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Environment Act 1995

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Environment Act 1995

1995 CHAPTER 25

An Act to provide for the establishment of a body corporate to be known as the Environment Agency and a body corporate to be known as the Scottish Environment Protection Agency; to provide for the transfer of functions, property, rights and liabilities to those bodies and for the conferring of other functions on them; to make provision with respect to contaminated land and abandoned mines; to make further provision in relation to National Parks; to make further provision for the control of pollution, the conservation of natural resources and the conservation or enhancement of the environment; to make provision for imposing obligations on certain persons in respect of certain products or materials; to make provision in relation to fisheries; to make provision for certain enactments to bind the Crown; to make provision with respect to the application of certain enactments in relation to the Isles of Scilly; and for connected purposes.

[19th July 1995]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Extent Information

E1For the extent of this Act see s. 125(7)-(10).

Modifications etc. (not altering text)

C1Act (except specified provisions): transfer of certain functions (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

C2Transfer of certain functions (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1 (as amended (E.W.) (17.3.2004 for specified purposes) by Water Act 2003 (c. 37), ss. 100(5)(6), 105(3) (with s. 100(7)); S.I. 2004/641, arts. 2(b), 3(x) (with Sch. 3 para. 7))

C4Act: power to amend conferred (E.W.) (1.10.2010) by Flood and Water Management Act 2010 (c. 29), ss. 28, 49(3) (with s. 49(1)(6)); S.I. 2010/2169, art. 4, Sch.

Part IE+W+S The Environment Agency and the Scottish Environment Protection Agency

Chapter IE+W+S The Environment Agency

Establishment of the AgencyE+W+S

1 The Environment Agency.E+W+S

(1)There shall be a body corporate to be known as the Environment Agency or, in Welsh, Asiantaeth yr Amgylchedd (in this Act referred to as “the Agency”), for the purpose of carrying out the functions transferred or assigned to it by or under this Act.

(2)The Agency shall consist of not less than eight nor more than fifteen members of whom—

(a)three shall be appointed by the Minister; and

(b)the others shall be appointed by the Secretary of State.

(3)The Secretary of State shall designate—

(a)one of the members as the chairman of the Agency, and

(b)another of them as the deputy chairman of the Agency.

(4)In appointing a person to be a member of the Agency, the Secretary of State or, as the case may be, the Minister shall have regard to the desirability of appointing a person who has experience of, and has shown capacity in, some matter relevant to the functions of the Agency.

(5)Subject to the provisions of section 38 below, the Agency shall not be regarded—

(a)as the servant or agent of the Crown, or as enjoying any status, immunity or privilege of the Crown; or

(b)by virtue of any connection with the Crown, as exempt from any tax, duty, rate, levy or other charge whatsoever, whether general or local;

and the Agency’s property shall not be regarded as property of, or property held on behalf of, the Crown.

(6)The provisions of Schedule 1 to this Act shall have effect with respect to the Agency.

Modifications etc. (not altering text)

C5S. 1: transfer of functions (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 5 (with art. 24)

Transfer of functions, property etc. to the AgencyE+W+S

2 Transfer of functions to the Agency.E+W+S

(1)On the transfer date there shall by virtue of this section be transferred to the Agency—

(a)the functions of the National Rivers Authority, that is to say—

(i)its functions under or by virtue of Part II (water resources management) of the M1Water Resources Act 1991 (in this Part referred to as “the 1991 Act”);

(ii)its functions under or by virtue of Part III of that Act (control of pollution of water resources);

(iii)its functions under or by virtue of Part IV of that Act (flood defence) and the M2Land Drainage Act 1991 and the functions transferred to the Authority by virtue of section 136(8) of the M3Water Act 1989 and paragraph 1(3) of Schedule 15 to that Act (transfer of land drainage functions under local statutory provisions and subordinate legislation);

(iv)its functions under or by virtue of Part VII of the 1991 Act (land and works powers);

(v)its functions under or by virtue of F1... the M4Sea Fisheries Regulation Act 1966, the M5Salmon and Freshwater Fisheries Act 1975, Part V of the 1991 Act or any other enactment relating to fisheries;

(vi)the functions as a navigation authority, harbour authority or conservancy authority which were transferred to the Authority by virtue of Chapter V of Part III of the M6Water Act 1989 or paragraph 23(3) of Schedule 13 to that Act or which have been transferred to the Authority by any order or agreement under Schedule 2 to the 1991 Act;

(vii)its functions under Schedule 2 to the 1991 Act;

(viii)the functions assigned to the Authority by or under any other enactment, apart from this Act;

(b)the functions of waste regulation authorities, that is to say, the functions conferred or imposed on them by or under—

(i)the M7Control of Pollution (Amendment) Act 1989, or

(ii)Part II of the M8Environmental Protection Act 1990 (in this Part referred to as “the 1990 Act”),

or assigned to them by or under any other enactment, apart from this Act;

(c)the functions of disposal authorities under or by virtue of the waste regulation provisions of the M9Control of Pollution Act 1974;

(d)the functions of the chief inspector for England and Wales constituted under section 16(3) of the 1990 Act, that is to say, the functions conferred or imposed on him by or under Part I of that Act or assigned to him by or under any other enactment, apart from this Act;

(e)the functions of the chief inspector for England and Wales appointed under section 4(2)(a) of the M10Radioactive Substances Act 1993, that is to say, the functions conferred or imposed on him by or under that Act or assigned to him by or under any other enactment, apart from this Act;

(f)the functions conferred or imposed by or under the M11Alkali, &c, Works Regulation Act 1906 (in this section referred to as “the 1906 Act”) on the chief, or any other, inspector (within the meaning of that Act), so far as exercisable in relation to England and Wales;

(g)so far as exercisable in relation to England and Wales, the functions in relation to improvement notices and prohibition notices under Part I of the M12Health and Safety at Work etc. Act 1974 (in this section referred to as “the 1974 Act”) of inspectors appointed under section 19 of that Act by the Secretary of State in his capacity as the enforcing authority responsible in relation to England and Wales for the enforcement of the 1906 Act and section 5 of the 1974 Act; and

(h)the functions of the Secretary of State specified in subsection (2) below.

(2)The functions of the Secretary of State mentioned in subsection (1)(h) above are the following, that is to say—

(a)so far as exercisable in relation to England and Wales, his functions under section 30(1) of the M13Radioactive Substances Act 1993 (power to dispose of radioactive waste);

(b)his functions under Chapter III of Part IV of the M14Water Industry Act 1991 in relation to special category effluent, within the meaning of that Chapter, other than any function of making regulations or of making orders under section 139 of that Act;

(c)so far as exercisable in relation to England and Wales, the functions conferred or imposed on him by virtue of his being, for the purposes of Part I of the 1974 Act, the authority which is by any of the relevant statutory provisions made responsible for the enforcement of the 1906 Act and section 5 of the 1974 Act;

(d)so far as exercisable in relation to England and Wales, his functions under, or under regulations made by virtue of, section 9 of the 1906 Act (registration of works), other than any functions of his as an appellate authority or any function of making regulations;

(e)so far as exercisable in relation to England and Wales, his functions under regulations 7(1) and 8(2) of, and paragraph 2(2)(c) of Schedule 2 to, the M15Sludge (Use in Agriculture) Regulations 1989 (which relate to the provision of information and the testing of soil).

F2(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3 Transfer of property, rights and liabilities to the Agency.E+W+S

(1)On the transfer date—

(a)the property, rights and liabilities—

(i)of the National Rivers Authority, and

(ii)of the London Waste Regulation Authority,

shall, by virtue of this paragraph, be transferred to and vested in the Agency;

(b)any property, rights or liabilities which are the subject of—

(i)a scheme made under the following provisions of this section by the Secretary of State, or

(ii)a scheme made under those provisions by a body which is a waste regulation authority and approved (with or without modifications) under those provisions by the Secretary of State,

shall be transferred to and vested in the Agency by and in accordance with the scheme.

F3(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F3(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8)Schedule 2 to this Act shall have effect in relation to transfers by or under this section.

Textual Amendments

F3S. 3(2)-(7) repealed (22.7.2004) by Statute Law (Repeals) Act 2004 (c. 14), Sch. 1 Pt. 13

Commencement Information

I1S. 3 not in force at Royal Assent see s. 125(3); s. 3(2)-(8) in force at 28.7.1995 by S.I. 1995/1983, art. 2; s. 3(1) in force at 1.4.1996 by S.I. 1996/186, art 3

4 Principal aim and objectives of the Agency.E+W+S

(1)It shall be the principal aim of the Agency (subject to and in accordance with the provisions of this Act or any other enactment and taking into account any likely costs) in discharging its functions so to protect or enhance the environment, taken as a whole, as to make the contribution towards attaining the objective of achieving sustainable development mentioned in subsection (3) below.

(2)The [F4Secretary of State] shall from time to time give guidance to the Agency with respect to objectives which [F5the Secretary of State considers] it appropriate for the Agency to pursue in the discharge of its functions.

(3)The guidance given under subsection (2) above must include guidance with respect to the contribution which, having regard to the Agency’s responsibilities and resources, the [F6Secretary of State considers] it appropriate for the Agency to make, by the discharge of its functions, towards attaining the objective of achieving sustainable development.

(4)In discharging its functions, the Agency shall have regard to guidance given under this section.

(5)The power to give guidance to the Agency under this section shall only be exercisable [F7after consultation with—

(a)the Agency,

(b)Natural England, and

(c)such other persons as] the [F8Secretary of State considers] it appropriate to consult in relation to the guidance in question.

(6)A draft of any guidance proposed to be given under this section shall be laid before each House of Parliament and the guidance shall not be given until after the period of 40 days beginning with the day on which the draft was so laid or, if the draft is laid on different days, the later of the two days.

(7)If, within the period mentioned in subsection (6) above, either House resolves that the guidance, the draft of which was laid before it, should not be given, the [F9Secretary of State] shall not give that guidance.

(8)In reckoning any period of 40 days for the purposes of subsection (6) or (7) above, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

(9)The [F10Secretary of State] shall arrange for any guidance given under this section to be published in such manner as [F11the Secretary of State considers] appropriate.

[F12Chapter 1AE+W+SGeneral functions of the Agency and the Natural Resources Body for Wales]

E+W+S

5 General functions with respect to pollution control.E+W+S

(1)[F13An appropriate agency's] pollution control powers shall be exercisable for the purpose of preventing or minimising, or remedying or mitigating the effects of, pollution of the environment.

(2)[F14An appropriate agency] shall, for the purpose—

(a)of facilitating the carrying out of its pollution control functions, or

(b)of enabling it to form an opinion of the general state of pollution of the environment,

compile information relating to such pollution (whether the information is acquired by the Agency carrying out observations or is obtained in any other way).

(3)If required by [F15the appropriate national authority] to do so, [F16an appropriate agency] shall—

(a)carry out assessments (whether generally or for such particular purpose as may be specified in the requirement) of the effect, or likely effect, on the environment of existing or potential levels of pollution of the environment and report its findings to [F17the appropriate national authority]; or

(b)prepare and send to [F18the appropriate national authority] a report identifying—

(i)the options which the [F19appropriate agency] considers to be available for preventing or minimising, or remedying or mitigating the effects of, pollution of the environment, whether generally or in cases or circumstances specified in the requirement; and

(ii)the costs and benefits of such options as are identified by the [F19appropriate agency] pursuant to sub-paragraph (i) above.

(4)[F20An appropriate agency] shall follow developments in technology and techniques for preventing or minimising, or remedying or mitigating the effects of, pollution of the environment.

(5)In this section, “pollution control powers” and “pollution control functions”, in relation to [F21an appropriate agency], mean respectively its powers or its functions under or by virtue of the following enactments, that is to say—

(a)the M16Alkali, &c, Works Regulation Act 1906;

(b)Part I of the M17Health and Safety at Work etc. Act 1974;

(c)Part I of the M18Control of Pollution Act 1974;

(d)the M19Control of Pollution (Amendment) Act 1989;

(e)Parts[F22 I,] II and IIA of the 1990 Act (integrated pollution control etc, waste on land and contaminated land);

(f)Chapter III of Part IV of the M20Water Industry Act 1991 (special category effluent);

(g)Part III and sections 161 to 161D of the 1991 Act (control of pollution of water resources);

(h)[F23the M21Radioactive Substances Act 1993;]

[F24(i)regulations under section 2 of the Pollution Prevention and Control Act 1999;]

[F25(i)regulations under section 2 of the Pollution Prevention and Control Act 1999;]

(j)regulations made by virtue of section 2(2) of the M22European Communities Act 1972, to the extent that the regulations relate to pollution.

[F26(6)But in relation to the Natural Resources Body for Wales, “pollution control powers” and “pollution control functions” do not include powers or functions which—

(a)were exercisable by the Countryside Council for Wales or the Forestry Commissioners immediately before 1 April 2013; and

(b)are functions of that Body by virtue of the Natural Resources Body for Wales (Functions) Order 2013.]

Textual Amendments

F25S. 5(5)(i) inserted (21.3.2000 for E.W and otherwise prosp.) by 1999 c. 24, ss. 6(1), 7(3), Sch. 2 para. 15; S.I. 2000/800, art. 2

Commencement Information

I2S. 5 wholly in force at 1.4.1996; s. 5 not in force at Royal Assent see s. 125(3); s. 5(2)(5) in force at 1.2.1996 by S.I. 1996/186, art 2; s. 5(1)(3)(4) in force at 1.4.1996 by S.I. 1996/186, art 3

Marginal Citations

6 General provisions with respect to water.E+W+S

(1)It shall be the duty of [F27an appropriate agency], to such extent as it considers desirable, generally to promote—

(a)the conservation and enhancement of the natural beauty and amenity of inland and coastal waters and of land associated with such waters;

(b)the conservation of flora and fauna which are dependent on an aquatic environment; and

(c)the use of such waters and land for recreational purposes;

and it shall be the duty of [F27an appropriate agency], in determining what steps to take in performance of the duty imposed by virtue of paragraph (c) above, to take into account the needs of persons who are chronically sick or disabled. This subsection is without prejudice to the duties of the Agency under section 7 below.

(2)It shall be the duty of the Agency to take all such action as it may from time to time consider, in accordance with any directions given under section 40 below, to be necessary or expedient for the purpose—

(a)of conserving, redistributing or otherwise augmenting water resources in England F28...; and

(b)of securing the proper use of water resources in England F28...[F29(including the efficient use of those resources)];

but nothing in this subsection shall be construed as relieving any water undertaker of the obligation to develop water resources for the purpose of performing any duty imposed on it by virtue of section 37 of the M23Water Industry Act 1991 (general duty to maintain water supply system).

[F30(2A)The Natural Resources Body for Wales must take all such action as it may from time to time consider, in accordance with any directions given under article 11 of the Natural Resources Body for Wales (Establishment) Order 2012 (S.I.2012/1903), to be necessary or expedient for the purpose—

(a)of conserving, redistributing or otherwise augmenting water resources in Wales; and

(b)of securing the proper use of water resources in Wales (including the efficient use of those resources);

but nothing in this subsection shall be construed as relieving any water undertaker of the obligation to develop water resources for the purpose of performing any duty imposed on it by virtue of section 37 of the Water Industry Act 1991 (general duty to maintain water supply system).]

(3)The provisions of the 1991 Act relating to the functions of the Agency under Chapter II of Part II of that Act and the related water resources provisions so far as they relate to other functions of the Agency shall not apply to so much of any inland waters as—

(a)are part of the River Tweed;

(b)are part of the River Esk or River Sark at a point where either of the banks of the river is in Scotland; or

(c)are part of any tributary stream of the River Esk or the River Sark at a point where either of the banks of the tributary stream is in Scotland.

[F31(3A)Subsection (3) above shall apply to—

(a)sections 3 and 4 of the Water Act 2003; and

(b)such of the related water resources provisions as apply in relation to those sections by virtue of section 33(2) of the Water Act 2003,

as it applies to the provisions referred to in that subsection.]

[F32(4)The Agency shall in relation to England and [F33the Natural Resources Body for Wales shall in relation to] Wales exercise a general supervision over all matters relating to flood and coastal erosion risk management, in accordance with Part 1 of the Flood and Water Management Act 2010.]

(5)The Agency’s flood defence functions shall extend to the territorial sea adjacent to England and [F34the Natural Resources Body for Wales' flood defence functions shall extend to the territorial sea adjacent to] Wales in so far as—

(a)[F35the region of any Regional Flood and Coastal Committee] includes any area of that territorial sea; or

(b)section 165(2) or (3) of the 1991 Act (drainage works for the purpose of defence against sea water or tidal water, and works etc to secure an adequate outfall for a main river) provides for the exercise of any power in the territorial sea.

(6)It shall be the duty of [F36an appropriate agency] to maintain, improve and develop [F37fisheries of—

(a)salmon, trout, eels, lampreys, smelt and freshwater fish, and

(b)fish of such other description as may be specified for the purposes of this subsection by order under section 40A of the Salmon and Freshwater Fisheries Act 1975.]

(7)The area in respect of which the Agency shall carry out its functions relating to fisheries shall be the whole of England F38..., together with—

(a)such part of the territorial sea adjacent to England F38... as extends for six miles from the baselines from which the breadth of that sea is measured,

(b)in the case of—

F39(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii)the M24Salmon and Freshwater Fisheries Act 1975,

(iii)Part V of the 1991 Act (general control of fisheries), and

(iv)subsection (6) above,

so much of the River Esk, with its banks and tributary streams up to their source, as is situated in Scotland, and

(c)in the case of sections 31 to 34 and 36(2) of the M25Salmon and Freshwater Fisheries Act 1975 as applied by section 39(1B) of that Act, so much of the catchment area of the River Esk as is situated in Scotland,

but, in the case of the enactments specified in paragraph (b) above, excluding the River Tweed.

[F40(7A)The area in respect of which the Natural Resources Body for Wales shall carry out its functions relating to fisheries shall be the whole of Wales, together with such part of the territorial sea adjacent to Wales as extends for six miles from the baselines from which the breadth of that sea is measured.]

(8)In this section—

  • miles” means international nautical miles of 1,852 metres;

  • the related water resources provisions” has the same meaning as it has in the 1991 Act;

  • [F41“the River Esk” means that River as defined by section 111(4) of the Scotland Act 1998 or as such definition as may be modified by an order under section 111(1) of that Act;]

  • the River Tweed” means “the river” within the meaning of the M26Tweed Fisheries Amendment Act 1859 as amended by byelaws.

  • [F42salmon”, “trout”, “eels”, “smelt”, “fish” and “freshwater fish” have the same meanings as in the Salmon and Freshwater Fisheries Act 1975].

[F43(9)For the purposes of this section, the parts of the territorial sea which are adjacent to Wales, and which are therefore not adjacent to England, are the parts of the sea which are treated as adjacent to Wales for the purposes of section 158 of the Government of Wales Act 2006.]

Textual Amendments

F29Words in s. 6(2)(b) inserted (E.W.) (1.4.2004) by Water Act 2003 (c. 37), ss. 72, 105(3); S.I. 2004/641, art. 3(s) (with Sch. 3 para. 7)

F41S. 6: definition of “the River Esk” inserted (30.6.1999) by S.I. 1999/1746, arts. 1(1), 5(3); S.I. 1998/3178, art. 3

Marginal Citations

7 General environmental and recreational duties.E+W+S

(1)It shall be the duty of each of the Ministers and of the Agency, in formulating or considering—

(a)any proposals relating to any functions of the Agency other than its pollution control functions, so far as may be consistent—

(i)with the purposes of any enactment relating to the functions of the Agency,

(ii)in the case of each of the Ministers, with the objective of achieving sustainable development,

(iii)in the case of the Agency, with any guidance under section 4 above,

(iv)in the case of the Secretary of State, with his duties under section 2 of the M27Water Industry Act 1991,

so to exercise any power conferred on him or it with respect to the proposals as to further the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest;

(b)any proposals relating to pollution control functions of the Agency, to have regard to the desirability of conserving and enhancing natural beauty and of conserving flora, fauna and geological or physiographical features of special interest;

(c)any proposal relating to any functions of the Agency—

(i)to have regard to the desirability of protecting and conserving buildings, sites and objects of archaeological, architectural, engineering or historic interest;

(ii)to take into account any effect which the proposals would have on the beauty or amenity of any rural or urban area or on any such flora, fauna, features, buildings, sites or objects; and

(iii)to have regard to any effect which the proposals would have on the economic and social well-being of local communities in rural areas.

(2)Subject to subsection (1) above, it shall be the duty of each of the Ministers and of the Agency, in formulating or considering any proposals relating to any functions of the Agency—

(a)to have regard to the desirability of preserving for the public any freedom of access to areas of woodland, mountains, moor, heath, down, cliff or foreshore and other places of natural beauty;

(b)to have regard to the desirability of maintaining the availability to the public of any facility for visiting or inspecting any building, site or object of archaeological, architectural, engineering or historic interest; and

(c)to take into account any effect which the proposals would have on any such freedom of access or on the availability of any such facility.

(3)Subsections (1) and (2) above shall apply so as to impose duties on the Agency in relation to—

(a)any proposals relating to the functions of a water undertaker or sewerage undertaker,

(b)any proposals relating to the management, by the company holding an appointment as such an undertaker, of any land for the time being held by that company for any purpose whatever (whether or not connected with the carrying out of the functions of a water undertaker or sewerage undertaker), and

(c)any proposal which by virtue of section 156(7) of the M28Water Industry Act 1991 (disposals of protected land) falls to be treated for the purposes of section 3 of that Act as a proposal relating to the functions of a water undertaker or sewerage undertaker,

as they apply in relation to proposals relating to the Agency’s own functions, other than its pollution control functions.

(4)Subject to obtaining the consent of any navigation authority, harbour authority or conservancy authority before doing anything which causes obstruction of, or other interference with, navigation which is subject to the control of that authority, it shall be the duty of the Agency to take such steps as are—

(a)reasonably practicable, and

(b)consistent with the purposes of the enactments relating to the functions of the Agency,

for securing, so long as the Agency has rights to the use of water or land associated with water, that those rights are exercised so as to ensure that the water or land is made available for recreational purposes and is so made available in the best manner.

(5)It shall be the duty of the Agency, in determining what steps to take in performance of any duty imposed by virtue of subsection (4) above, to take into account the needs of persons who are chronically sick or disabled.

(6)Nothing in this section, the following provisions of this Act or the 1991 Act shall require recreational facilities made available by the Agency to be made available free of charge.

(7)In this section—

  • building” includes structure;

  • pollution control functions”, in relation to the Agency, has the same meaning as in section 5 above.

Marginal Citations

8 Environmental duties with respect to sites of special interest.E+W+S

(1)Where [F44Natural England] F45... is of the opinion that any area of land in England F46...—

(a)is of special interest by reason of its flora, fauna or geological or physiographical features, and

(b)may at any time be affected by schemes, works, operations or activities of [F47an appropriate agency] or by an authorisation given by [F47an appropriate agency],

[F48Natural England] shall notify the fact that the land is of special interest for that reason [F49to the appropriate agency].

[F50(1A)Where the Natural Resources Body for Wales is of the opinion that any area of land in Wales—

(a)is of special interest by reason of its flora, fauna or geological or physiographical features, and

(b)may at any time be affected by schemes, works, operations or activities of the Agency or by an authorisation given by the Agency,

the Natural Resources Body for Wales shall notify the fact that the land is of special interest for that reason to the Agency.]

(2)Where a National Park authority or the Broads Authority is of the opinion that any area of land in a National Park or in the Broads—

(a)is land in relation to which the matters for the purposes of which sections 6(1) and 7 above (other than section 7(1)(c)(iii) above) have effect are of particular importance, and

(b)may at any time be affected by schemes, works, operations or activities of [F51an appropriate agency] or by an authorisation given by [F51an appropriate agency],

the National Park authority or Broads Authority shall notify the [F52appropriate agency] of the fact that the land is such land, and of the reasons why those matters are of particular importance in relation to the land.

(3)Where [F53an appropriate agency] has received a notification under subsection (1) [F54, (1A)] or (2) above with respect to any land, it shall consult the notifying body before carrying out or authorising any works, operations or activities which appear to the [F55appropriate agency] to be likely—

(a)to destroy or damage any of the flora, fauna, or geological or physiographical features by reason of which the land is of special interest; or

(b)significantly to prejudice anything the importance of which is one of the reasons why the matters mentioned in subsection (2) above are of particular importance in relation to that land.

(4)Subsection (3) above shall not apply in relation to anything done in an emergency where particulars of what is done and of the emergency are notified to [F56Natural England], [F57the Natural Resources Body for Wales], the National Park authority in question or, as the case may be, the Broads Authority as soon as practicable after that thing is done.

(5)In this section—

  • authorisation” includes any consent or licence;

  • the Broads” has the same meaning as in the M29Norfolk and Suffolk Broads Act 1988; and

  • National Park authority”, F58. . ., means a National Park authority established under section 63 below which has become the local planning authority for the National Park in question.

F59(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F58Words in definition of “National Park authority” in s. 8(6) repealed (1.4.1997) by 1995 c. 25, s. 120(3), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/2560, art. 2, Sch.

F59S. 8(6) repealed (1.4.1997) by 1995 c. 25, s. 120(3), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/2560, art. 2, Sch.

Marginal Citations

9 Codes of practice with respect to environmental and recreational duties.E+W+S

[F60(1)The appropriate national authority shall have power by order to approve any code of practice issued (whether by the appropriate national authority or by another person) for the purpose of—

(a)giving practical guidance to an appropriate agency with respect to any of the matters for the purposes of which the provisions specified in subsection (5) have effect, and

(b)promoting what appear to the appropriate national authority to be desirable practices by an appropriate agency with respect to those matters,

and may at any time by such an order approve a modification of such a code or withdraw its approval of such a code or modification.]

(2)In discharging its duties under [F61the provisions specified in subsection (5), an appropriate agency] shall have regard to any code of practice, and any modifications of a code of practice, for the time being approved under this section.

(3)[F62The Secretary of State shall not] make an order under this section unless he has first consulted—

(a)the Agency;

(b)[F63Natural England]F64...;

(c)the Historic Buildings and Monuments Commission for England;

(d)the Sports Council F65...; and

(e)such other persons as he considers it appropriate to consult.

[F66(3A)The Welsh Ministers shall not make an order under this section unless they have first consulted—

(a)the Natural Resources Body for Wales;

(b)the Sports Council for Wales; and

(c)such other persons as they consider it appropriate to consult.]

(4)The power F67... to make an order under this section shall be exercisable by statutory instrument; and any statutory instrument containing such an order shall be subject to annulment in pursuance of a resolution of either House of Parliament [F68(in the case of an order made by the Secretary of State) or of the National Assembly for Wales (in the case of an order made by the Welsh Ministers)].

[F69(5)The provisions referred to in subsections (1) and (2) are—

(a)in relation to the Agency, sections 6(1), 7 and 8;

(b)in relation to the Natural Resources Body for Wales—

(i)sections 6(1) and 8; and

(ii)articles 5A, 5C, 5D[F70, 5E] and 5G of the Natural Resources Body for Wales (Establishment) Order 2012 (S.I.2012/1903).]

Textual Amendments

Modifications etc. (not altering text)

C6S. 9(3) excluded (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

[F719ADuty of the Agency to cooperate with the Natural Resources Body for WalesE+W+S

The Agency must cooperate with the Natural Resources Body for Wales, and coordinate its activities with those of the Natural Resources Body for Wales, as may be appropriate in the circumstances.]

10 Incidental functions of the Agency [F72and the Natural Resources Body for Wales].E+W+S

(1)This section has effect—

(a)for the purposes of section 37(1) below, as it applies in relation to the Agency; F73...

[F74(aa)for the purposes of article 9 of the Natural Resources Body for Wales (Establishment) Order 2012 (S.I.2012/1903), in relation to the Natural Resources Body for Wales; and]

(b)for the construction of any other enactment which, by reference to the functions of [F75an appropriate agency], confers any power on or in relation to [F75an appropriate agency];

and any reference in this section to “the relevant purposes” is a reference to the purposes described in paragraphs (a) [F76, (aa)] and (b) above.

(2)For the relevant purposes, the functions of [F77an appropriate agency] shall be taken to include the protection against pollution of—

(a)any waters, whether on the surface or underground, which belong to the [F78appropriate agency] or any water undertaker or from which the [F78appropriate agency] or any water undertaker is authorised to take water;

(b)without prejudice to paragraph (a) above, any reservoir which belongs to or is operated by the [F78appropriate agency] or any water undertaker or which the [F78appropriate agency] or any water undertaker is proposing to acquire or construct for the purpose of being so operated; and

(c)any underground strata from which the [F78appropriate agency] or any water undertaker is for the time being authorised to abstract water in pursuance of a licence under Chapter II of Part II of the 1991 Act (abstraction and impounding).

(3)For the relevant purposes, the functions of [F79an appropriate agency] shall be taken to include joining with or acting on behalf of one or more relevant undertakers for the purpose of carrying out any works or acquiring any land which at least one of the undertakers with which it joins, or on whose behalf it acts, is authorised to carry out or acquire for the purposes of—

(a)any function of that undertaker under any enactment; or

(b)any function which is taken to be a function of that undertaker for the purposes to which section 217 of the M30Water Industry Act 1991 applies.

(4)For the relevant purposes, the functions of [F80an appropriate agency] shall be taken to include the provision of supplies of water in bulk, whether or not such supplies are provided for the purposes of, or in connection with, the carrying out of any other function of the [F81appropriate agency] .

(5)For the relevant purposes, the functions of [F82an appropriate agency] shall be taken to include the provision of houses and other buildings for the use of persons employed by the [F83appropriate agency] and the provision of recreation grounds for persons so employed.

(6)In this section—

  • relevant undertaker” means a water undertaker or sewerage undertaker; and

  • supply of water in bulk” means a supply of water for distribution by a water undertaker taking the supply.

Textual Amendments

Marginal Citations

Advisory committeesE+W+S

F84[11 Advisory committee for Wales.E+W+S

(1)The Secretary of State shall establish and maintain a committee for advising him with respect to matters affecting, or otherwise connected with, the carrying out in Wales of the Agency’s functions.

(2)The committee shall consist of such persons as may from time to time be appointed by the Secretary of State.

(3)The committee shall meet at least once a year.

(4)The Secretary of State may pay to the members of the committee such sums by way of reimbursement (whether in whole or in part) for loss of remuneration, for travelling expenses and for other out-of-pocket expenses as he may determine.]

Textual Amendments

F84S. 11 repealed (W.) (1.4.2002) by S.I. 2002/784, art. 2(2)

F8512 Environment protection advisory committees.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8613 Regional and local fisheries advisory committees.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Flood defence committeesE+W+S

F8714 Regional flood defence committees.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8715 Composition of regional flood defence committees.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8716 Change of composition of regional flood defence committee.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8716APower to alter composition of regional flood defence committees in WalesE+W

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8716BEffect of order under section 16AE+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8717 Local flood defence schemes and local flood defence committees.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8718 Composition of local flood defence committees.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8718APower to revoke local flood defence schemesE+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F8719 Membership and proceedings of flood defence committees.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Chapter IIE+W+S The Scottish Environment Protection Agency

Establishment of SEPAE+W+S

20 The Scottish Environment Protection Agency.E+W+S

(1)There shall be a body to be known as the Scottish Environment Protection Agency (in this Act referred to as “SEPA”), for the purpose of carrying out the functions transferred or assigned to it by or under this Act.

(2)Schedule 6 to this Act shall have effect with respect to SEPA.

[F8820AGeneral purpose of SEPAS

(1)SEPA is to carry out the functions conferred on it by or under this Act or any other enactment for the purpose of protecting and improving the environment (including managing natural resources in a sustainable way).

(2)In carrying out its functions for that purpose SEPA must, except to the extent that it would be inconsistent with subsection (1) to do so, contribute to—

(a)improving the health and well being of people in Scotland, and

(b)achieving sustainable economic growth.

(3)In subsection (1), “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.]

Textual Amendments

Transfer of functions, property etc. to SEPAE+W+S

21 Transfer of functions to SEPA.E+W+S

(1)On the transfer date there shall by virtue of this section be transferred to SEPA—

(a)the functions of river purification authorities, that is to say—

(i)[F89heir functions with respect to water resources under or by virtue of Part III of the Rivers (Prevention of Pollution) (Scotland) Act 1951 (in this Part referred to as “the 1951 Act”) and Part II of the Natural Heritage (Scotland) Act 1991;]

(ii)their functions with respect to water pollution under or by virtue of [F90Part III of the 1951 Act, the M31Rivers (Prevention of Pollution) (Scotland) Act 1965 and ]Part II of the M32Control of Pollution Act 1974;

(iii)[F91their functions as enforcing authority, in relation to releases of substances into the environment, under or by virtue of Part I of the 1990 Act;]

(iv)[F92their functions with respect to flood warning systems under or by virtue of Part VI of the M33Agriculture Act 1970; and]

(v)the functions assigned to them by or under any other enactment apart from this Act;

(b)the functions of waste regulation authorities, that is to say, the functions conferred or imposed on them by or under—

(i)the M34Control of Pollution (Amendment) Act 1989; or

(ii)Part II of the 1990 Act,

or assigned to them by or under any other enactment apart from this Act;

(c)[F93the functions of disposal authorities under or by virtue of sections 3 to 10, 16, 17(1)(a) and 17(2)(b) to (d) of the M35Control of Pollution Act 1974;]

(d)[F94the functions of the chief inspector for Scotland constituted under section 16(3) of the 1990 Act, that is to say, the functions conferred or imposed on him by or under Part I of that Act or assigned to him by or under any other enactment apart from this Act;]

(e)the functions of the chief inspector for Scotland appointed under section 4(2)(b) of the M36Radioactive Substances Act 1993, that is to say, the functions conferred or imposed on him by or under that Act or assigned to him by or under any other enactment apart from this Act;

(f)[F95the functions conferred or imposed by or under the M37Alkali, &c, Works Regulation Act 1906 (in this section referred to as “the 1906 Act”) on the chief, or any other, inspector (within the meaning of that Act), so far as exercisable in relation to Scotland;]

F96(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(h)[F97the functions of local authorities as enforcing authority, in relation to releases of substances into the air, under or by virtue of Part I of the 1990 Act; and]

(i)the functions of the Secretary of State specified in subsection (2) below.

(2)The functions of the Secretary of State mentioned in subsection (1)(i) above are, so far as exercisable in relation to Scotland—

F98(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)his functions under, or under regulations made by virtue of, section 9 of the 1906 Act (registration of works), other than any functions of his as an appellate authority or any function of making regulations;

(c)his functions under section 19 of the M38Clean Air Act 1993 with respect to the creation of smoke control areas by local authorities; and

(d)his functions under section 30(1) of the M39Radioactive Substances Act 1993 (power to dispose of radioactive waste).

F99(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

22 Transfer of property, rights and liabilities to SEPA.E+W+S

(1)On the transfer date—

(a)the property, rights and liabilities of every river purification board shall, by virtue of this paragraph, be transferred to and vested in SEPA;

(b)any property, rights and liabilities which are the subject of a scheme under this section—

(i)made by the Secretary of State; or

(ii)made by a local authority and approved by the Secretary of State,

shall be transferred to and vested in SEPA by and in accordance with the scheme.

F100(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F100(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F100(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F100(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F100(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F100(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F100(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9)Schedule 2 to this Act shall have effect in relation to transfers by or under this section.

Textual Amendments

F100S. 22(2)-(8) repealed (22.7.2004) by Statute Law (Repeals) Act 2004 (c. 14), Sch. 1 Pt. 13

23 Functions of staff commission.E+W+S

[F101The functions of the staff commission established under section 12 of the M40Local Government etc. (Scotland) Act 1994 shall include—

(a)considering and keeping under review the arrangements for the transfer to SEPA, in consequence of this Act or of any scheme made under it, of staff employed by local authorities;

(b)considering such staffing problems arising out of, consequential on or connected with any provision of, or scheme made under, this Act as may be referred to them by the Secretary of State or by any local authority;

(c)advising the Secretary of State as to the steps necessary to safeguard the interests of the staff referred to in paragraph (a) above.]

Other functions etc. of SEPAE+W+S

Prospective

F10224 Consultation with respect to drainage works.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F10325 Assessing flood risk.E+W+S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

26 Power of SEPA to purchase land compulsorily.E+W+S

(1)The Secretary of State may authorise SEPA, for the purpose of any of its functions, to purchase land compulsorily.

(2)The M41Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall apply in relation to the compulsory purchase of land under this section as if this section had been in force immediately before the commencement of that Act and, in relation to such purchase of land, SEPA shall be treated as if it were a local authority within the meaning of that Act.

Marginal Citations

27 Power of SEPA to obtain information about land.E+W+S

(1)Where, with a view to performing a function conferred on it by any enactment, SEPA considers that it ought to have information connected with any land, it may serve on one or more of the persons mentioned in subsection (2) below a notice—

(a)specifying the land, the function and the enactment; and

(b)requiring the recipient of the notice to furnish to SEPA, within such period of not less than 14 days from the date of service of the notice as is specified in the notice—

(i)the nature of his interest in the land; and

(ii)the name and address of each person whom he believes is, as respects the land, a person mentioned in subsection (2) below.

(2)The persons referred to in subsection (1) above are—

(a)the occupier of the land;

(b)any person—

(i)who has an interest in the land as owner, creditor in a heritable security or lessee; or

(ii)who directly or indirectly receives rent for the land; and

(c)any person who, in pursuance of an agreement between himself and a person interested in the land, is authorised to manage the land or to arrange for the letting of it.

(3)A person who—

(a)fails to comply with the requirements of a notice served on him in pursuance of subsection (1) above; or

(b)in furnishing any information in compliance with such a notice makes a statement which he knows to be false in a material particular or recklessly makes a statement which is false in a material particular,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

[F104(4)In subsection (1) above, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.]

Textual Amendments

Modifications etc. (not altering text)

C7S. 27 applied (with modifications) (S.) (26.11.2009) by Flood Risk Management (Scotland) Act 2009 (asp 6), ss. 78, 97(1) (with s. 91); S.S.I. 2009/393, art. 2, sch.

28 Power of SEPA to promote or oppose private legislation.E+W+S

(1)SEPA may, where it is satisfied that it is expedient to do so—

(a)with the consent of the Secretary of State, petition for the issue of a provisional order under the M42Private Legislation Procedure (Scotland) Act 1936; or

(b)oppose any private legislation in Parliament.

(2)An application for the consent mentioned in paragraph (a) of subsection (1) above shall be accompanied by a concise summary of the purposes of the order petitioned for.

(3)In paragraph (b) of subsection (1) above, “private legislation in Parliament” includes—

(a)a provisional order and a Confirmation Bill relating to such an order; and

(b)any local or personal Bill.

Marginal Citations

29 Procedure relating to making of byelaws.E+W+S

The following provisions of the M43Local Government (Scotland) Act 1973—

(a)section 202 (procedure etc. for byelaws);

(b)section 202C (revocation of byelaws);

(c)section 204 (evidence of byelaws),

shall apply in relation to SEPA as they apply in relation to a local authority, provided that in the application of the said section 202 to SEPA for subsection (13) there shall be substituted—

(13)The Scottish Environment Protection Agency shall send a copy of any byelaws made by it to the proper officer of the local authority for any area to the whole or any part of which the byelaws will apply.

Marginal Citations

30 Records held by SEPA.E+W+S

(1)Subject to subsection (3) below—

(a)this section applies to all records (in whatever form or medium)—

(i)transferred to and vested in SEPA by or under section 22 above;

(ii)created or acquired by it in the exercise of any of its functions; or

(iii)otherwise in its keeping;

F105(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F105(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F105(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)SEPA—

(i)shall secure that the Keeper has, at all reasonable hours, unrestricted access to the records preserved by it;

(ii)may afford members of the public, free of charge or on payment of reasonable charges, facilities for inspecting and for obtaining copies or extracts from those records.

(2)Nothing in subsection (1)(e)(ii) above permits infringement of copyright or contravention of conditions subject to which records are in SEPA’s keeping.

(3)Insofar as any provision of any enactment, being a provision which relates to records of a specific kind, is (but for this subsection) inconsistent with subsection (1) above, that subsection is subject to the provision in question.

[F106(4)In subsection (3) above, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.]

General powers and dutiesE+W+S

31 Guidance on [F107SEPA's general purpose and on] sustainable development and other aims and objectives.S

(1)The Secretary of State shall from time to time give guidance to SEPA with respect to aims and objectives which he considers it appropriate for SEPA to pursue in the performance of its functions.

(2)The guidance given under subsection (1) above must include guidance with respect to the contribution which, having regard to SEPA’s responsibilities and resources, the Secretary of State considers it appropriate for SEPA to make, by the performance of its functions, towards attaining the objective of achieving sustainable development.

[F108(2A)The Scottish Ministers may give guidance to SEPA with respect to the carrying out of its duties under section 20A.]

(3)In performing its functions, SEPA shall have regard to guidance given under this section.

(4)The power to give guidance to SEPA under this section shall be exercisable only after consultation with SEPA and such other bodies or persons as the Secretary of State considers it appropriate to consult in relation to the guidance in question.

(5)A draft of any guidance proposed to be given under this section shall be laid before [F109the Scottish Parliament] and the guidance shall not be given until after the period of 40 days beginning with the day on which the draft was so laid F110. . ..

(6)If, within the period mentioned in subsection (5) above, [F109the Scottish Parliament] resolves that the guidance, the draft of which was laid before it, should not be given, the Secretary of State shall not give that guidance.

(7)In reckoning any period of 40 days for the purposes of subsection (5) or (6) above, no account shall be taken of any time during which [F109the ScottishParliament] is dissolved or prorogued or F111. . . adjourned for more than four days.

(8)The Secretary of State shall arrange for any guidance given under this section to be published in such manner as he considers appropriate.

32 General environmental and recreational duties.E+W+S

[F112(1)It shall be the duty of the Secretary of State and of SEPA, in formulating or considering any proposals relating to any functions of SEPA

(a)to have regard to the desirability of conserving and enhancing the natural heritage of Scotland;

(b)to have regard to the desirability of protecting and conserving buildings, sites and objects of archaeological, architectural, engineering or historic interest;

(c)to take into account any effect which the proposals would have on the natural heritage of Scotland or on any such buildings, sites or objects; and

(d)to have regard to the social and economic needs of any area or description of area of Scotland and, in particular, to such needs of rural areas.

(2)Subject to subsection (1) above, it shall be the duty of the Secretary of State and of SEPA, in formulating or considering any proposals relating to any functions of SEPA

(a)to have regard to the desirability of preserving for the public any freedom of access (including access for recreational purposes) to areas of forest, woodland, mountains, moor, bog, cliff, foreshore, loch or reservoir and other places of natural beauty;

(b)to have regard to the desirability of maintaining the availability to the public of any facility for visiting or inspecting any building, site or object of archaeological, architectural, engineering or historic interest; and

(c)to take into account any effect which the proposals would have on any such freedom of access or on the availability of any such facility.

(3)In this section—

  • building” includes structure; and

  • the natural heritage of Scotland” has the same meaning as in section 1(3) of the M44Natural Heritage (Scotland) Act 1991.]

33[F113General duties as respects the state of the environment and effects of pollution.]E+W+S

(1)[F114SEPA’s pollution control powers shall be exercisable for the purpose of preventing or minimising, or remedying or mitigating the effects of, pollution of the environment.]

(2)SEPA [F115shall] [F115may], for the purpose—

(a)of facilitating the carrying out of its [F116pollution control] functions; or

(b)of enabling it to form an opinion of the general state of [F117pollution of] the environment,

compile information relating to [F118such pollution] [F118the general state of the environment] (whether the information is acquired by SEPA carrying out observations or is obtained in any other way).

(3)If required by the Secretary of State to do so, SEPA shall—

(a)carry out assessments (whether generally or for such particular purpose as may be specified in the requirement) of the effect, or likely effect, on the environment of existing or potential levels of pollution of the environment and report its findings to the Secretary of State; or

(b)prepare and send to the Secretary of State a report identifying—

(i)the options which SEPA considers to be available for preventing or minimising, or remedying or mitigating the effects of, pollution of the environment, whether generally or in cases or circumstances specified in the requirement; and

(ii)the costs and benefits of such options as are identified by SEPA pursuant to sub-paragraph (i) above.

(4)[F119SEPA shall follow developments in technology and techniques for preventing or minimising, or remedying or mitigating the effects of, pollution of the environment.]

(5)[F120In this section, “pollution control powers” and “pollution control functions” in relation to SEPA, mean respectively its powers or its functions under or by virtue of—

(a)the M45Alkali, &c. Works Regulation Act 1906;

(b)F121... Parts I, IA and II of the M46Control of Pollution Act 1974;

(c)Part I of the M47Health and Safety at Work etc. Act 1974;

(d)the M48Control of Pollution (Amendment) Act 1989;

(e)Parts I, II and IIA of the 1990 Act;

(f)section 19 of the M49Clean Air Act 1993;

(g)the M50Radioactive Substances Act 1993;

[F122(ga)regulations under section 2 of the Pollution Prevention and Control Act 1999;] F123...

(h)regulations made by virtue of section 2(2) of the M51European Communities Act 1972, to the extent that the regulations relate to pollution [F124and;

(i)the Water Environment and Water Services (Scotland) Act 2003 (asp 3) and any regulations made under that Act.]]

Textual Amendments

F122S. 33(5)(ga) inserted (21.3.2000 (E.W.) and 29.9.2000 (S.)) by 1999 c. 24, s. 6(1), Sch. 2 para. 16; S.I. 2000/800, art. 2; S.S.I. 2000/322, art. 2

Marginal Citations

34 General duties with respect to water.E+W+S

F125[F126(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)Without prejudice to section 32 above, it shall be the duty of SEPA, to such extent as it considers desirable, generally to promote—

(a)the conservation and enhancement of the natural beauty and amenity of inland and coastal waters and of land associated with such waters; and

(b)the conservation of flora and fauna which are dependent on an aquatic environment.

F127(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F127(4). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

35 Environmental duties as respects Natural Heritage Areas and sites of special interest.E+W+S

[F128(1)Where an area of land—

(a)has been designated, under section 6(2) of the M52Natural Heritage (Scotland) Act 1991 (in this section referred to as “the 1991 Act”) as a Natural Heritage Area; or

(b)is, in the opinion of Scottish Natural Heritage (in this section referred to as “SNH”), of special interest by reason of its flora, fauna or geological or physiographical features,

and SNH consider that it may at any time be affected by schemes, works, operations or activities of SEPA or by an authorisation given by SEPA, SNH shall give notice to SEPA in accordance with subsection (2) below.

(2)A notice under subsection (1) above shall specify—

(a)in the case of an area of land mentioned in paragraph (a) of that subsection, SNH’s reasons for considering that the area is of outstanding value to the natural heritage of Scotland; and

(b)in the case of an area of land mentioned in paragraph (b) of that subsection, SNH’s reasons for holding the opinion there mentioned.

(3)Where SNH has given notice under subsection (1) above in respect of an area of land and—

(a)in the case of an area of land mentioned in paragraph (a) of that subsection, the designation is cancelled or varied under section 6(7) of the 1991 Act; or

(b)in the case of an area of land mentioned in paragraph (b) of that subsection, SNH ceases to be of the opinion there mentioned,

SNH shall forthwith notify SEPA of that fact.

(4)Where SEPA has received notice under subsection (1) above with respect to any area of land, it shall (unless SNH has given notice under subsection (3) above with respect to the land) consult SNH before carrying out or authorising any schemes, works, operations or activities which appear to SEPA to be likely—

(a)in the case of an area of land mentioned in subsection (1)(a), significantly to prejudice the value of the land, or any part of it, as a Natural Heritage Area; and

(b)in the case of an area of land mentioned in subsection (1)(b), to destroy or damage any of the flora or fauna or features by reason of which SNH formed the opinion there mentioned.

(5)Subsection (4) above shall not apply in relation to anything done in an emergency if particulars of what is done and of the emergency are notified by SEPA to SNH as soon as practicable after the thing is done.

(6)In this section, “authorisation” includes any consent, licence or permission.

(7)Any expression used in this section and in Part I of the 1991 Act and not defined in this Act shall be construed in accordance with that Part.]

Textual Amendments

Marginal Citations

36 Codes of practice with respect to environmental and recreational duties.E+W+S

[F129(1)The Secretary of State shall have power by order to approve any code of practice issued (whether by him or by another person) for the purpose of—

(a)giving practical guidance to SEPA with respect to any of the matters for the purposes of which sections 32[F130, 34(2) and 35][F130and 34(2)] above have effect; and

(b)promoting what appear to him to be desirable practices by SEPA with respect to those matters,

and may at any time by such an order approve a modification of such a code or withdraw his approval of such a code or modification.

(2)In discharging its duties under section 32[F131, 34(2) or 35][F131or 34(2)] above, SEPA shall have regard to any code of practice, and any modifications of a code of practice, for the time being approved under this section.

(3)The Secretary of State shall not make an order under this section unless he has first consulted—

(a)SEPA;

(b)Scottish Natural Heritage;

(c)Scottish Enterprise;

(d)Highlands and Islands Enterprise;

[F132(da)Scottish Water;]

(g)[F133the North of Scotland Water Authority; and]

(h)such other persons as he considers it appropriate to consult.

(4)The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument; and any statutory instrument containing such an order shall be subject to annulment in pursuance of a resolution of either House of Parliament.]

Chapter IIIE+W+S Miscellaneous, General and Supplemental Provisions Relating to the New Agencies [F134and the Natural Resources Body for Wales]

Additional general powers and dutiesE+W+S

37 Incidental general functions.E+W+S

(1)Each new Agency (that is to say, in this Part, the Agency or SEPA)—

(a)may do anything which, in its opinion, is calculated to facilitate, or is conducive or incidental to, the carrying out of its functions; and

(b)without prejudice to the generality of that power, may, for the purposes of, or in connection with, the carrying out of those functions, acquire and dispose of land and other property and carry out such engineering or building operations as it considers appropriate;

and the Agency may institute criminal proceedings in England and Wales.

(2)It shall be the duty of each new Agency to provide the Secretary of State or the Minister with such advice and assistance as he may request.

(3)Subject to subsection (4) below, each new Agency may provide for any person, whether in or outside the United Kingdom, advice or assistance, including training facilities, as respects any matter in which that new Agency has skill or experience.

(4)Without prejudice to any power of either new Agency apart from subsection (3) above to provide advice or assistance of the kind mentioned in that subsection, the power conferred by that subsection shall not be exercised in a case where the person for whom the advice or assistance is provided is outside the United Kingdom, except with the consent in writing of the appropriate Minister which consent may be given subject to such conditions as the Minister giving it thinks fit.

(5)Each new Agency—

(a)shall make arrangements for the carrying out of research and related activities (whether by itself or by others) in respect of matters to which its functions relate; and

(b)may make the results of any such research or related activities available to any person in return for payment of such fee as it considers appropriate.

(6)Subsection (5) above shall not be taken as preventing a new Agency from making the results of any research available to the public free of charge whenever it considers it appropriate to do so.

(7)Each new Agency may by agreement with any person charge that person a fee in respect of work done, or services or facilities provided, as a result of a request made by him for advice or assistance, whether of a general or specific character, in connection with any matter involving or relating to environmental licences.

(8)Subsection (7) above—

(a)is without prejudice to the generality of the powers of either new Agency to make charges; but

(b)is subject to any such express provision with respect to charging by the new Agency in question as is contained in the other provisions of this Part or in any other enactment.

[F135(8A)In subsection (8) above, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.]

(9)In this section “engineering or building operations”, without prejudice to the generality of that expression, includes—

(a)the construction, alteration, improvement, maintenance or demolition of any building or structure or of any reservoir, watercourse, dam, weir, well, borehole or other works; and

(b)the installation, modification or removal of any machinery or apparatus.

Textual Amendments

Modifications etc. (not altering text)

C9S. 37(2)(4) functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 6 (with art. 24)

Commencement Information

I3S. 37 wholly in force at 1.4.1996; s. 37 not in force at Royal Assent see s. 125(3); s. 37(1)(2)(9) in force at 28.7.1995 by S.I. 1995/1983, art. 2; s. 37(3)-(8) in force at 1.4.1996 by S.I. 1996/186, art 3

38 Delegation of functions by Ministers etc. to the new Agencies.E+W+S

(1)Agreements may be made between—

(a)any Minister of the Crown, and

(b)a new Agency,

authorising the new Agency (or any of its employees) to exercise on behalf of that Minister, with or without payment, any eligible function of his.

(2)An agreement under subsection (1) above shall not authorise the new Agency (or any of its employees) to exercise on behalf of a Minister of the Crown any function which consists of a power to make regulations or other instruments of a legislative character or a power to fix fees or charges.

(3)An agreement under this section may provide for any eligible function to which it relates to be exercisable by the new Agency in question (or any of its employees)—

(a)either wholly or to such extent as may be specified in the agreement;

(b)either generally or in such cases or areas as may be so specified; or

(c)either unconditionally or subject to the fulfilment of such conditions as may be so specified.

(4)Subsection (5) below applies where, by virtue of an agreement under this section, a new Agency (or any of its employees) is authorised to exercise any function of a Minister of the Crown.

(5)Subject to subsection (6) below, anything done or omitted to be done by the new Agency (or an employee of the new Agency) in, or in connection with, the exercise or purported exercise of the function shall be treated for all purposes as done or omitted to be done by that Minister in his capacity as such.

(6)Subsection (5) above shall not apply—

(a)for the purposes of so much of any agreement made between that Minister and the new Agency as relates to the exercise of the function; or

(b)for the purposes of any criminal proceedings brought in respect of anything done or omitted to be done as mentioned in that subsection.

(7)An agreement under this section shall not prevent a Minister of the Crown exercising any function to which the agreement relates.

(8)Where a Minister of the Crown has power to include, in any arrangements which he makes in relation to the performance by him of an eligible function, provision for the making of payments to him—

(a)by other parties to the arrangements, or

(b)by persons who use any facilities or services provided by him pursuant to the arrangements or in relation to whom the function is otherwise exercisable,

he may include in any such arrangements provision for the making of such payments to him or a new Agency in cases where the new Agency (or any of its employees) acts on his behalf by virtue of an agreement under this section.

(9)The power conferred on a Minister of the Crown by subsection (1) above is in addition to any other power by virtue of which functions of his may be exercised by other persons on his behalf.

(10)In this section—

  • eligible function” means any function of a Minister of the Crown which the Secretary of State, having regard to the functions conferred or imposed upon the new Agency in question under or by virtue of this Act or any other enactment, considers can appropriately be exercised by that new Agency (or any of its employees) on behalf of that Minister;

  • [F136enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;]

  • Minister of the Crown” has the same meaning as in the Ministers of the M53Crown Act 1975.

Textual Amendments

Modifications etc. (not altering text)

C10S. 38 modified (30.6.1999) by S.I. 1999/1746, arts. 1(1), 5(1); S.I. 1998/3178, art. 3

C11S. 38 functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 6 (with art. 24)

Marginal Citations

39 General duty of the [F137new Agencies] [F137Agency] to have regard to costs and benefits in exercising powers.E+W+S

(1)[F138Each new] [F138The] Agency—

(a)in considering whether or not to exercise any power conferred upon it by or under any enactment, or

(b)in deciding the manner in which to exercise any such power,

shall, unless and to the extent that it is unreasonable for it to do so in view of the nature or purpose of the power or in the circumstances of the particular case, take into account the likely costs and benefits of the exercise or non-exercise of the power or its exercise in the manner in question.

(2)The duty imposed upon [F139a new] [F139the] Agency by subsection (1) above does not affect its obligation, nevertheless, to discharge any duties, comply with any requirements, or pursue any objectives, imposed upon or given to it otherwise than under this section.

40 Ministerial directions to the new Agencies.E+W+S

(1)The appropriate Minister may give a new Agency directions of a general or specific character with respect to the carrying out of any of its functions.

(2)The appropriate Minister may give a new Agency such directions of a general or specific character as he considers appropriate for the implementation of—

(a)any obligations of the United Kingdom under the [F140EU] Treaties, or

(b)any international agreement to which the United Kingdom is for the time being a party.

(3)Any direction under subsection (2) above shall be published in such manner as the Minister giving it considers appropriate for the purpose of bringing the matters to which it relates to the attention of persons likely to be affected by them; and—

(a)copies of the direction shall be made available to the public; and

(b)notice shall be given—

(i)in the case of a direction given to the Agency, in the London Gazette, or

(ii)in the case of a direction given to SEPA, in the Edinburgh Gazette,

of the giving of the direction and of where a copy of the direction may be obtained.

(4)The provisions of subsection (3) above shall have effect in relation to any direction given to a new Agency under an enactment other than subsection (2) above for the implementation of—

(a)any obligations of the United Kingdom under the [F140EU] Treaties, or

(b)any international agreement to which the United Kingdom is for the time being a party,

as those provisions have effect in relation to a direction given under subsection (2) above.

(5)In determining—

(a)any appeal against, or reference or review of, a decision of a new Agency, or

(b)any application transmitted from a new Agency,

the body or person making the determination shall be bound by any direction given under this section or any other enactment by a Minister of the Crown to the new Agency to the same extent as the new Agency.

(6)Any power to give a direction under this section shall be exercisable, except in an emergency, only after consultation with the new Agency concerned.

(7)Any power of the appropriate Minister to give directions to a new Agency otherwise than by virtue of this section shall be without prejudice to any power to give directions conferred by this section.

(8)It is the duty of a new Agency to comply with any direction which is given to that new Agency by a Minister of the Crown under this section or any other enactment.

[F141(9)In this section, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.]

[F142(9)For the purposes of this section, the “appropriate Minister” in relation to the Agency is—

(a)in any case not falling within paragraph (b), the Secretary of State;

(b)in the case of a direction under subsection (1)—

(i)which would have any effect in Wales, or

(ii)which relates to water resources management, water supply, rivers or other watercourses, control of pollution of water resources, sewerage or land drainage, and which would have any effect in the catchment areas of the rivers Dee, Wye and Severn,

the Secretary of State or the Welsh Ministers.

(10)The Secretary of State may give a direction falling within subsection (9)(b) only after consulting the Welsh Ministers.

(11)The Welsh Ministers may give a direction under this section only with the consent of the Secretary of State.]

Charging schemesE+W+S

41 Power to make schemes imposing charges.E+W+S

(1)Subject to the following provisions of this section and [F143sections 41B, 41C and 4] below—

(a)in the case of any particular licence under Chapter II of Part II of the 1991 Act (abstraction and impounding), [F144an appropriate agency] may require the payment to it of such charges as may from time to time be prescribed;

(b)in relation to other environmental licences, there shall be charged by and paid to [F145the Agency, the Natural Resources Body for Wales or SEPA] such charges as may from time to time be prescribed; F146...

[F147(ba)as a means of recovering costs incurred by it in performing functions conferred by the Reservoirs Act 1975 [F148an appropriate agency] may require the payment to it of such charges as may from time to time be prescribed;]

(c)[F149as a means of recovering costs incurred by it in performing functions conferred by regulations under section 62 of the 1990 Act (dangerous or intractable waste) each of the new Agencies may require the payment to it of such charges as may from time to time be prescribed;]

[F149as a means of recovering costs incurred by it in performing functions conferred by regulations made for the purpose of implementing [F150Directive 2008/98/EC to the extent that it relates to hazardous waste (within the meaning given by Article 3(2) of that Directive)] [F151an appropriate agency] may require the payment to it of such charges as may from time to time be prescribed;]F152[F153...

(d)as a means of recovering costs incurred by it in performing functions conferred by Regulation (EC) No 1013/2006 of the European Parliament and of the Council on shipments of waste, as amended from time to time, [F154the Agency, the Natural Resources Body for Wales or SEPA] may require the payment to it of such charges as may from time to time be prescribed;]F155[F156...

(e)as a means of recovering costs incurred by it in performing functions conferred by Regulation (EC) No. 850/2004 of the European Parliament and of the Council on persistent organic pollutants and amending Directive 79/117/EEC as amended from time to time, [F157the Agency, the Natural Resources Body for Wales or SEPA] may require the payment to it of such charges as may from time to time be prescribed;]

[F158(f)as a means of recovering costs incurred by it in performing functions conferred by regulations under section 79 of the Climate Change (Scotland) Act 2009 (asp 12), SEPA may require the payment to it of such charges as may from time to time be prescribed;]

[F159(f)as a means of recovering costs incurred by it in performing functions conferred by regulations made for the purposes of implementing Council Directive 2006/117/Euratom on the supervision and control of shipments of radioactive waste and spent fuel (as amended from time to time), [F160an appropriate agency] may require the payment to it of such charges as may from time to time be prescribed;]

[F161(g)as a means of recovering costs incurred by it in performing functions conferred by regulations made for the purpose of implementing Directive 2006/66/EC of the European Parliament and of the Council on batteries and accumulators and waste batteries and accumulators, as amended from time to time, [F162the Agency, the Natural Resources Body for Wales or SEPA] may require the payment to it of such charges as may from time to time be [F163 prescribed;]]

[F164(h)as a means of recovering costs incurred by it in performing functions conferred by regulation 8A of the Greenhouse Gas Emissions Trading Scheme (Amendment) and National Inventory Regulations 2005, the Agency may require the payment to it of such charges as may from time to time be prescribed;

F165(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F165(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

and in this section “prescribed” means specified in, or determined under, a scheme (in this section referred to as a “charging scheme”) made under this section by the [F166body] in question.

(2)As respects environmental licences, charges may be prescribed in respect of—

(a)the grant or variation of an environmental licence, or any application for, or for a variation of, such a licence;

(b)the subsistence of an environmental licence;

(c)the transfer (where permitted) of an environmental licence to another person, or any application for such a transfer;

(d)the renewal (where permitted) of an environmental licence, or any application for such a renewal;

(e)the surrender (where permitted) of an environmental licence, or any application for such a surrender; or

(f)any application for the revocation (where permitted) of an environmental licence.

[F167(g)any other approval, consent, consideration or determination carried out by the Agency relating to any obligations of the United Kingdom under the [F140EU] Treaties or any application for such an approval of consent, consideration or determination.]

F168(2A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)A charging scheme may, for the purposes of subsection (2)(b) above, impose—

(a)a single charge in respect of the whole of any relevant licensed period;

(b)separate charges in respect of different parts of any such period; or

(c)both such a single charge and such separate charges;

and in this subsection “relevant licensed period” means the period during which an environmental licence is in force or such part of that period as may be prescribed.

(4)Without prejudice to subsection (7)(a) below, a charging scheme may, as respects environmental licences, provide for different charges to be payable according to—

(a)the description of environmental licence in question;

(b)the description of authorised activity in question;

(c)the scale on which the authorised activity in question is carried on;

(d)the description or amount of the substance to which the authorised activity in question relates;

(e)the number of different authorised activities carried on by the same person.

(5)A charging scheme—

(a)shall specify, in relation to any charge prescribed by the scheme, the description of person who is liable to pay the charge; and

(b)may provide that it shall be a condition of an environmental licence of any particular description that any charge prescribed by a charging scheme in relation to an environmental licence of that description is paid in accordance with the scheme.

(6)Without prejudice to subsection (5)(b) above, if it appears to [F169the Agency, the Natural Resources Body for Wales or SEPA] that any charges due and payable to it in respect of the subsistence of an environmental licence have not been paid, it may, in accordance with the appropriate procedure, suspend or revoke the environmental licence to the extent that it authorises the carrying on of an authorised activity.

(7)A charging scheme may—

(a)make different provision for different cases, including different provision in relation to different persons, circumstances or localities;

(b)provide for the times at which, and the manner in which, the charges prescribed by the scheme are to be paid;

(c)revoke or amend any previous charging scheme;

(d)contain supplemental, incidental, consequential or transitional provision for the purposes of the scheme.

(8)If and to the extent that a charging scheme relates to licences under Chapter II of Part II of the 1991 Act (abstraction and impounding), the scheme shall have effect subject to any provision made by or under sections 125 to 130 of that Act (exemption from charges, imposition of special charges for spray irrigation, and charges in respect of abstraction from waters of [F170Canal & River Trust]).

(9)A new Agency shall not make a charging scheme unless the provisions of the scheme have been approved by the Secretary of State under section 42 below.

[F171(9A)The Natural Resources Body for Wales may not make a charging scheme unless the provisions of the scheme have been approved by the Welsh Ministers under section 42.]

(10)In this section—

  • F172...

  • the appropriate procedure” means such procedure as may be specified or described in regulations made for the purpose by the Secretary of State;

  • authorised activity” means any activity to which an environmental licence relates.

  • F173...

  • F172...

[F174(10A)Any power of the Secretary of State to make regulations under this section is exercisable in relation to Wales only after consultation with the Welsh Ministers.]

(11)Any power to make regulations under this section shall be exercisable by statutory instrument; and a statutory instrument containing any such regulations shall be subject to annulment pursuant to a resolution of either House of Parliament.

Textual Amendments

F143Words in s. 41(1) substituted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 16(2) (with arts. 24, 28)

F146Word in s. 41(1)(b) omitted (12.7.2007) by virtue of The Transfrontier Shipment of Waste Regulations 2007 (S.I. 2007/1711), regs. 1, 46(1)(a) (with reg. 3)

F152Word in s. 41(1)(c) omitted (3.12.2007) by virtue of The Persistent Organic Pollutants Regulations 2007 (S.I. 2007/3106), regs. 1, 9(1)(a)

F174S. 41(10A) inserted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 16(3) (with arts. 24, 28)

Modifications etc. (not altering text)

C15S. 41 applied (with modifications) (2.12.1998) by S.I. 1998/2746, reg. 16(1)

S. 41: certain functions made exercisable only after consultation with the Assembly (W.) (1.7.1999) by S.I. 1999/672, art. 5, Sch. 2

C16S. 41 restricted (E.W.) (3.11.2003) by End-of-Life Vehicles Regulations 2003 (S.I. 2003/2635), regs. 1(2)(b), 49(2) (with regs. 3, 4)

C17S. 41 applied (with modifications) by SI 2002/1559, Sch. 4 para. 5(15) (as inserted (E.W.) (15.5.2006) by The Waste Management (England and Wales) Regulations 2006 (S.I. 2006/937), regs. 1(2), 9(15))

Commencement Information

I4S. 41 wholly in force at 1.4.1996; s. 41 not in force at Royal Assent see s. 125(3); s. 41 in force for specified purposes at 21.9.1995 by S.I. 1995/1983, art. 3; s. 41 in force for further specified purposes at 1.2.1996 by S.I. 1996/186, art 2; s. 41 in force at 1.4.1996 insofar as not already in force by S.I. 1996/186, art 3

[F17541A [F176Charges in respect of [F177the EU greenhouse gas emissions trading scheme]] E+W+S

[F178(1)Each of the [F179charging authorities] may require the payment to it of such charges as may from time to time be prescribed—

(a)as a means of recovering costs incurred by it in performing functions conferred under or by virtue of regulations made for the purpose of implementing the EU ETS Directive;

(b)in respect of—

(i)an application to open an account that, under the [F180Registries Regulation 2013] , is required to be held in a trading scheme registry;

(ii)the subsistence of such an account;

(iii)the updating of information provided to the Agency in relation to such an account;

and in this section “prescribed” means specified in, or determined under, a scheme (in this section referred to as a “charging scheme”) made under this section by the [F181charging authority] in question.

(1A)A charging scheme may—

(a)make different provision for different cases, including different provision in relation to different persons, circumstances or localities;

(b)provide for the times at which, and the manner in which, the charges prescribed by the scheme are to be paid;

(c)revoke or amend any previous charging scheme;

(d)contain supplemental, incidental, consequential or transitional provision for the purposes of the scheme.

(1B)A charging scheme must specify, in relation to any charge prescribed by the scheme, the description of person who is liable to pay the charge.

(1C)A [F182charging authority] may not make a charging scheme unless the provisions of the scheme have been approved by the Secretary of State [F183, the Welsh Ministers] or the Scottish Ministers under section 42.]

(2)If the Agency—

(a)proposes to prescribe [F184charges under subsection (1)(b)] or to amend any provision for such charges included in a charging scheme, and

(b)notifies [F185another charging authority] of its proposals,

the Agency and [F186that other charging authority] shall each include in a charging scheme (subject to approval by the Secretary of State [F187, the Welsh Ministers] [F188or the Scottish Ministers under section 42]) provision giving effect to the proposals.

(3)If the Agency revises any proposals of which it has given notification under subsection (2) above, and notifies [F189the relevant charging authority] accordingly, the obligations imposed by that subsection apply in relation to the proposals as revised.

(4)A notification under subsection (2) or (3) above shall include details of the amount of the proposed charges.

(5)[F190The Natural Resources Body for Wales and] SEPA shall pass on to the Agency any [F191charges under subsection (1)(b)] that [F192they receive] .

(6)A charging scheme made by the Agency may require the payment to the Agency of such charges as may from time to time be prescribed in respect of—

[F193(a)an application to open an account in a trading scheme registry, other than one that under the [F194Registries Regulation 2013] is required to be held in that registry;]

(b)the subsistence of such an account;

(c)the updating of information provided to the Agency in relation to such an account.

[F195(7)In this section—

  • “charging authority” means the Agency, the Natural Resources Body for Wales or SEPA;

  • “the Registries Regulation 2013” means Commission Regulation (EU) No 389/2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 290/2004/EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and No 1193/2011, as amended from time to time; and

  • “trading scheme registry” means any registry operated by the Agency for the purpose of meeting the obligations of the United Kingdom referred to in Articles 4(3) and 5(1) of the Registries Regulation 2013.]]

Textual Amendments

F179Words in s. 41A(1) substituted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 17(2)(a) (with art. 24)

F181Words in s. 41A(1) substituted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 17(2)(b) (with art. 24)

F182Words in s. 41A(1C) substituted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 17(3)(a) (with art. 24)

F183Words in s. 41A(1C) inserted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 17(3)(b) (with art. 24)

F185Words in s. 41A(2)(b) substituted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 17(4)(a) (with art. 24)

F186Words in s. 41A(2) substituted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 17(4)(b)(i) (with art. 24)

F187Words in s. 41A(2) inserted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 17(4)(b)(ii) (with art. 24)

F189Words in s. 41A(3) substituted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 17(5) (with art. 24)

F190Words in s. 41A(5) inserted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 17(6)(a) (with art. 24)

F192Words in s. 41A(5) substituted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 17(6)(b) (with art. 24)

[F19641B.Charging schemes in respect of abstraction and impounding licences: joint charging schemesE+W+S

(1)A charging scheme under section 41 relating to licences under Chapter II of Part II of the 1991 Act may be made by both of the appropriate agencies acting jointly (referred to in this section as a “joint charging scheme”), if that scheme prescribes charges in relation to licences granted within a combined area that—

(a)is partly in England and partly in Wales; and

(b)includes all of, or any part of, the catchment areas of the rivers Dee, Wye and Severn.

(2)A joint charging scheme must—

(a)designate the combined area to which it applies; and

(b)specify the manner in which the sums recovered by way of charges prescribed by the scheme are to be apportioned between, and paid to, each appropriate agency.

(3)Subsections (9) and (9A) of section 41 do not apply to joint charging schemes.

(4)Subject to subsection (5), the appropriate agencies may not make a joint charging scheme unless the provisions of the scheme have been approved under section 42 by the Secretary of State and the Welsh Ministers acting jointly.

(5)Section 42 applies in relation to joint charging schemes as though references in that section to—

(a)anything done by or in relation to either the Secretary of State or the Welsh Ministers were references to that thing being done by or in relation to the Secretary of State and the Welsh Ministers acting jointly;

(b)a charging authority were references to both of the appropriate agencies acting jointly.

(6)This section does not affect any power of an appropriate agency to make a charging scheme under section 41.

Textual Amendments

F196Ss. 41B, 41C inserted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 19 (with arts. 24, 28)

41C.Charging schemes in respect of abstraction and impounding licences: cross-border arrangementsE+W+S

(1)An appropriate agency may not make or revise a relevant charging scheme unless it has—

(a)notified the other appropriate agency of its proposal; and

(b)had regard to any information provided by the other appropriate agency relating to costs or expenses—

(i)which the other appropriate agency has incurred or expects to incur, and

(ii)in respect of which the other appropriate agency considers that the relevant charging scheme should make provision.

(2)Subsection (1) does not apply to a joint charging scheme made in accordance with section 41B.

(3)An appropriate agency may not, without the consent of the other appropriate agency, enter into any agreement, or any variation of an agreement, as a result of which it will be liable to incur costs or expenses—

(a)in respect of which it would expect a relevant charging scheme made by the other appropriate agency (or by both of the appropriate agencies acting jointly) to make provision; and

(b)which would, if an existing relevant charging scheme were revised to make provision for the purpose of recovering the amount required to meet those costs or expenses in full, result in a significant increase in the charges payable under that charging scheme.

(4)Either appropriate agency may refer the question of whether consent should be given for the purposes of subsection (3) for determination by the Secretary of State and the Welsh Ministers acting jointly.

(5)The Secretary of State and the Welsh Ministers, acting jointly—

(a)may give guidance to the appropriate agencies as to the exercise of the appropriate agencies’ functions under this section;

(b)must arrange for any guidance given under this subsection to be published in such manner as they consider appropriate.

(6)The appropriate agencies must have regard to any guidance given under subsection (5).

(7)In this section, “relevant charging scheme” means a charging scheme under section 41 which relates to any extent to licences granted under Chapter II of Part II of the 1991 Act in respect of abstractions from, or impounding of, waters in the catchment areas of the rivers Dee, Wye and Severn.]

Textual Amendments

F196Ss. 41B, 41C inserted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 19 (with arts. 24, 28)

42 Approval of charging schemes.E+W+S

(1)Before submitting a proposed charging scheme to the Secretary of State [F197or the Welsh Ministers for approval, a charging authority] shall, in such manner as it considers appropriate for bringing it to the attention of persons likely to be affected by the scheme, publish a notice—

(a)setting out its proposals; and

(b)specifying the period within which representations or objections with respect to the proposals may be made to the Secretary of State [F198or, as the case may be, the Welsh Ministers].

(2)Where any proposed charging scheme has been submitted to the Secretary of State [F199or the Welsh Ministers for] approval, he [F200or they] shall, in determining whether or not to approve the scheme or to approve it subject to modifications,—

(a)consider any representations or objections duly made to him [F201or them] and not withdrawn; and

[F202(b)have regard to—

(i)in the case of a charging scheme made under section 41, the matter specified in subsection (3);

(ii)in the case of a charging scheme made under section 41A, the matter specified in subsection (3A).]

(3)The matter mentioned in subsection [F203(2)(b)(i)] above is the desirability of ensuring that, in the case of each of the descriptions of environmental licence specified in the paragraphs of the definition of that expression in section 56 below, the amounts recovered by the [F204charging authority] in question by way of charges prescribed by charging schemes are the amounts which, taking one year with another, need to be recovered by that [F204charging authority] to meet such of the costs and expenses (whether of a revenue or capital nature)—

(a)which it incurs in carrying out its functions,

[F205(b)which the Food Standards Agency incurs in carrying out its functions in relation to environmental permits under the Environmental Permitting (England and Wales) Regulations 2010 concerning the disposal of radioactive waste within the meaning of those Regulations,]

[F206(c)in the case of licences granted by the Agency under Chapter II of Part II of the 1991 Act (abstraction and impounding), which the Natural Resources Body for Wales incurs in carrying out its functions under Part II of that Act or section 6(2A) above in the catchment areas of the rivers Dee, Wye and Severn for purposes connected with abstractions from, or impounding of, waters in England,

(d)in the case of licences granted by the Natural Resources Body for Wales under Chapter II of Part II of the 1991 Act (abstraction and impounding), which the Agency incurs in carrying out its functions under Part II of that Act or section 6(2) above in the catchment areas of the rivers Dee, Wye and Severn for purposes connected with abstractions from, or impounding of, waters in Wales,]

as the Secretary of State [F207or, as the case may be, the Welsh Ministers] may consider it appropriate to attribute to the carrying out of those functions in relation to activities to which environmental licences of the description in question relate.

[F208(3A)The matter mentioned in subsection (2)(b)(ii) above is the desirability of ensuring that the amounts recovered by the [F209charging authority] in question by way of charges prescribed by charging schemes are the amounts which, taking one year with another, need to be recovered by that [F209charging authority] to meet such of the costs and expenses (whether of a revenue or capital nature) which it incurs in carrying out its functions in relation to the matters described in section 41A(1) as the Secretary of State [F210or, as the case may be, the Welsh Ministers] may consider it appropriate to attribute to the carrying out of those functions.]

(4)Without prejudice to the generality of the expression “costs and expenses”, in determining for the purposes of subsection (3) [F211or (3A)] above the amounts of the costs and expenses which the Secretary of State considers [F212or which the Welsh Ministers consider] it appropriate to attribute to the carrying out of a [F213charging authority's] or the [F214Food Standard Agency’s] functions F215..., the Secretary of State [F216or the Welsh Ministers]

(a)shall take into account any determination of the [F217charging authority's] financial duties under section 44 below [F218or (in the case of the Natural Resources Body for Wales) under article 13 of the Natural Resources Body for Wales (Establishment) Order 2012 (S.I.2012/1903)]; and

(b)may include amounts in respect of the depreciation of, and the provision of a return on, such assets as are held by the [F219charging authority], [F220or the Food Standards Agency], for purposes connected with the carrying out of the functions in question.

(5)If and to the extent that a charging scheme relates to any licence under Chapter II of Part II of the 1991 Act (abstraction and impounding), the Secretary of State [F221or the Welsh Ministers (as the case may be)] may consider it appropriate to attribute to the carrying out of [F222an appropriate agency's] functions in relation to activities to which such a licence relates any costs and expenses incurred by the [F223appropriate agency] in carrying out any of its functions under Part II of that Act or under section 6(2) [F224or (2A)] above.

(6)Subsection (5) above is without prejudice to what costs and expenses the Secretary of State [F225or the Welsh Ministers] may consider it appropriate to attribute to the carrying out of any functions of a [F226charging authority], the Minister or the Secretary of State in relation to activities to which environmental licences of any particular description relate.

(7)The consent of the Treasury shall be required for the giving of approval to a charging scheme [F227submitted by the Agency] [F228or by both of the appropriate agencies acting jointly] . . ..

(8)It shall be the duty of a [F229charging authority] to take such steps as it considers appropriate for bringing the provisions of any charging scheme made by it which is for the time being in force to the attention of persons likely to be affected by them.

(9)If and to the extent that any sums recovered by a [F230charging authority] by way of charges prescribed by charging schemes may fairly be regarded as so recovered for the purpose of recovering the amount required to meet (whether in whole or in part)—[F231such of the costs and expenses incurred by the Food Standards Agency as fall within subsection (3) above] those sums shall be paid by that [F230charging authority] [F232to the Food Standards Agency].

[F233(9A)The Agency must pay to the Natural Resources Body for Wales any sums which the Agency recovers under a charging scheme made under section 41 (other than a joint charging scheme made in accordance with section 41B) that may fairly be regarded as recovered for the purpose of meeting (in whole or in part) any costs and expenses incurred, or deemed to have been incurred, by the Body in carrying out its functions under Part II of the 1991 Act or section 6(2A) above.

(9B)The Natural Resources Body for Wales must pay to the Agency any sums which the Body recovers under a charging scheme made under section 41 (other than a joint charging scheme made in accordance with section 41B) that may fairly be regarded as recovered for the purpose of meeting (in whole or in part) any costs and expenses incurred by the Agency in carrying out its functions under Part II of the 1991 Act or section 6(2) above, other than costs and expenses that are deemed to have been incurred by the Body.

(9C)Any sums recovered by an appropriate agency by way of charges prescribed by a joint charging scheme made in accordance with section 41B must be apportioned between, and paid to, each appropriate agency in the manner specified by the scheme pursuant to section 41B(2)(b).

(9D)For the purposes of subsections (9A) and (9B), costs or expenses are deemed to have been incurred by the Natural Resources Body for Wales if the liability for those costs or expenses was transferred from the Agency to the Body on 1st April 2013—

(a)by a transfer scheme made by the Welsh Ministers under section 23 of the Public Bodies Act 2011; or

(b)by virtue of article 10 of, and paragraph 2 of Schedule 7 to, the Natural Resources Body for Wales (Functions) Order 2013.]

(10)For the purposes of subsection (9) above, any question as to the extent to which any sums may fairly be regarded as recovered for the purpose of recovering the amount required to meet the costs and expenses falling within [F234that subsection shall be determined by the Secretary of State].

[F235(10A)Any dispute as to the apportionment or payment of sums under subsection (9A), (9B) or (9C) shall be determined by the Secretary of State and the Welsh Ministers acting jointly.]

[F236(11)In this section “charging scheme” means a scheme made under section 41 or 41A [F237and “charging authority” means the body that makes or proposes to make a charging scheme].]

[F238(12)In the application of this section to Scotland, the references to the Food Standards Agency are to be read as references to Food Standards Scotland.]

Textual Amendments

F206S. 42(3)(c)(d) inserted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 20(2) (with art. 24)

F209Words in s. 42(3A) substituted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 18(2) (with art. 24)

F210Words in s. 42(3A) inserted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 18(3) (with art. 24)

F214Words in s. 42(4) substituted (1.4.2000) by 1999 c. 28, s. 40(1)(2), Sch. 5 para. 44(1)(3)(s) (with ss. 38, 40(2)); S.I. 2000/1066, art. 2

F220Words in s. 42(4)(b) substituted (1.4.2000) by 1999 c. 28, s. 40(1)(2), Sch. 5 para. 44(1)(3)(b) (with ss. 38, 40(2)); S.I. 2000/1066, art. 2

F227Words in s. 42(7) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 120(3); S.I. 1998/3178, art. 3

F228Words in s. 42(7) inserted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 20(3) (with art. 24)

F231Words in s. 42(9) substituted for paras. (a) and (b) (1.4.2000) by 1999 c. 28, s. 40(1)(2), Sch. 5 para. 44(1)(5)(a) (with ss. 38, 40(2)); S.I. 2000/1066, art. 2

F232Words in s. 42(9) substituted (1.4.2000) by 1999 c. 28, s. 40(1)(2), Sch. 5 para. 44(1)(5)(b) (with ss. 38, 40(2)); S.I. 2000/1066, art. 2

F233S. 42(9A)-(9D) inserted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 20(4) (with arts. 24, 28)

F234Words in s. 42(10) substituted (1.4.2000) by 1999 c. 28, s. 40(1)(2), Sch. 5 para. 44(1)(6) (with s. 38, 40(2)); S.I. 2000/1066, art. 2

F235S. 42(10A) inserted (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 20(5) (with art. 24)

F238S. 42(12) inserted (S.) (1.4.2015) by Food (Scotland) Act 2015 (asp 1), s. 63(2), sch. para. 6 (with s. 62); S.S.I. 2015/99, art. 2

Modifications etc. (not altering text)

C20S. 42 applied (with modifications) (2.12.1998) by S.I. 1998/2746, reg. 16(1)

S. 42: certain functions made exercisable only after consultation with the Assembly (W.) (1.7.1999) by S.I. 1999/672, art. 5, Sch. 2

S. 42 modified (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

C21S. 42 applied (with modifications) by SI 2002/1559, Sch. 4 para. 5(15) (as inserted (E.W.) (15.5.2006) by The Waste Management (England and Wales) Regulations 2006 (S.I. 2006/937), regs. 1(2), 9(15))

C23S. 42 modified (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 21 (with art. 24)

Incidental power to impose chargesE+W+S

43 Incidental power of the new Agencies to impose charges.E+W+S

[F239(1)]Without prejudice to the generality of its powers by virtue of section 37(1)(a) above and subject to any such express provision with respect to charging by a new Agency as is contained in the preceding provisions of this Chapter or any other enactment, each new Agency shall have power to fix and recover charges for services and facilities provided in the course of carrying out its functions.

[F240(2)In subsection (1) above, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.]

Textual Amendments

Modifications etc. (not altering text)

C24S. 43 modified (15.8.2002) by S.I. 2002/1998, art. 24(1) (with art. 33)

General financial provisionsE+W+S

44 General financial duties.E+W+S

(1)The appropriate Ministers may—

(a)after consultation with a new Agency, and

(b)[F241in the case of the Agency only] with the approval of the Treasury,

determine the financial duties of that new Agency; and different determinations may be made for different functions and activities of the new Agency.

(2)The appropriate Ministers shall give a new Agency notice of every determination of its financial duties under this section, and such a determination may—

(a)relate to a period beginning before, on, or after, the date on which it is made;

(b)contain supplemental provisions; and

(c)be varied by a subsequent determination.

(3)The appropriate Minister may, after consultation with F242. . . a new Agency, [F243and, in the case of the Agency only, after consultation with Treasury,] give a direction to that new Agency requiring it to pay to him an amount equal to the whole or such part as may be specified in the direction of any sum, or any sum of a description, so specified which is or has been received by that new Agency.

(4)Where it appears to the appropriate Minister that a new Agency has a surplus, whether on capital or revenue account, he may, after consultation with the Treasury [F244(in the case of the Agency only)] and the new Agency, direct the new Agency to pay to him such amount not exceeding the amount of that surplus as may be specified in the direction.

(5)In the case of the Agency—

(a)subsection (1) above is subject to section 118 of the 1991 Act (special duties with respect to flood defence revenue);

(b)subsection (3) above is subject to sections 118(1)(a) and 119(1) of the 1991 Act (special duties with respect to flood defence revenue and funds raised for fishery purposes under local enactments); and

(c)subsection (4) above is subject to sections 118(1)(b) and 119(2) of the 1991 Act (which provide for flood defence revenue and certain funds raised under local enactments to be disregarded in determining whether there is a surplus).

Textual Amendments

F241Words in s. 44(1)(b) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 120(4); S.I. 1998/3178, art. 3

Modifications etc. (not altering text)

C25S. 44 functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 6 (with art. 24)

C26S. 44(1): Treasury approval requirement continued (1.7.1999) by virtue of S.I. 1999/672, art. 2, Sch. 1

45 Accounts and records.E+W+S

(1)Each new Agency shall—

(a)keep proper accounts and proper accounting records; and

(b)prepare in respect of each accounting year a statement of accounts giving a true and fair view of the state of affairs and the income and expenditure of the new Agency.

(2)Every statement of accounts prepared by a new Agency in accordance with this section shall comply with any requirement which the appropriate Ministers have [F245in the case of the Agency only], with the consent of the Treasury, notified in writing to the new Agency and which relates to any of the following matters, namely—

(a)the information to be contained in the statement;

(b)the manner in which that information is to be presented;

(c)the methods and principles according to which the statement is to be prepared.

(3)In this section—

  • accounting records”, in the case of a new Agency, includes all books, papers and other records of the new Agency relating to, or to matters dealt with in, the accounts required to be kept by virtue of this section;

  • accounting year”, subject to subsection (4) below, means, in relation to a new Agency, a financial year.

(4)If the Secretary of State so directs in relation to any accounting year of either new Agency, that accounting year shall end with such date other than the next 31st March as may be specified in the direction; and, where the Secretary of State has given such a direction, the following accounting year shall begin with the day after the date so specified and, subject to any further direction under this subsection, shall end with the next 31st March.

Textual Amendments

Modifications etc. (not altering text)

C27S. 45(2): Treasury consent requirement continued (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

C28S. 45(2) functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 7 (with art. 24)

[F24646 Audit.E+W+S

(1)The accounts of each new Agency[F247, with the exception of those accounts of the Agency that relate to a financial year ending on or after 31st March 2004,] shall be audited by an auditor appointed for each accounting year by the Secretary of State.

(2)A person shall not be qualified for appointment under subsection (1) above unless—

(a)he is eligible for appointment as a [F248statutory auditor under Part 42 of the Companies Act 2006] ; and

[F249(b)if the appointment were an appointment as a statutory auditor, he would not be prohibited from acting by virtue of section 1214 of that Act (independence requirement).]

(3)A copy of—

(a)any accounts of a new Agency which are audited under subsection (1) above, and

(b)the report made on those accounts by the auditor,

shall be sent to each of the appropriate Ministers as soon as reasonably practicable after the report is received by the new Agency; and the Secretary of State shall lay before each House of Parliament a copy of those accounts and that report.

[F250(3A)The Agency shall send a copy of its accounts in respect of each financial year ending on or after 31st March 2004 to the Comptroller and Auditor General as soon as reasonably practicable after the end of the financial year to which the accounts relate.

(3B)The Comptroller and Auditor General shall examine, certify and report on any accounts sent to him by the Agency under subsection (3A) and shall lay before each House of Parliament a copy of those accounts and his report on them.]

(4)The Comptroller and Auditor General—

(a)shall be entitled to inspect the contents of all accounts and accounting records of a new Agency; and

(b)may report to the House of Commons the results of any inspection carried out by him under paragraph (a) above;

and section 6 of the M54National Audit Act 1983 (examinations of economy, efficiency and effectiveness) accordingly applies to each new Agency.

(5)In this section—

  • accounting records ” has the same meaning as in section 45 above;

  • accounting year ” has the same meaning as in section 45 above;

  • accounts ”, in relation to the Agency, includes any statement under section 45 above. ]

Textual Amendments

F246S. 46 ceases to have effect so far as relating to the Scottish Environment Protection Agency (S.) (1.4.2000) by 2000 asp 1, s. 26, Sch. 4 para. 13(2); S.S.I. 2000/10, art. 2(3)

Modifications etc. (not altering text)

C29S. 46(3) modified (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

C30S. 46(4) functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 10 (with arts. 24, 26)

Marginal Citations

[F25146A Audit: SEPAS

(1)SEPA shall send the statement of accounts for each accounting year to the Scottish Ministers by such time as they may direct.

(2)The Scottish Ministers shall send the statement of accounts to the Auditor General for Scotland for auditing.

(3)In this section, “accounting year” has the same meaning as in section 45 above.]

Textual Amendments

F251S. 46A inserted (S.) (1.4.2000) by 2000 asp 1, s. 26, Sch. 4 para. 13(3); S.S.I. 2000/10, art. 2(3)

47 Grants to the new Agencies.E+W+S

The appropriate Minister may, [F252in the case of the Agency only] with the approval of the Treasury, make to a new Agency grants of such amounts, and on such terms, as he thinks fit.

Textual Amendments

Modifications etc. (not altering text)

C31Ss. 47-52 functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 8 (with art. 24)

48 Borrowing powers.E+W

(1)Each new Agency shall be entitled to borrow in accordance with the following provisions of this section, but not otherwise.

(2)Subject to subsection (5) below, each new Agency may—

(a)with the consent of the appropriate Minister, and

(b)[F253in the case of the Agency only] with the approval of the Treasury,

borrow temporarily in sterling, by way of overdraft or otherwise, from persons other than the appropriate Ministers, such sums as it may require for meeting its obligations and carrying out its functions.

(3)Subject to subsection (5) below, each new Agency may borrow from the appropriate Minister, by way of temporary loan or otherwise, such sums in sterling as it may require for meeting its obligations and carrying out its functions.

(4)Any consent under subsection (2)(a) above may be granted subject to conditions.

(5)The aggregate amount outstanding in respect of the principal of sums borrowed under this section by a new Agency shall not at any time exceed—

(a)in the case of the Agency, £100 million or such greater sum, not exceeding £160 million, as the Ministers may by order specify; or

(b)in the case of SEPA, £5 million or such greater sum, not exceeding £10 million, as the Secretary of State may by order specify.

(6)The power to make an order under subsection (5) above shall be exercisable by statutory instrument; but no order shall be made under that subsection unless a draft of the order has been laid before, and approved by a resolution of, the House of Commons.

Extent Information

E2This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

Modifications etc. (not altering text)

C31Ss. 47-52 functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 8 (with art. 24)

48 Borrowing powers.S

(1)Each new Agency shall be entitled to borrow in accordance with the following provisions of this section, but not otherwise.

(2)Subject to [F776subsections (5) and (5A)] below, each new Agency may—

(a)with the consent of the appropriate Minister, and

(b)[F777in the case of the Agency only] with the approval of the Treasury,

borrow temporarily in sterling, by way of overdraft or otherwise, from persons other than the appropriate Ministers, such sums as it may require for meeting its obligations and carrying out its functions.

(3)Subject to [F776subsections (5) and (5A)] below, each new Agency may borrow from the appropriate Minister, by way of temporary loan or otherwise, such sums in sterling as it may require for meeting its obligations and carrying out its functions.

(4)Any consent under subsection (2)(a) above may be granted subject to conditions.

(5)The aggregate amount outstanding in respect of the principal of sums borrowed under this section by a new Agency shall not at any time exceed—

(a)in the case of the Agency, £100 million or such greater sum, not exceeding £160 million, as the Ministers may by order specify; F778. . .

F778(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F779(5A)In any financial year the net amount of sums borrowed by SEPA under this section shall not exceed the amount specified for that year for the purposes of this section in a Budget Act.

F779(5B)In subsection (5A) above, “net amount” means the amount of sums borrowed in the financial year less any repayments made during that year (otherwise than by way of interest) in respect of sums borrowed in that or any other year.]

(6)The power to make an order under subsection (5) above shall be exercisable by statutory instrument; but no order shall be made under that subsection unless a draft of the order has been laid before, and approved by a resolution of, the House of Commons.

Extent Information

E4This version of this provision extends to Scotland only; a separate version has been created for England and Wales only

Textual Amendments

F776Words in s. 48(2)(3) substituted (S.) (1.4.2000) by 2000 asp 1, s. 8, Sch. 1 para. 7(2)(a); S.S.I. 2000/10, art. 2(3)

F778S. 48(5)(b) and the preceding “or” repealed (S.) (1.4.2000) by 2000 asp 1, s. 8, Sch. 1 para. 7(2)(b); S.S.I. 2000/10, art. 2(3)

F779S. 48(5A)(5B) inserted (S.) (1.4.2000) by 2000 asp 1, s. 8, Sch. 1; S.S.I. 2000/10, art. 2(3)

Modifications etc. (not altering text)

C31Ss. 47-52 functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 8 (with art. 24)

49 Government loans to the new Agencies.E+W+S

(1)The appropriate Minister may, [F254in the case of the Agency only],with the approval of the Treasury, lend to a new Agency any sums which it has power to borrow under section 48(3) above.

(2)Any loan made under this section by one of the appropriate Ministers shall be repaid to him at such times and by such methods, and interest on the loan shall be paid to him at such rates and at such times, as that Minister may with the approval of the Treasury from time to time determine.

[F255(3)If in any financial year any of the appropriate Ministers lends any sums to a new Agency under this section, he shall—

(a)prepare in respect of that financial year an account of the sums so lent by him; and

(b)send that account to the Comptroller and Auditor General before the end of September in the following financial year;

and the form of the account and the manner of preparing it shall be such as the Treasury may direct.

(4)The Comptroller and Auditor General shall examine, certify and report on each account sent to him under this section and shall lay copies of it and of his report before each House of Parliament.

(5)The Treasury may issue to any of the appropriate Ministers—

(a)out of the National Loans Fund, or

(b)out of money provided by Parliament,

such sums as are necessary to enable him to make loans to a new Agency under this section; and any sums received by a Minister of the Crown in pursuance of subsection (2) above shall be paid into the National Loans Fund or, as the case may be, the Consolidated Fund.]

Textual Amendments

F255S. 49(3)-(5) cease to have effect so far as relating to the Scottish Environment Protection Agency (S.) (1.4.2000) by virtue of 2000 asp 1, s. 8, Sch. 1 para. 7(3); S.S.I. 2000/10, art. 2(3)

Modifications etc. (not altering text)

C31Ss. 47-52 functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 8 (with art. 24)

C32S. 49(1)(2): Treasury approval requirement continued (1.7.1999) by virtue of S.I. 1999/672, art. 2, Sch. 1

C33S. 49(3)(4) functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 10 (with arts. 24, 26)

50 Government guarantees of a new Agency’s borrowing.E+W+S

(1)The appropriate Minister may, [F256in the case of the Agency only] with the consent of the Treasury, guarantee, in such manner and on such conditions as he may think fit, the repayment of the principal of, the payment of interest on, and the discharge of any other financial obligation in connection with, any sum which a new Agency borrows from any person.

(2)A Minister who gives a guarantee under this section shall forthwith lay a statement of the guarantee before each House of Parliament.

(3)Where any sum is paid out for fulfilling a guarantee under this section, the Minister who gave the guarantee shall, as soon as reasonably practicable after the end of each financial year (beginning with that in which the sum is paid out and ending with that in which all liability in respect of the principal of the sum and in respect of interest on it is finally discharged), lay before each House of Parliament a statement relating to that sum.

(4)If any sums are paid out in fulfilment of a guarantee under this section, the new Agency which borrowed the sum by reference to which the guarantee was given shall make to the Minister who gave the guarantee, at such times and in such manner as he may from time to time direct,—

(a)payments of such amounts as he may so direct in or towards repayment of the sums so paid out; and

(b)payments of interest, at such rate as he may so direct, on what is outstanding for the time being in respect of sums so paid out;

and the consent of the Treasury shall be required for the giving of a direction under this subsection [F257in the case of the Agency only].

Textual Amendments

F256Words in s. 50(1) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 120(4); S.I. 1998/3178, art. 3

F257Words in s. 50(4) inserted (1.7.1999) by S.I. 1999/1820, arts. 1(2), 4, Sch. 2 Pt. I para. 120(6); S.I. 1998/3178, art. 3

Modifications etc. (not altering text)

C31Ss. 47-52 functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 8 (with art. 24)

InformationE+W+S

51 Provision of information by the new Agencies.E+W+S

(1)A new Agency shall furnish the appropriate Minister with all such information as he may reasonably require relating to—

(a)the new Agency’s property;

(b)the carrying out and proposed carrying out of its functions; and

(c)its responsibilities generally.

[F258(1A)Nothing in this section authorises the disclosure by SEPA of protected taxpayer information which was obtained by SEPA in connection with a function of Revenue Scotland delegated to it by Revenue Scotland under section 4(1)(b) of the Revenue Scotland and Tax Powers Act 2014 (asp 16).]

(2)Information required under this section shall be furnished in such form and manner, and be accompanied or supplemented by such explanations, as the appropriate Minister may reasonably require.

(3)The information which a new Agency may be required to furnish to the appropriate Minister under this section shall include information which, although it is not in the possession of the new Agency or would not otherwise come into the possession of the new Agency, is information which it is reasonable to require the new Agency to obtain.

(4)A requirement for the purposes of this section shall be contained in a direction which—

(a)may describe the information to be furnished in such manner as the Minister giving the direction considers appropriate; and

(b)may require the information to be furnished on a particular occasion, in particular circumstances or from time to time.

(5)For the purposes of this section a new Agency shall—

(a)permit any person authorised for the purpose by the appropriate Minister to inspect and make copies of the contents of any accounts or other records of the new Agency; and

(b)give such explanation of them as that person or the appropriate Minister may reasonably require.

[F259(6)In subsection (1A), “protected taxpayer information” has the meaning given by section 14 of the Revenue Scotland and Tax Powers Act 2014 (asp 16).]

Textual Amendments

Modifications etc. (not altering text)

C31Ss. 47-52 functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 8 (with art. 24)

52 Annual report.E+W+S

(1)As soon as reasonably practicable after the end of each financial year, each new Agency shall prepare a report on its activities during that year and shall send a copy of that report to each of the appropriate Ministers.

(2)Every such report shall set out any directions under section 40 above which have been given to the new Agency in question during the year to which the report relates, other than directions given under subsection (1) of that section which are identified to that new Agency in writing by the appropriate Minister as being directions the disclosure of which would, in his opinion, be contrary to the interests of national security.

(3)The Secretary of State shall lay a copy of every such report before each House of Parliament and shall arrange for copies of every such report to be published in such manner as he considers appropriate.

(4)A new Agency’s annual report shall be in such form and contain such information as may be specified in any direction given to the new Agency by the appropriate Ministers.

Modifications etc. (not altering text)

C31Ss. 47-52 functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 8 (with art. 24)

C34S. 52(1) modified (30.6.1999) by S.I. 1999/1746, arts. 1(1), 10(1); S.I. 1998/3178, art. 3

S. 52(1) modified (1.7.1999) by S.I. 1999/672, art. 2, Sch. 1

Supplemental provisionsE+W+S

53 Inquiries and other hearings.E+W+S

(1)Without prejudice to any other provision of this Act or any other enactment by virtue of which an inquiry or other hearing is authorised or required to be held, the appropriate Minister may cause an inquiry or other hearing to be held if it appears to him expedient to do so—

(a)in connection with any of the functions of a new Agency; or

(b)in connection with any of his functions in relation to a new Agency.

[F260(1A)Without prejudice to any other provision of this Act or any other enactment by virtue of which an inquiry or other hearing is authorised or required to be held, the Welsh Ministers may cause an inquiry or other hearing to be held if it appears to them expedient to do so—

(a)in connection with any of the relevant environmental functions of the Natural Resources Body for Wales; or

(b)in connection with any of their functions in relation to the relevant environmental functions of that Body.]

(2)Subsections (2) to (5) of section 250 of the M55Local Government Act 1972 (which contain supplementary provisions with respect to local inquiries held in pursuance of that section) shall apply to inquiries or other hearings under this section or any other enactment—

(a)in connection with any of the functions of the Agency [F261or any of the relevant environmental functions of the Natural Resources Body for Wales], or

(b)in connection with any functions of the Secretary of State or the Minister in relation to the Agency [F262or any functions of the Welsh Ministers in relation to the relevant environmental functions of the Natural Resources Body for Wales],

as they apply to inquiries under that section, but taking the reference in subsection (4) of that section to a local authority as including a reference to the Agency [F263or, as the case may be, the Natural Resources Body for Wales].

(3)The provisions of subsections (2) to (8) of section 210 of the M56Local Government (Scotland) Act 1973 (which relate to the holding of local inquiries) shall apply to inquiries or other hearings held under this section or any other enactment—

(a)in connection with any of the functions of SEPA, or

(b)in connection with any functions of the Secretary of State in relation to SEPA,

as they apply to inquiries held under that section.

[F264(4)In subsections (1) and (3) above, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.]

[F265(4)In this section, “relevant environmental functions” means—

(a)pollution control functions (within the meaning of section 5); and

(b)any functions relating to water resources, flood and coastal erosion risk management or fisheries.]

Textual Amendments

Modifications etc. (not altering text)

C35S. 53(1)(a): transfer of functions (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 9(2) (with art. 24)

C36S. 53(1)(b) functions cease to be exercisable (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 9(1) (with art. 24)

C37S. 53(2): transfer of functions (with effect in accordance with art. 1(3) of the amending S.I.) by The Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821), arts. 1(2), 9(2) (with art. 24)

Marginal Citations

54 Appearance in legal proceedings.E+W+S

In England and Wales, a person who is authorised by the Agency to prosecute on its behalf in proceedings before a magistrates’ court shall be entitled to prosecute in any such proceedings F266....

Textual Amendments

55 Continuity of exercise of functions: the new Agencies.E+W+S

(1)The abolition of—

(a)the National Rivers Authority,

(b)the London Waste Regulation Authority, or

(c)a river purification board,

shall not affect the validity of anything done by that Authority or board before the transfer date.

(2)Anything which, at the transfer date, is in the process of being done by or in relation to a transferor in the exercise of, or in connection with, any of the transferred functions may be continued by or in relation to the transferee.

(3)Anything done by or in relation to a transferor before the transfer date in the exercise of, or otherwise in connection with, any of the transferred functions, shall, so far as is required for continuing its effect on and after that date, have effect as if done by or in relation to the transferee.

(4)Subsection (3) above applies in particular to—

(a)any decision, determination, declaration, designation, agreement or instrument made by a transferor;

(b)any regulations or byelaws made by a transferor;

(c)any licence, permission, consent, approval, authorisation, exemption, dispensation or relaxation granted by or to a transferor;

(d)any notice, direction or certificate given by or to a transferor;

(e)any application, request, proposal or objection made by or to a transferor;

(f)any condition or requirement imposed by or on a transferor;

(g)any fee or charge paid by or to a transferor;

(h)any appeal allowed by or in favour of or against a transferor;

(j)any proceedings instituted by or against a transferor.

(5)Any reference in the foregoing provisions of this section to anything done by or in relation to a transferor includes a reference to anything which, by virtue of any enactment, is treated as having been done by or in relation to that transferor.

(6)Any reference to a transferor in any document constituting or relating to anything to which the foregoing provisions of this section apply shall, so far as is required for giving effect to those provisions, be construed as a reference to the transferee.

(7)The foregoing provisions of this section—

(a)are without prejudice to any provision made by this Act in relation to any particular functions; and

(b)shall not be construed as continuing in force any contract of employment made by a transferor;

and the Secretary of State may, in relation to any particular functions, by order exclude, modify or supplement any of the foregoing provisions of this section or make such other transitional provisions as he thinks necessary or expedient.

(8)Where, by virtue of any provision of Schedule 15 to this Act, the Minister is the transferor in the case of any functions, he shall have the same powers under subsection (7) above in relation to those functions as the Secretary of State.

(9)The power to make an order under subsection (7) above shall be exercisable by statutory instrument; and any statutory instrument containing such an order shall be subject to annulment pursuant to a resolution of either House of Parliament.

(10)In this section—

  • the transferee”, in the case of any transferred functions, means the new Agency whose functions they become by virtue of any provision made by or under this Act;

  • transferred functions” means any functions which, by virtue of any provision made by or under this Act, become functions of a new Agency; and

  • transferor” means any body or person any or all of whose functions become, by virtue of any provision made by or under this Act, functions of a new Agency.

Commencement Information

I5S. 55 wholly in force at 1.4.1996; s. 55 not in force at Royal Assent see s. 125(3); s. 55(7)-(10) in force at 1.2.1996 by S.I. 1996/186, art 2; s. 55(1)-(6) in force at 1.4.1996 by S.I. 1996/186, art 3

56 Interpretation of Part I.E+W+S

(1)In this Part of this Act, except where the context otherwise requires—

  • F267...

  • the 1990 Act” means the M57Environmental Protection Act 1990;

  • the 1991 Act” means the M58Water Resources Act 1991;

  • [F268“appropriate agency” means the Agency or the Natural Resources Body for Wales;]

  • the appropriate Minister”—

    (a)

    in the case of the Agency, means the Secretary of State or the Minister; and

    (b)

    in the case of SEPA, means the Secretary of State;

  • the appropriate Ministers”—

    (a)

    in the case of the Agency, means the Secretary of State and the Minister; and

    (b)

    in the case of SEPA, means the Secretary of State;

  • [F268“the appropriate national authority” means—

    (a)

    in relation to the Agency, the Secretary of State;

    (b)

    in relation to the Natural Resources Body for Wales, the Welsh Ministers;]

  • [F269the catchment areas of the rivers Dee, Wye and Severn” has the meaning given by article 1(3) of the National Assembly for Wales (Transfer of Functions) Order 1999;]

  • conservancy authority” has the meaning given by section 221(1) of the 1991 Act;

  • costs” includes—

    (a)

    costs to any person; and

    (b)

    costs to the environment;

  • disposal authority”—

    (a)

    in the application of this Part in relation to the Agency, has the same meaning as it has in Part I of the M59Control of Pollution Act 1974 by virtue of section 30(1) of that Act; and

    (b)

    [F270in the application of this Part in relation to SEPA, has the meaning assigned to it by section 30(2) of that Act;]

  • [F271the environment” means all, or any, of the following media, namely, the air, water and land (and the medium of air includes the air within buildings and the air within other natural or man-made structures above or below ground); ]

  • environmental licence”, in the application of this Part in relation to [F272an appropriate agency], means any of the following—

    (a)

    registration of a person as a carrier of controlled waste under section 2 of the M60Control of Pollution (Amendment) Act 1989,

    (aa)

    [F273a permit granted by the appropriate agency under—

    (i)

    regulations made under section 2 of the Pollution Prevention and Control Act 1999, other than regulations made for the purpose of implementing the EUETS Directive,

    (ii)

    regulations made under section 61 of the Water Act 2014.]

    (b)

    [F274an authorisation under Part I of the 1990 Act, other than any such authorisation granted by a local enforcing authority,]

    (c)

    F275...

    (d)

    a licence under Chapter II of Part II of the 1991 Act,

    (e)

    F276...

    (f)

    F276...

    (g)

    F276...

    (h)

    [F277registration of a person as a broker of or dealer in controlled waste under any provision which gives effect in England and Wales to Article 26(b) of Directive 2008/98/EC of the European Parliament and of the Council on waste,]

    (j)

    [F278registration under Schedule 2 to the Environmental Permitting (England and Wales) Regulations 2007 of an establishment or undertaking in relation to a WEEE operation (as defined by paragraph 1 of Schedule 2 to those Regulations),]

    (k)

    F279...

    (l)

    [F280approval of a scheme under regulation 55 of the Waste Electrical and Electronic Regulations 2013 (“the WEEE Regulations”). ]

    (m)

    [F281compliance with the condition in regulation 57(f)(i) of the WEEE Regulations in relation to a scheme mentioned in paragraph (l).]

    (n)

    [F282approval of an authorised treatment facility or exporter under regulation 61 of the WEEE Regulations. ]

    (o)

    [F283extension of approval of an exporter under regulation 62 of the WEEE Regulations. ]

    so far as having effect in relation to England and Wales;

  • environmental licence”, in the application of this Part in relation to SEPA, means any of the following—

    (a)

    F284...

    (aa)

    [F285a permit granted by SEPA under regulations under section 2 of the Pollution Prevention and Control Act 1999 [F286, other than regulations made for the purpose of implementing the EU ETS Directive]],

    (ab)

    [F287an authorisation under regulations under section 18 of the Regulatory Reform (Scotland) Act 2014,]

    (b)

    registration of a person as a carrier of controlled waste under section 2 of the M61Control of Pollution (Amendment) Act 1989 [F288or as a professional collector or transporter of waste under paragraph 12 of Schedule 4 to the Waste Management Licensing (Scotland) Regulations 2011],

    (c)

    [F274an authorisation under Part I of the 1990 Act,]

    (d)

    a waste management licence under Part II of that Act,

    (e)

    F276F284...

    (f)

    F276...

    (g)

    F276...

    (h)

    [F289registration of a person as a broker of, or dealer in, controlled waste under the Waste Management Licensing (Scotland) Regulations 2011,]

    (j)

    [F290registration in respect of an activity falling within paragraph 7, 8(2), 9, 10, 12, 19, 42, 45(1) or (2), 46 [F291 , 47 or 51 of Schedule 1] to those Regulations, except where the waste which is the subject of the activity consists of agricultural waste within the meaning of those Regulations,]

    (ja)

    [F292registration in respect of an activity falling within paragraph 17, 18, 36 or 39 of Schedule 3 to those Regulations, where the waste which is the subject of the activity consists of or includes waste batteries or accumulators to which Directive 2006/66/EC of the European Parliament and of the Council on batteries and accumulators applies, and those batteries or accumulators have been collected in accordance with Article 8 of that Directive,]

    (k)

    F279...

    (l)

    [F293approval of a scheme under regulation 55 of the Waste Electrical and Electronic Regulations 2013 (“the WEEE Regulations”). ]

    (m)

    [F294compliance with the condition in regulation 57(f)(i) of the WEEE Regulations in relation to a scheme mentioned in paragraph (l). ]

    (n)

    [F295approval of an authorised treatment facility or exporter under regulation 61 of the WEEE Regulations.]

    (o)

    [F296extension of approval of an exporter under regulation 62 of the WEEE Regulations.]

    so far as having effect in relation to Scotland;

  • flood defence functions”, in relation to [F272an appropriate agency], has the same meaning as in the 1991 Act;

  • harbour authority” has the meaning given by section 221(1) of the 1991 Act;

  • local authority”, in the application of this Part in relation to SEPA, means a district or islands council in Scotland;

  • the Minister” means the Minister of Agriculture, Fisheries and Food;

  • the Ministers” means the Secretary of State and the Minister;

  • navigation authority” has the meaning given by section 221(1) of the 1991 Act;

  • new Agency” means the Agency or SEPA;

  • river purification authority” means a river purification authority within the meaning of the 1951 Act;

  • river purification board” means a river purification board established by virtue of section 135 of the M62Local Government (Scotland) Act 1973;

  • the transfer date” means such date as the Secretary of State may by order made by statutory instrument appoint as the transfer date for the purposes of this Part; and different dates may be appointed for the purposes of this Part—

    (i)

    as it applies for or in connection with transfers under or by virtue of Chapter I above, and

    (ii)

    as it applies for or in connection with transfers under or by virtue of Chapter II above;

  • waste regulation authority”—

    (a)

    in the application of this Part in relation to the Agency, means any authority in England or Wales which, by virtue of section 30(1) of the 1990 Act, is a waste regulation authority for the purposes of Part II of that Act; and

    (b)

    in the application of this Part in relation to SEPA, means any council which, by virtue of section 30(1)(g) of the 1990 Act, is a waste regulation authority for the purposes of Part II of that Act.

(2)In relation to any time on or after 1st April 1996—

(a)subsection (1) above shall have effect as if, in the definition of “local authority”, for the words “district or islands council in Scotland” there were substituted the words “ council constituted under section 2 of the M63Local Government etc. (Scotland) Act 1994 ”; and

(b)in section 22(3)(a)(iv) above the reference to an islands council shall be construed as a reference to a council mentioned in section 3(1) of the Local Government etc. (Scotland) Act 1994.

(3)Where by virtue of any provision of this Part any function of a Minister of the Crown is exercisable concurrently by different Ministers, that function shall also be exercisable jointly by any two or more of those Ministers.

Textual Amendments

F271 Definition of “the environment” in s. 56(1) substituted (21.3.2000 (E.W.) and 29.9.2000 (S.)) by 1999 c. 24, s. 6(1), Sch. 2 para. 17; S.I. 2000/800, art. 2; S.S.I. 2000/322, art. 2

F285S. 56(1): para. (aa) in the definition of “environmental licence” in relation to SEPA inserted (S.) (28.9.2000) by S.S.I. 2000/323, regs. 1(1), 36, Sch. 10 para. 5(2)

F288Words in s. 56(1) inserted (S.) (27.3.2011) by The Waste (Scotland) Regulations 2011 (S.S.I. 2011/226), regs. 1(1), 3(2)(a)

F289Words in s. 56(1) substituted (S.) (27.3.2011) by The Waste (Scotland) Regulations 2011 (S.S.I. 2011/226), regs. 1(1), 3(2)(b)

F291Words in s. 56(1) substituted (S.) (27.3.2011) by The Waste (Scotland) Regulations 2011 (S.S.I. 2011/226), regs. 1(1), 3(2)(c)

Marginal Citations

Part IIE+W+S Contaminated Land and Abandoned Mines

57 Contaminated land.E+W+S

After section 78 of the M64Environmental Protection Act 1990 there shall be inserted—

Part IIAE+W+S Contaminated Land

78A Preliminary.

(1)The following provisions have effect for the interpretation of this Part.

(2)Contaminated land” is any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that—

(a)significant harm is being caused or there is a significant possibility of such harm being caused; or

(b)pollution of controlled waters is being, or is likely to be, caused;

and, in determining whether any land appears to be such land, a local authority shall, subject to subsection (5) below, act in accordance with guidance issued by the Secretary of State in accordance with section 78YA below with respect to the manner in which that determination is to be made.

(3)A “special site” is any contaminated land—

(a)which has been designated as such a site by virtue of section 78C(7) or 78D(6) below; and

(b)whose designation as such has not been terminated by the appropriate Agency under section 78Q(4) below.

(4)Harm” means harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property.

(5)The questions—

(a)what harm is to be regarded as “significant”,

(b)whether the possibility of significant harm being caused is “significant”,

(c)whether pollution of controlled waters is being, or is likely to be caused,

shall be determined in accordance with guidance issued for the purpose by the Secretary of State in accordance with section 78YA below.

(6)Without prejudice to the guidance that may be issued under subsection (5) above, guidance under paragraph (a) of that subsection may make provision for different degrees of importance to be assigned to, or for the disregard of,—

(a)different descriptions of living organisms or ecological systems;

(b)different descriptions of places; or

(c)different descriptions of harm to health or property, or other interference;

and guidance under paragraph (b) of that subsection may make provision for different degrees of possibility to be regarded as “significant” (or as not being “significant”) in relation to different descriptions of significant harm.

(7)Remediation” means—

(a)the doing of anything for the purpose of assessing the condition of—

(i)the contaminated land in question;

(ii)any controlled waters affected by that land; or

(iii)any land adjoining or adjacent to that land;

(b)the doing of any works, the carrying out of any operations or the taking of any steps in relation to any such land or waters for the purpose—

(i)of preventing or minimising, or remedying or mitigating the effects of, any significant harm, or any pollution of controlled waters, by reason of which the contaminated land is such land; or

(ii)of restoring the land or waters to their former state; or

(c)the making of subsequent inspections from time to time for the purpose of keeping under review the condition of the land or waters;

and cognate expressions shall be construed accordingly.

(8)Controlled waters are “affected by” contaminated land if (and only if) it appears to the enforcing authority that the contaminated land in question is, for the purposes of subsection (2) above, in such a condition, by reason of substances in, on or under the land, that pollution of those waters is being, or is likely to be caused.

(9)The following expressions have the meaning respectively assigned to them—

  • the appropriate Agency” means—

    (a)

    in relation to England and Wales, the Environment Agency;

    (b)

    in relation to Scotland, the Scottish Environment Protection Agency;

  • appropriate person” means any person who is an appropriate person, determined in accordance with section 78F below, to bear responsibility for any thing which is to be done by way of remediation in any particular case;

  • charging notice” has the meaning given by section 78P(3)(b) below;

  • controlled waters”—

    (a)

    in relation to England and Wales, has the same meaning as in Part III of the M65Water Resources Act 1991; and

    (b)

    in relation to Scotland, has the same meaning as in section 30A of the M66Control of Pollution Act 1974;

  • creditor” has the same meaning as in the M67Conveyancing and Feudal Reform (Scotland) Act 1970;

  • enforcing authority” means—

    (a)

    in relation to a special site, the appropriate Agency;

    (b)

    in relation to contaminated land other than a special site, the local authority in whose area the land is situated;

  • heritable security” has the same meaning as in the M68Conveyancing and Feudal Reform (Scotland) Act 1970;

  • local authority” in relation to England and Wales means—

    (a)

    any unitary authority;

    (b)

    any district council, so far as it is not a unitary authority;

    (c)

    the Common Council of the City of London and, as respects the Temples, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple respectively;

    and in relation to Scotland means a council for an area constituted under section 2 of the M69Local Government etc. (Scotland) Act 1994;

  • notice” means notice in writing;

  • notification” means notification in writing;

  • owner”, in relation to any land in England and Wales, means a person (other than a mortgagee not in possession) who, whether in his own right or as trustee for any other person, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let;

  • owner”, in relation to any land in Scotland, means a person (other than a creditor in a heritable security not in possession of the security subjects) for the time being entitled to receive or who would, if the land were let, be entitled to receive, the rents of the land in connection with which the word is used and includes a trustee, factor, guardian or curator and in the case of public or municipal land includes the persons to whom the management of the land is entrusted;

  • pollution of controlled waters” means the entry into controlled waters of any poisonous, noxious or polluting matter or any solid waste matter;

  • prescribed” means prescribed by regulations;

  • regulations” means regulations made by the Secretary of State;

  • remediation declaration” has the meaning given by section 78H(6) below;

  • remediation notice” has the meaning given by section 78E(1) below;

  • remediation statement” has the meaning given by section 78H(7) below;

  • required to be designated as a special site” shall be construed in accordance with section 78C(8) below;

  • substance” means any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour;

  • unitary authority” means—

    (a)

    the council of a county, so far as it is the council of an area for which there are no district councils;

    (b)

    the council of any district comprised in an area for which there is no county council;

    (c)

    the council of a London borough;

    (d)

    the council of a county borough in Wales.

78B Identification of contaminated land.

(1)Every local authority shall cause its area to be inspected from time to time for the purpose—

(a)of identifying contaminated land; and

(b)of enabling the authority to decide whether any such land is land which is required to be designated as a special site.

(2)In performing its functions under subsection (1) above a local authority shall act in accordance with any guidance issued for the purpose by the Secretary of State in accordance with section 78YA below.

(3)If a local authority identifies any contaminated land in its area, it shall give notice of that fact to—

(a)the appropriate Agency;

(b)the owner of the land;

(c)any person who appears to the authority to be in occupation of the whole or any part of the land; and

(d)each person who appears to the authority to be an appropriate person;

and any notice given under this subsection shall state by virtue of which of paragraphs (a) to (d) above it is given.

(4)If, at any time after a local authority has given any person a notice pursuant to subsection (3)(d) above in respect of any land, it appears to the enforcing authority that another person is an appropriate person, the enforcing authority shall give notice to that other person—

(a)of the fact that the local authority has identified the land in question as contaminated land; and

(b)that he appears to the enforcing authority to be an appropriate person.

78C Identification and designation of special sites.

(1)If at any time it appears to a local authority that any contaminated land in its area might be land which is required to be designated as a special site, the authority—

(a)shall decide whether or not the land is land which is required to be so designated; and

(b)if the authority decides that the land is land which is required to be so designated, shall give notice of that decision to the relevant persons.

(2)For the purposes of this section, “the relevant persons” at any time in the case of any land are the persons who at that time fall within paragraphs (a) to (d) below, that is to say—

(a)the appropriate Agency;

(b)the owner of the land;

(c)any person who appears to the local authority concerned to be in occupation of the whole or any part of the land; and

(d)each person who appears to that authority to be an appropriate person.

(3)Before making a decision under paragraph (a) of subsection (1) above in any particular case, a local authority shall request the advice of the appropriate Agency, and in making its decision shall have regard to any advice given by that Agency in response to the request.

(4)If at any time the appropriate Agency considers that any contaminated land is land which is required to be designated as a special site, that Agency may give notice of that fact to the local authority in whose area the land is situated.

(5)Where notice under subsection (4) above is given to a local authority, the authority shall decide whether the land in question—

(a)is land which is required to be designated as a special site, or

(b)is not land which is required to be so designated,

and shall give notice of that decision to the relevant persons.

(6)Where a local authority makes a decision falling within subsection (1)(b) or (5)(a) above, the decision shall, subject to section 78D below, take effect on the day after whichever of the following events first occurs, that is to say—

(a)the expiration of the period of twenty-one days beginning with the day on which the notice required by virtue of subsection (1)(b) or, as the case may be, (5)(a) above is given to the appropriate Agency; or

(b)if the appropriate Agency gives notification to the local authority in question that it agrees with the decision, the giving of that notification;

and where a decision takes effect by virtue of this subsection, the local authority shall give notice of that fact to the relevant persons.

(7)Where a decision that any land is land which is required to be designated as a special site takes effect in accordance with subsection (6) above, the notice given under subsection (1)(b) or, as the case may be, (5)(a) above shall have effect, as from the time when the decision takes effect, as the designation of that land as such a site.

(8)For the purposes of this Part, land is required to be designated as a special site if, and only if, it is land of a description prescribed for the purposes of this subsection.

(9)Regulations under subsection (8) above may make different provision for different cases or circumstances or different areas or localities and may, in particular, describe land by reference to the area or locality in which it is situated.

(10)Without prejudice to the generality of his power to prescribe any description of land for the purposes of subsection (8) above, the Secretary of State, in deciding whether to prescribe a particular description of contaminated land for those purposes, may, in particular, have regard to—

(a)whether land of the description in question appears to him to be land which is likely to be in such a condition, by reason of substances in, on or under the land that—

(i)serious harm would or might be caused, or

(ii)serious pollution of controlled waters would be, or would be likely to be, caused; or

(b)whether the appropriate Agency is likely to have expertise in dealing with the kind of significant harm, or pollution of controlled waters, by reason of which land of the description in question is contaminated land.

78D Referral of special site decisions to the Secretary of State.

(1)In any case where—

(a)a local authority gives notice of a decision to the appropriate Agency pursuant to subsection (1)(b) or (5)(b) of section 78C above, but

(b)before the expiration of the period of twenty-one days beginning with the day on which that notice is so given, that Agency gives the local authority notice that it disagrees with the decision, together with a statement of its reasons for disagreeing,

the authority shall refer the decision to the Secretary of State and shall send to him a statement of its reasons for reaching the decision.

(2)Where the appropriate Agency gives notice to a local authority under paragraph (b) of subsection (1) above, it shall also send to the Secretary of State a copy of the notice and of the statement given under that paragraph.

(3)Where a local authority refers a decision to the Secretary of State under subsection (1) above, it shall give notice of that fact to the relevant persons.

(4)Where a decision of a local authority is referred to the Secretary of State under subsection (1) above, he—

(a)may confirm or reverse the decision with respect to the whole or any part of the land to which it relates; and

(b)shall give notice of his decision on the referral—

(i)to the relevant persons; and

(ii)to the local authority.

(5)Where a decision of a local authority is referred to the Secretary of State under subsection (1) above, the decision shall not take effect until the day after that on which the Secretary of State gives the notice required by subsection (4) above to the persons there mentioned and shall then take effect as confirmed or reversed by him.

(6)Where a decision which takes effect in accordance with subsection (5) above is to the effect that at least some land is land which is required to be designated as a special site, the notice given under subsection (4)(b) above shall have effect, as from the time when the decision takes effect, as the designation of that land as such a site.

(7)In this section “the relevant persons” has the same meaning as in section 78C above.

78E Duty of enforcing authority to require remediation of contaminated land etc.

(1)In any case where—

(a)any land has been designated as a special site by virtue of section 78C(7) or 78D(6) above, or

(b)a local authority has identified any contaminated land (other than a special site) in its area,

the enforcing authority shall, in accordance with such procedure as may be prescribed and subject to the following provisions of this Part, serve on each person who is an appropriate person a notice (in this Part referred to as a “remediation notice”) specifying what that person is to do by way of remediation and the periods within which he is required to do each of the things so specified.

(2)Different remediation notices requiring the doing of different things by way of remediation may be served on different persons in consequence of the presence of different substances in, on or under any land or waters.

(3)Where two or more persons are appropriate persons in relation to any particular thing which is to be done by way of remediation, the remediation notice served on each of them shall state the proportion, determined under section 78F(7) below, of the cost of doing that thing which each of them respectively is liable to bear.

(4)The only things by way of remediation which the enforcing authority may do, or require to be done, under or by virtue of this Part are things which it considers reasonable, having regard to—

(a)the cost which is likely to be involved; and

(b)the seriousness of the harm, or pollution of controlled waters, in question.

(5)In determining for any purpose of this Part—

(a)what is to be done (whether by an appropriate person, the enforcing authority or any other person) by way of remediation in any particular case,

(b)the standard to which any land is, or waters are, to be remediated pursuant to the notice, or

(c)what is, or is not, to be regarded as reasonable for the purposes of subsection (4) above,

the enforcing authority shall have regard to any guidance issued for the purpose by the Secretary of State.

(6)Regulations may make provision for or in connection with—

(a)the form or content of remediation notices; or

(b)any steps of a procedural nature which are to be taken in connection with, or in consequence of, the service of a remediation notice.

78F Determination of the appropriate person to bear responsibility for remediation.

(1)This section has effect for the purpose of determining who is the appropriate person to bear responsibility for any particular thing which the enforcing authority determines is to be done by way of remediation in any particular case.

(2)Subject to the following provisions of this section, any person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land is an appropriate person.

(3)A person shall only be an appropriate person by virtue of subsection (2) above in relation to things which are to be done by way of remediation which are to any extent referable to substances which he caused or knowingly permitted to be present in, on or under the contaminated land in question.

(4)If no person has, after reasonable inquiry, been found who is by virtue of subsection (2) above an appropriate person to bear responsibility for the things which are to be done by way of remediation, the owner or occupier for the time being of the contaminated land in question is an appropriate person.

(5)If, in consequence of subsection (3) above, there are things which are to be done by way of remediation in relation to which no person has, after reasonable inquiry, been found who is an appropriate person by virtue of subsection (2) above, the owner or occupier for the time being of the contaminated land in question is an appropriate person in relation to those things.

(6)Where two or more persons would, apart from this subsection, be appropriate persons in relation to any particular thing which is to be done by way of remediation, the enforcing authority shall determine in accordance with guidance issued for the purpose by the Secretary of State whether any, and if so which, of them is to be treated as not being an appropriate person in relation to that thing.

(7)Where two or more persons are appropriate persons in relation to any particular thing which is to be done by way of remediation, they shall be liable to bear the cost of doing that thing in proportions determined by the enforcing authority in accordance with guidance issued for the purpose by the Secretary of State.

(8)Any guidance issued for the purposes of subsection (6) or (7) above shall be issued in accordance with section 78YA below.

(9)A person who has caused or knowingly permitted any substance (“substance A”) to be in, on or under any land shall also be taken for the purposes of this section to have caused or knowingly permitted there to be in, on or under that land any substance which is there as a result of a chemical reaction or biological process affecting substance A.

(10)A thing which is to be done by way of remediation may be regarded for the purposes of this Part as referable to the presence of any substance notwithstanding that the thing in question would not have to be done—

(a)in consequence only of the presence of that substance in any quantity; or

(b)in consequence only of the quantity of that substance which any particular person caused or knowingly permitted to be present.

78G Grant of, and compensation for, rights of entry etc.

(1)A remediation notice may require an appropriate person to do things by way of remediation, notwithstanding that he is not entitled to do those things.

(2)Any person whose consent is required before any thing required by a remediation notice may be done shall grant, or join in granting, such rights in relation to any of the relevant land or waters as will enable the appropriate person to comply with any requirements imposed by the remediation notice.

(3)Before serving a remediation notice, the enforcing authority shall reasonably endeavour to consult every person who appears to the authority—

(a)to be the owner or occupier of any of the relevant land or waters, 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)Subsection (3) above shall not preclude the service of a remediation notice in any case where it appears to the enforcing authority that the contaminated land in question is in such a condition, by reason of substances in, on or under the land, that there is imminent danger of serious harm, or serious pollution of controlled waters, being caused.

(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 appropriate person 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 above in relation to compensation under that section.

(7)In this section, “relevant land or waters” means—

(a)the contaminated land in question;

(b)any controlled waters affected by that land; or

(c)any land adjoining or adjacent to that land or those waters.

78H Restrictions and prohibitions on serving remediation notices.

(1)Before serving a remediation notice, the enforcing authority shall reasonably endeavour to consult—

(a)the person on whom the notice is to be served,

(b)the owner of any land to which the notice relates,

(c)any person who appears to that authority to be in occupation of the whole or any part of the land, and

(d)any person of such other description as may be prescribed,

concerning what is to be done by way of remediation.

(2)Regulations may make provision for, or in connection with, steps to be taken for the purposes of subsection (1) above.

(3)No remediation notice shall be served on any person by reference to any contaminated land during any of the following periods, that is to say—

(a)the period—

(i)beginning with the identification of the contaminated land in question pursuant to section 78B(1) above, and

(ii)ending with the expiration of the period of three months beginning with the day on which the notice required by subsection (3)(d) or, as the case may be, (4) of section 78B above is given to that person in respect of that land;

(b)if a decision falling within paragraph (b) of section 78C(1) above is made in relation to the contaminated land in question, the period beginning with the making of the decision and ending with the expiration of the period of three months beginning with—

(i)in a case where the decision is not referred to the Secretary of State under section 78D above, the day on which the notice required by section 78C(6) above is given, or

(ii)in a case where the decision is referred to the Secretary of State under section 78D above, the day on which he gives the notice required by subsection (4)(b) of that section;

(c)if the appropriate Agency gives a notice under subsection (4) of section 78C above to a local authority in relation to the contaminated land in question, the period beginning with the day on which that notice is given and ending with the expiration of the period of three months beginning with—

(i)in a case where notice is given under subsection (6) of that section, the day on which that notice is given;

(ii)in a case where the authority makes a decision falling within subsection (5)(b) of that section and the appropriate Agency fails to give notice under paragraph (b) of section 78D(1) above, the day following the expiration of the period of twenty-one days mentioned in that paragraph; or

(iii)in a case where the authority makes a decision falling within section 78C(5)(b) above which is referred to the Secretary of State under section 78D above, the day on which the Secretary of State gives the notice required by subsection (4)(b) of that section.

(4)Neither subsection (1) nor subsection (3) above shall preclude the service of a remediation notice in any case where it appears to the enforcing authority that the land in question is in such a condition, by reason of substances in, on or under the land, that there is imminent danger of serious harm, or serious pollution of controlled waters, being caused.

(5)The enforcing authority shall not serve a remediation notice on a person if and so long as any one or more of the following conditions is for the time being satisfied in the particular case, that is to say—

(a)the authority is satisfied, in consequence of section 78E(4) and (5) above, that there is nothing by way of remediation which could be specified in a remediation notice served on that person;

(b)the authority is satisfied that appropriate things are being, or will be, done by way of remediation without the service of a remediation notice on that person;

(c)it appears to the authority that the person on whom the notice would be served is the authority itself; or

(d)the authority is satisfied that the powers conferred on it by section 78N below to do what is appropriate by way of remediation are exercisable.

(6)Where the enforcing authority is precluded by virtue of section 78E(4) or (5) above from specifying in a remediation notice any particular thing by way of remediation which it would otherwise have specified in such a notice, the authority shall prepare and publish a document (in this Part referred to as a “remediation declaration”) which shall record—

(a)the reasons why the authority would have specified that thing; and

(b)the grounds on which the authority is satisfied that it is precluded from specifying that thing in such a notice.

(7)In any case where the enforcing authority is precluded, by virtue of paragraph (b), (c) or (d) of subsection (5) above, from serving a remediation notice, the responsible person shall prepare and publish a document (in this Part referred to as a “remediation statement”) which shall record—

(a)the things which are being, have been, or are expected to be, done by way of remediation in the particular case;

(b)the name and address of the person who is doing, has done, or is expected to do, each of those things; and

(c)the periods within which each of those things is being, or is expected to be, done.

(8)For the purposes of subsection (7) above, the “responsible person” is—

(a)in a case where the condition in paragraph (b) of subsection (5) above is satisfied, the person who is doing or has done, or who the enforcing authority is satisfied will do, the things there mentioned; or

(b)in a case where the condition in paragraph (c) or (d) of that subsection is satisfied, the enforcing authority.

(9)If a person who is required by virtue of subsection (8)(a) above to prepare and publish a remediation statement fails to do so within a reasonable time after the date on which a remediation notice specifying the things there mentioned could, apart from subsection (5) above, have been served, the enforcing authority may itself prepare and publish the statement and may recover its reasonable costs of doing so from that person.

(10)Where the enforcing authority has been precluded by virtue only of subsection (5) above from serving a remediation notice on an appropriate person but—

(a)none of the conditions in that subsection is for the time being satisfied in the particular case, and

(b)the authority is not precluded by any other provision of this Part from serving a remediation notice on that appropriate person,

the authority shall serve a remediation notice on that person; and any such notice may be so served without any further endeavours by the authority to consult persons pursuant to subsection (1) above, if and to the extent that that person has been consulted pursuant to that subsection concerning the things which will be specified in the notice.

78J Restrictions on liability relating to the pollution of controlled waters.

(1)This section applies where any land is contaminated land by virtue of paragraph (b) of subsection (2) of section 78A above (whether or not the land is also contaminated land by virtue of paragraph (a) of that subsection).

(2)Where this section applies, no remediation notice given in consequence of the land in question being contaminated land shall require a person who is an appropriate person by virtue of section 78F(4) or (5) above to do anything by way of remediation to that or any other land, or any waters, which he could not have been required to do by such a notice had paragraph (b) of section 78A(2) above (and all other references to pollution of controlled waters) been omitted from this Part.

(3)If, in a case where this section applies, a person permits, has permitted, or might permit, water from an abandoned mine or part of a mine—

(a)to enter any controlled waters, or

(b)to reach a place from which it is or, as the case may be, was likely, in the opinion of the enforcing authority, to enter such waters,

no remediation notice shall require him in consequence to do anything by way of remediation (whether to the contaminated land in question or to any other land or waters) which he could not have been required to do by such a notice had paragraph (b) of section 78A(2) above (and all other references to pollution of controlled waters) been omitted from this Part.

(4)Subsection (3) 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.

(5)In determining for the purposes of subsection (4) above whether a mine or part of a mine became abandoned before, on or after 31st December 1999 in a case where the mine or part has become abandoned on two or more occasions, of which—

(a)at least one falls on or before that date, and

(b)at least one falls after that date,

the mine or part shall be regarded as becoming abandoned after that date (but without prejudice to the operation of subsection (3) above in relation to that mine or part at, or in relation to, any time before the first of those occasions which falls after that date).

(6)Where, immediately before a part of a mine becomes abandoned, that part is the only part of the mine not falling to be regarded as abandoned for the time being, the abandonment of that part shall not be regarded for the purposes of subsection (4) or (5) above as constituting the abandonment of the mine, but only of that part of it.

(7)Nothing in subsection (2) or (3) above prevents the enforcing authority from doing anything by way of remediation under section 78N below which it could have done apart from that subsection, but the authority shall not be entitled under section 78P below to recover from any person any part of the cost incurred by the authority in doing by way of remediation anything which it is precluded by subsection (2) or (3) above from requiring that person to do.

(8)In this section “mine” has the same meaning as in the M70Mines and Quarries Act 1954.

78K Liability in respect of contaminating substances which escape to other land.

(1)A person who has caused or knowingly permitted any substances to be in, on or under any land shall also be taken for the purposes of this Part to have caused or, as the case may be, knowingly permitted those substances to be in, on or under any other land to which they appear to have escaped.

(2)Subsections (3) and (4) below apply in any case where it appears that any substances are or have been in, on or under any land (in this section referred to as “land A”) as a result of their escape, whether directly or indirectly, from other land in, on or under which a person caused or knowingly permitted them to be.

(3)Where this subsection applies, no remediation notice shall require a person—

(a)who is the owner or occupier of land A, and

(b)who has not caused or knowingly permitted the substances in question to be in, on or under that land,

to do anything by way of remediation to any land or waters (other than land or waters of which he is the owner or occupier) in consequence of land A appearing to be in such a condition, by reason of the presence of those substances in, on or under it, that significant harm is being caused, or there is a significant possibility of such harm being caused, or that pollution of controlled waters is being, or is likely to be caused.

(4)Where this subsection applies, no remediation notice shall require a person—

(a)who is the owner or occupier of land A, and

(b)who has not caused or knowingly permitted the substances in question to be in, on or under that land,

to do anything by way of remediation in consequence of any further land in, on or under which those substances or any of them appear to be or to have been present as a result of their escape from land A (“land B”) appearing to be in such a condition, by reason of the presence of those substances in, on or under it, that significant harm is being caused, or there is a significant possibility of such harm being caused, or that pollution of controlled waters is being, or is likely to be caused, unless he is also the owner or occupier of land B.

(5)In any case where—

(a)a person (“person A”) has caused or knowingly permitted any substances to be in, on, or under any land,

(b)another person (“person B”) who has not caused or knowingly permitted those substances to be in, on or under that land becomes the owner or occupier of that land, and

(c)the substances, or any of the substances, mentioned in paragraph (a) above appear to have escaped to other land,

no remediation notice shall require person B to do anything by way of remediation to that other land in consequence of the apparent acts or omissions of person A, except to the extent that person B caused or knowingly permitted the escape.

(6)Nothing in subsection (3), (4) or (5) above prevents the enforcing authority from doing anything by way of remediation under section 78N below which it could have done apart from that subsection, but the authority shall not be entitled under section 78P below to recover from any person any part of the cost incurred by the authority in doing by way of remediation anything which it is precluded by subsection (3), (4) or (5) above from requiring that person to do.

(7)In this section, “appear” means appear to the enforcing authority, and cognate expressions shall be construed accordingly.

78L Appeals against remediation notices.

(1)A person on whom a remediation 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—

(a)if it was served by a local authority, to a magistrates’ court or, in Scotland, to the sheriff by way of summary application; or

(b)if it was served by the appropriate Agency, to the Secretary of State;

and in the following provisions of this section “the appellate authority” means the magistrates’ court, the sheriff or the Secretary of State, as the case may be.

(2)On any appeal under subsection (1) above the appellate authority—

(a)shall quash the notice, if it is satisfied that there is a material defect in the notice; but

(b)subject to that, may confirm the remediation notice, with or without modification, or quash it.

(3)Where an appellate authority confirms a remediation notice, with or without modification, it may extend the period specified in the notice for doing what the notice requires to be done.

(4)Regulations may make provision with respect to—

(a)the grounds on which appeals under subsection (1) above may be made;

(b)the cases in which, grounds on which, court or tribunal to which, or person at whose instance, an appeal against a decision of a magistrates’ court or sheriff court in pursuance of an appeal under subsection (1) above shall lie; or

(c)the procedure on an appeal under subsection (1) above or on an appeal by virtue of paragraph (b) above.

(5)Regulations under subsection (4) above may (among other things)—

(a)include provisions comparable to those in section 290 of the M71Public Health Act 1936 (appeals against notices requiring the execution of works);

(b)prescribe the cases in which a remediation 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 remediation notice against which he is appealing;

(d)prescribe the cases in which the appellant may claim that a remediation 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; and

(iii)the abandonment of an appeal;

(f)make different provision for different cases or classes of case.

(6)This section, so far as relating to appeals to the Secretary of State, is subject to section 114 of the M72Environment Act 1995 (delegation or reference of appeals etc).

78M Offences of not complying with a remediation notice.

(1)If a person on whom an enforcing authority serves a remediation notice fails, without reasonable excuse, to comply with any of the requirements of the notice, he shall be guilty of an offence.

(2)Where the remediation notice in question is one which was required by section 78E(3) above to state, in relation to the requirement which has not been complied with, the proportion of the cost involved which the person charged with the offence is liable to bear, it shall be a defence for that person to prove that the only reason why he has not complied with the requirement is that one or more of the other persons who are liable to bear a proportion of that cost refused, or was not able, to comply with the requirement.

(3)Except in a case falling within subsection (4) below, a person who commits an offence under subsection (1) above shall be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale and to a further fine of an amount equal to one-tenth of level 5 on the standard scale for each day on which the failure continues after conviction of the offence and before the enforcing authority has begun to exercise its powers by virtue of section 78N(3)(c) below.

(4)A person who commits an offence under subsection (1) above in a case where the contaminated land to which the remediation notice relates is industrial, trade or business premises shall be liable on summary conviction to a fine not exceeding £20,000 or such greater sum as the Secretary of State may from time to time by order substitute and to a further fine of an amount equal to one-tenth of that sum for each day on which the failure continues after conviction of the offence and before the enforcing authority has begun to exercise its powers by virtue of section 78N(3)(c) below.

(5)If the enforcing authority is of the opinion that proceedings for an offence under this section would afford an ineffectual remedy against a person who has failed to comply with any of the requirements of a remediation notice which that authority has served on him, that authority may take proceedings in the High Court or, in Scotland, in any court of competent jurisdiction, for the purpose of securing compliance with the remediation notice.

(6)In this section, “industrial, trade or business premises” means premises used for any industrial, trade or business purposes or premises not so used on which matter is burnt in connection with any industrial, trade or business process, and premises are used for industrial purposes where they are used for the purposes of any treatment or process as well as where they are used for the purpose of manufacturing.

(7)No order shall be made under subsection (4) above unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.

78N Powers of the enforcing authority to carry out remediation.

(1)Where this section applies, the enforcing authority shall itself have power, in a case falling within paragraph (a) or (b) of section 78E(1) above, to do what is appropriate by way of remediation to the relevant land or waters.

(2)Subsection (1) above shall not confer power on the enforcing authority to do anything by way of remediation if the authority would, in the particular case, be precluded by section 78YB below from serving a remediation notice requiring that thing to be done.

(3)This section applies in each of the following cases, that is to say—

(a)where the enforcing authority considers it necessary to do anything itself by way of remediation for the purpose of preventing the occurrence of any serious harm, or serious pollution of controlled waters, of which there is imminent danger;

(b)where an appropriate person has entered into a written agreement with the enforcing authority for that authority to do, at the cost of that person, that which he would otherwise be required to do under this Part by way of remediation;

(c)where a person on whom the enforcing authority serves a remediation notice fails to comply with any of the requirements of the notice;

(d)where the enforcing authority is precluded by section 78J or 78K above from including something by way of remediation in a remediation notice;

(e)where the enforcing authority considers that, were it to do some particular thing by way of remediation, it would decide, by virtue of subsection (2) of section 78P below or any guidance issued under that subsection,—

(i)not to seek to recover under subsection (1) of that section any of the reasonable cost incurred by it in doing that thing; or

(ii)to seek so to recover only a portion of that cost;

(f)where no person has, after reasonable inquiry, been found who is an appropriate person in relation to any particular thing.

(4)Subject to section 78E(4) and (5) above, for the purposes of this section, the things which it is appropriate for the enforcing authority to do by way of remediation are—

(a)in a case falling within paragraph (a) of subsection (3) above, anything by way of remediation which the enforcing authority considers necessary for the purpose mentioned in that paragraph;

(b)in a case falling within paragraph (b) of that subsection, anything specified in, or determined under, the agreement mentioned in that paragraph;

(c)in a case falling within paragraph (c) of that subsection, anything which the person mentioned in that paragraph was required to do by virtue of the remediation notice;

(d)in a case falling within paragraph (d) of that subsection, anything by way of remediation which the enforcing authority is precluded by section 78J or 78K above from including in a remediation notice;

(e)in a case falling within paragraph (e) or (f) of that subsection, the particular thing mentioned in the paragraph in question.

(5)In this section “the relevant land or waters” means—

(a)the contaminated land in question;

(b)any controlled waters affected by that land; or

(c)any land adjoining or adjacent to that land or those waters.

78P Recovery of, and security for, the cost of remediation by the enforcing authority.

(1)Where, by virtue of section 78N(3)(a), (c), (e) or (f) above, the enforcing authority does any particular thing by way of remediation, it shall be entitled, subject to sections 78J(7) and 78K(6) above, to recover the reasonable cost incurred in doing it from the appropriate person or, if there are two or more appropriate persons in relation to the thing in question, from those persons in proportions determined pursuant to section 78F(7) above.

(2)In deciding whether to recover the cost, and, if so, how much of the cost, which it is entitled to recover under subsection (1) above, the enforcing authority shall have regard—

(a)