Chapter 1: Transport of Waste
Section 35 Unregistered transportation: defence of acting under employer’s instructions
126.Under section 1 of the Control of Pollution (Amendment) Act 1989, it is an offence for anyone who is not a registered carrier of controlled waste to transport such waste within Great Britain in the course of any business of his or otherwise with a view to profit. Controlled waste is defined as household, industrial and commercial waste.
127.Section 35(1) amends section 1 of the Control of Pollution (Amendment) Act 1989 so as to remove the defence (at section 1(4)(c)) of acting under one’s employer’s instructions.
Section 36 Registration requirements and conditions
128.Section 2 of the Control of Pollution (Amendment) Act 1989 sets out provisions as to the registration of waste carriers. Section 36 amends the provisions in section 2 relating to certificates of registration for carriers of controlled waste (in relation to which provision can be made in regulations under that section). In particular, it removes the requirement that a certificate of registration, and copies of such a certificate, must be provided free of charge.
129.This section also provides (by way of new section 2(4A) and (4B) of the 1989 Act) that regulations under this section may include provision for the registration of carriers of controlled waste to be subject to conditions relating to the vehicles they use, as well as for the possible revocation of a registration in the event of breach of such a condition. In support of this, the regulations may provide for inspections of such vehicles and charges for such inspections.
Section 37 Enforcement powers
130.Section 37 substitutes section 5 of the Control of Pollution (Amendment) Act 1989 with new sections 5 and 5A. The principal effect is to enable a constable or an authorised officer of a regulation authority (i.e. the Environment Agency or a waste collection authority) to stop, search and seize a vehicle that he reasonably believes is being used in the commission of an offence under section 1 of that Act (transporting controlled waste without being registered).
131.Section 5 sets out the powers of an authorised officer or a constable in relation to such a vehicle and its contents. Only a constable in uniform may stop a vehicle on the road. A vehicle or its contents which are seized by a constable in the presence of an authorised officer of a regulation authority are seized on behalf of that authority; where the constable is acting alone then the vehicle or contents seized are seized on behalf of the waste collection authority in whose area the seizure takes place.
132.Section 5(7) re-enacts the offence under the previous section 5 of failing to comply with a requirement to produce authority for transporting controlled waste; it also creates new offences of failing to assist or otherwise obstructing an authorised officer or constable.
133.Section 5(9) gives the authorised officer or constable a power to require any occupant of the vehicle to give his name and address, or that of the registered owner of the vehicle, or any other information he may reasonably request. By section 5(10) it is an offence to fail to give such information or to give information which is knowingly or recklessly false or misleading, punishable by a fine not exceeding level 5 on the standard scale (currently £5,000).
134.Section 5A empowers the appropriate person (the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales) to make regulations specifying how a regulation authority must deal with vehicles or their contents seized under section 5, and to issue guidance to a regulation authority in relation to its performance of its functions under such regulations.
Section 38 Failure to produce authority: fixed penalty notices
135.Section 38 inserts sections 5B and 5C into the Control of Pollution (Amendment) Act 1989. Under section 5B, where it appears to an authorised officer of a regulation authority that a person has committed an offence under section 5(7)(a) (failure to produce authority for transporting controlled waste) he may issue that person with a notice, offering him an opportunity to discharge by payment of a fixed penalty any liability to conviction for the offence. By section 5B(9) the fixed penalty is set at £300, though a different amount may be substituted by an order made by the appropriate person under section 5B(10). By section 5B(11) a regulation authority may make provision for treating a fixed penalty as having been paid if a lesser amount is paid within a shorter specified period, and by section 5B(12) the extent and circumstances for doing so may be subject to restrictions in regulations made by the appropriate person.
136.Section 5C allows a waste collection authority to retain the receipts arising from fixed penalty notices issued pursuant to section 5B, and specifies the functions for which the receipts may be used. Section 5C(9) makes similar provision to that made by section 8 (subsection (8)) as described in paragraph 44 above.
Section 39 Interpretation
137.Section 39 inserts definitions of “appropriate person” and “authorised officer” in section 9 of the Control of Pollution (Amendment) Act 1989. The former is defined as the Secretary of State in relation to England, and the National Assembly for Wales in relation to Wales.