines and Quarries Act 1954.
(1)A works notice may require a person to carry out works or operations in relation to any land or waters notwithstanding that he is not entitled to carry out those works or operations.
(2)Any person whose consent is required before any works or operations required by a works notice may be carried out shall grant, or join in granting, such rights in relation to any land or waters as will enable the person on whom the works notice is served to comply with any requirements imposed by the works notice.
(3)Before serving a works notice, the Agency shall reasonably endeavour to consult every person who appears to it—
(a)to be the owner or occupier of any relevant land, and
(b)to be a person who might be required by subsection (2) above to grant, or join in granting, any rights,
concerning the rights which that person may be so required to grant.
(4)A works notice shall not be regarded as invalid, or as invalidly served, by reason only of any failure to comply with the requirements of subsection (3) above.
(5)A person who grants, or joins in granting, any rights pursuant to subsection (2) above shall be entitled, on making an application within such period as may be prescribed and in such manner as may be prescribed to such person as may be prescribed, to be paid by the person on whom the works notice in question is served compensation of such amount as may be determined in such manner as may be prescribed.
(6)Without prejudice to the generality of the regulations that may be made by virtue of subsection (5) above, regulations by virtue of that subsection may make such provision in relation to compensation under this section as may be made by regulations by virtue of subsection (4) of section 35A of the M2Environmental Protection Act 1990 in relation to compensation under that section.
(7)In this section—
“prescribed” means prescribed in regulations made by the Secretary of State;
“relevant land” means—
any land or waters in relation to which the works notice in question requires, or may require, works or operations to be carried out; or
any land adjoining or adjacent to that land or those waters;
“works notice” means a works notice under section 161A above.
(1)A person on whom a works notice is served may, within the period of twenty-one days beginning with the day on which the notice is served, appeal against the notice to the Secretary of State.
(2)On any appeal under this section the Secretary of State—
(a)shall quash the notice, if he is satisfied that there is a material defect in the notice; but
(b)subject to that, may confirm the notice, with or without modification, or quash it.
(3)The Secretary of State may by regulations make provision with respect to—
(a)the grounds on which appeals under this section may be made; or
(b)the procedure on any such appeal.
(4)Regulations under subsection (3) above may (among other things)—
(a)include provisions comparable to those in section 290 of the M3Public Health Act 1936 (appeals against notices requiring the execution of works);
(b)prescribe the cases in which a works notice is, or is not, to be suspended until the appeal is decided, or until some other stage in the proceedings;
(c)prescribe the cases in which the decision on an appeal may in some respects be less favourable to the appellant than the works notice against which he is appealing;
(d)prescribe the cases in which the appellant may claim that a works notice should have been served on some other person and prescribe the procedure to be followed in those cases;
(e)make provision as respects—
(i)the particulars to be included in the notice of appeal;
(ii)the persons on whom notice of appeal is to be served and the particulars, if any, which are to accompany the notice; or
(iii)the abandonment of an appeal.
(5)In this section “works notice” means a works notice under section 161A above.
(6)This section is subject to section 114 of the 1995 Act (delegation or reference of appeals).
(1)If a person on whom the Agency serves a works notice fails to comply with any of the requirements of the notice, he shall be guilty of an offence.
(2)A person who commits an offence under subsection (1) above shall be liable—
(a)on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding £20,000 or to both;
(b)on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both.
(3)If a person on whom a works notice has been served fails to comply with any of the requirements of the notice, the Agency may do what that person was required to do and may recover from him any costs or expenses reasonably incurred by the Agency in doing it.
(4)If the Agency is of the opinion that proceedings for an offence under subsection (1) above would afford an ineffectual remedy against a person who has failed to comply with the requirements of a works notice, the Agency may take proceedings in the High Court for the purpose of securing compliance with the notice.
(5)In this section “works notice” means a works notice under section 161A above.”
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