SCHEDULE 1: MATTERS FOR, OR IN CONNECTION WITH, WHICH REGULATIONS MAY BE MADE UNDER SECTION 2
Schedule 1 specifies matters for, or in connection with, which regulations may be made under section 2.
Paragraph 1: Emissions
Paragraph 1 enables the regulations to establish emission standards and requirements and to authorise making of plans for emission limits and quotas.
Paragraph 2: Emissions trading scheme
Paragraph 2 authorises the making of emissions quota trading or transfer schemes and makes provision for penalties in respect of contravention of a scheme.
Paragraph 3: Regulators
Paragraph 3 enables the regulations to specify the authorities on whom regulatory functions are conferred (defined as “regulators”), and enables the Department to give guidance and directions to regulators. It also provides for empowering regulators to appoint persons to exercise functions and powers conferred by the regulations, and to confer powers on persons so appointed.
Paragraph 4: Regulation of activities
Paragraph 4 enables the regulations—
to prohibit the carrying out of a regulated activity,
to prohibit the carrying out of a regulated activity unless authorised by or under regulations, or
to authorise the carrying out of a regulated activity in accordance with a permit, or subject to a requirement to register the carrying on of the activity, or subject to compliance with “general environmental rules” (see also section 5 in that respect).
Paragraph 5: PermitsParagraph 6: RegistrationParagraph 7: Provisions common to permits and registration
Paragraphs 5, 6 and 7 enable the regulations to specify the procedures relating to authorisation of regulated activities by permits and registration. The effect of these paragraphs is to allow for detailed procedural provisions to be included in the regulations governing how an application for the permit or registration may be made, how that application will be assessed and how a permit or registration may be granted. They also provide a framework for the extent to which the regulations may allow requirements to be imposed in permits and registrations, as well as allowing regulations to provide mechanisms for transfer, variation, and consolidation, and for suspension and revocation of permits or registration (together with a requirement to take associated preventative or remedial action). These provisions also enable the regulations to specify when registration may be refused and when a registration may lapse.
Paragraph 7 also allows provision to be made in connection with permits or registrations for multiple activities or for activities across multiple sites or for multiple persons to be granted a permit or registration. It allows “standard rules” provision to be made, and provides the basis for the fit and proper person test to be applied before a permit or registration is granted to a person or transferred, and to allow a permit or registration to be varied, suspended or revoked if the operator has ceased to be a fit and proper person.
Paragraph 7 also provides for requirements for remedial /preventative action to be taken where a permit or registration has been surrendered, suspended or revoked which could be in addition to any conditions of the licence (sub-paragraph (11)).
Paragraph 7 also provides for any person whose consent would be required before any works could be carried out under sub-paragraph (11) (most frequently the landowner) to be required to grant to the licence holder, or join in granting, such rights as will enable them to comply with the condition.
Paragraph 8: Determination of matters by regulatorsParagraph 9: Making of rules and imposition of conditions
There are supplementary provisions at paragraphs 8 and 9. Paragraph 8 allows regulations to make provision for anything in paragraphs 5 to 7 which could be provided for by the regulations to be instead determined by the regulators. Paragraph 9 allows regulations to provide for the Department and regulators to have regard to specified principles and for regulators to have regard to any directions or guidance in imposing conditions.
Paragraph 10: Charging schemes
Paragraph 10 enables the regulations to authorise the Department to charge fees or make, vary or revoke schemes imposing charges in respect of the testing, sampling and analysis of substances, and assessing the effect on the environment of the release of such substances. These charges can be imposed prior to the grant of a permit or registration or in assessing compliance with the condition of a permit or registration. Paragraph 10 also enables charges to be authorised under the regulations, and the making, etc. of charging schemes by the Department, in respect of, or in respect of applications for, the grant of a permit and the variation, transfer, surrender or revocation of a permit or registration. It also applies to charges in respect of the subsistence or consolidation of permits and registrations and other specified matters. Paragraph 10 also enables the regulations to regulate the procedures for the making of such schemes.
Paragraph 11: Information, publicity and consultation
Paragraph 11 enables the regulations to secure that publicity is given to specified matters, and that public registers are maintained by regulators in respect of such matters. They enable persons to be required to provide information and/or compile information on emissions, energy consumption and energy efficiency, and waste. They also enable the regulations to require or authorise regulators to carry out consultation in connection with the exercise of any of their functions. Paragraph 11 also enables the regulations to authorise regulators to hold a public local inquiry in respect of the exercise of any of their functions and for them to take account of any representations made as a result of any inquiry.
Paragraph 12: Enforcement and offences
Paragraph 12 enables the regulations to confer functions on regulators with respect to compliance with, and enforcement of, the regulations. This includes conferring a power to arrange for preventative or remedial action to be taken at the expense of the persons carrying on a regulated activity and to arrange for the taking of samples or making copies of information. It also enables the regulations to authorise regulators to serve various notices on persons carrying on regulated activities.
It also enables the regulations to provide that regulators may require any person served with such a notice to pay the costs incurred up to the date of service of the notice. It enables the regulations to provide for enforcement of notices in the High Court. It enables the regulations to create offences and provide for defences and evidentiary matters and allows offences to be triable summarily only or on indictment. It also provides the maximum punishments for the offences that may be set out in the regulations and enables regulations to provide for a court to be able to order remedial action where a person has been convicted of an offence and for that person to pay to a regulator the investigation costs incurred by the regulator.
Paragraph 13: Appeals
Paragraph 13 enables the regulations to provide for rights of appeal for various matters, and for the determination of such appeals as well as the payment of associated fees or costs.
Paragraph 14: Compensation
Paragraph 14 enables provision to be made to make a regulator liable to pay compensation to any person in respect of any loss or damage sustained by them as a result of certain action taken by the regulator, e.g. the revocation or modification of a permit in certain circumstances. It also enables compensation to be payable by a permit/registration holder to a landowner/landlord in such circumstances. Sub-paragraph (3) expressly expands the regulation making powers in relation to compensation to provide, for example, the basis on which any amount paid is to be assessed, when and how applications may be made and providing for the persons or bodies by whom, and the manner in which, any dispute is to be determined.
Paragraph 15: Service of notices and other documents
Paragraph 15 enables provision to be made for the service of notices or other required documents.
Paragraph 16: Application to the Crown
Paragraph 16 provides the application of the regulations to the Crown.
Paragraph 17: Interpretation
Paragraph 17 contains definitions of various terms used in the Schedule.