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Environment Act 2021

Contents

Schedule 12: Smoke control in England and Wales

Part 1: Principal amendments to the Clean Air Act 1993: England

  1. Paragraphs 1 to 8 make amendments to the Clean Air Act 1993.
  2. Paragraph 2 inserts new section 19A, which introduces new Schedule 1A.
  3. Paragraph 3 inserts new Schedule 1A after Schedule 1. Schedule 1A makes provisions for imposing financial penalties for emissions of smoke from a chimney of a building, a chimney (not being a chimney of a building) which serves the furnace of any fixed boiler or industrial plant and, if applicable, a chimney of a vessel in smoke control areas in England. The amendments to this Act enable a local authority to extend the scope of a smoke control area to cover moored vessels, (as set out in paragraph 7 below), subject to local consultation. They would need to amend their smoke control order to include vessels and then once it comes into operation smoke emissions from the chimney of such vessels could be liable to a financial penalty.
New Schedule 1A Penalty for emission of smoke in smoke control area in England
  1. Paragraph 1 of new Schedule 1A defines "relevant chimney" and "person liable" (in relation to a relevant chimney).
  2. Paragraph 2 of new Schedule 1A defines "notice of intent", setting out when a notice of intent applies and what it must do. Where a local authority is satisfied that smoke has been emitted from a relevant chimney, they can give a notice to the liable person. The notice must include the information specified in sub-paragraph (3).
  3. Paragraph 3 of new Schedule 1A provides the minimum and maximum levels of penalty that can be given in respect of a financial penalty issued under the Schedule. Sub-paragraphs (3) and (4) allow the Secretary of State to amend these amounts under regulations, subject to the affirmative resolution procedure. This means that draft regulations must be laid before and approved by a resolution of both Houses of Parliament.
  4. Paragraph 4 of new Schedule 1A gives the recipient of the notice of intent a period of 28 days from the day after the notice of intent was given to object in writing on a ground specified in sub-paragraph (2) and provide evidence to support the objection. For example, they could object on the grounds that there was no emission of smoke on the occasion specified or that they were not the person liable on the occasion specified in the notice of intent. Sub-paragraph (3) stipulates that if the objection is on the grounds of the person not being liable, the name and address of the liable person must be included if known. Sub-paragraph (4) allows the Secretary of State to amend the grounds of objection under regulations, subject to consultation with anyone who may have an interest in the proposed regulations (sub-paragraph (5)) as well as the affirmative resolution procedure (sub-paragraph (6)). This means that draft regulations must be laid before and approved by a resolution of both Houses of Parliament.
  5. Paragraph 5 of new Schedule 1A gives the local authority the power to impose a financial penalty, following the issuing of a notice of intent, and specifies the period within which they must do so. Sub-paragraph (2) stipulates that a local authority must notify a person of their decision not to impose a financial penalty, if applicable. For example, if the local authority receives an objection following the issuing of a notice of intent and is satisfied that the penalty should not apply, they must inform the person of their decision.
  6. Paragraph 6 of new Schedule 1A provides for the application of this paragraph where a local authority decides to impose a financial penalty. It sets out how a local authority can use a final notice to impose a financial penalty and defines a "final notice". It also sets out what a final notice must specify (sub-paragraph (3)) and sets out the period within which the financial penalty must be paid (sub-paragraph (4)).
  7. Paragraph 7 of new Schedule 1A gives local authorities the power to withdraw a notice of intent or final notice, or reduce the amount specified in a final notice, and explains how to use said power.
  8. Paragraph 8 of new Schedule 1A gives the recipient of a financial penalty a period within which they can appeal to the First-tier Tribunal. It also sets out the grounds of appeal to the First-tier Tribunal a person may take. Sub-paragraph (3) stipulates that until the appeal has been determined or withdrawn, the final notice is suspended (that is, the local authority cannot pursue any debt until such time). Sub-paragraph (4) gives the First-tier Tribunal the power to respond to the appeal.
  9. Paragraph 9 of new Schedule 1A states that a financial penalty is recoverable as a civil debt due to the relevant local authority.
  10. Paragraph 10 of new Schedule 1A allows a local authority to delegate any of their functions under this Schedule. It requires that delegation must be made by giving notice to the delegate.
  11. Paragraph 11 of new Schedule 1A requires that a notice under this Schedule must be in writing, and instructs how a notice may be given to a person.
  12. Paragraph 12 of new Schedule 1A applies to a vessel moored in a smoke control area in England and is subject to the operation of new Schedule 1A. It sets out that when a local authority has included vessels within the scope of its smoke control area, these provisions apply in respect of emissions of smoke from those vessels. If the notice of intent cannot be given to the occupier of the vessel, it may instead be given to the registered owner of the vessel, in which case one of the grounds for objecting listed in paragraph 4(2) – that they were not the person liable on the occasion specified in the notice of intent – does not apply. A person who receives a notice of intent relating to a vessel may object under paragraph 4 on the further ground that the smoke emitted on the occasion specified was solely due to engine-powered propulsion or to provide electric power to the vessel.
  13. Paragraph 4 inserts new sections 19B to 19D after new section 19A. These sections set out the offences relating to the acquisition and sale of controlled solid fuel in England, the exemption relating to particular areas in England, and the interpretation of new sections 19A to 19C.
New section 19B Acquisition and sale of controlled solid fuel in England
  1. Most of the provisions set out in new sections 19B and 19C mirror those in existing sections 22 and 23 of the Clean Air Act, but have been amended to provide a distinction between how Part 3 of the Act applies in England and in Wales. For example, subsection (1) of new section 19B provides for an offence of acquiring controlled solid fuel for use in a building, fireplace, fixed boiler or industrial plant to which a smoke control order applies. This offence already exists in existing section 23 of the Act.
  2. New subsection (2) clarifies that the acquisition of controlled solid fuel for use in the propulsion of a vessel or to provide electric power to the vessel will not form an offence.
  3. New subsection (3) clarifies that acquiring controlled fuel for use in an approved fireplace will not form an offence, mirroring the existing defence under section 23. For example, wood is a controlled solid fuel but it is not an offence to acquire wood for use in a smoke control area if it will used in a fireplace of a type specified in a list published by the Secretary of State and used in compliance with any conditions specified in the list.
  4. New subsection (4) sets out a new offence where a retailer must notify potential buyers that is an offence to acquire controlled solid fuel for certain purposes (for example, if it will be burned in a fireplace not specified in the Secretary of State’s list of approved fireplaces, such as an open fireplace, in a smoke control area in England). This also applies to online retailers. Reasonable steps to notify potential purchasers could include, for example, putting an informative sign next to the fuels and at the cash register, or including a notification during online checkout.
  5. New subsection (5) provides for an offence of selling controlled fuels for delivery to a building, or premises with a fixed boiler or industrial plant to which a smoke control order in England applies. This offence already exists in the current Act.
  6. New subsection (6) provides defences for the offence under subsection (5), mirroring the existing defences in the current Act.
  7. New subsection (7) provides that a person guilty of the offences under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
  8. New subsection (8) provides that a person guilty of the offence under subsections (4) and (5) is liable on summary conviction to a fine. The level of fine will be determined by the Court.
New section 19C Exemptions relating to particular areas in England
  1. The provisions set out in new section 19C (exemptions relating to particular areas in England) allow the Secretary of State to order the suspension of financial penalties for emission of smoke and/or offences relating to the acquisition and sale of controlled solid fuel in England. Subsection (2) sets out that the Secretary of State must consult the relevant local authority prior to using their power under subsection (1), and subsection (3) sets out what the local authority must do following the making of such an order.
New Section 19D Interpretation: "approved fireplace" and "controlled solid fuel"
  1. New section 19D applies to new sections 19A to 19C. Subsection (1) defines "approved fireplace", and subsection (2) sets out the requirements a fireplace must meet in order for the Secretary of State to include it on the list of approved fireplaces. Subsections (3) and (4) define "controlled solid fuel" and "approved fuel".
  2. Paragraph 5 inserts new section 26A after section 26.
New section 26A Duty of local authority to reimburse for adaptations of vessels in England
  1. This section sets out the criteria by which local authorities in England are required to reimburse owners or occupiers of vessels that are subject to a smoke control order, for works carried out to avoid incurring a financial penalty under new Schedule 1A to the Clean Air Act 1993.
  2. Subsection (1) sets out the criteria an owner or occupier of a vessel must meet in order to be eligible for reimbursement under these provisions. For example, the vessel must have the right to moor at a single mooring place for the qualifying period, the owner or occupier must complete the adaptations prior to the coming into operation of the order, and the owner or occupier must not have access to mains gas or electricity.
  3. Subsection (2) provides further conditions for when reimbursement will be required, and requires local authorities to reimburse the owner or occupier of a vessel 70% of the expenditure incurred in carrying out the adaptations if the adaptations are completed prior to the coming into operation of the order, the local authority approves the expenditure, and the adaptations are completed to the satisfaction of the local authority.
  4. Subsection (3) stipulates that reimbursement must be paid in equal monthly instalments for a period of six months.
  5. Subsection (4) removes the duty on local authorities to reimburse the owner or occupier of a vessel, should the owner or occupier cease to have the right to moor at the single mooring place or the vessel be absent from the smoke control area for one or more periods totalling three months.
  6. Paragraph 6 inserts new section 28A after section 28.
New section 28A Guidance for local authorities in England
  1. New section 28A requires local authorities in England to have regard to any guidance published by the Secretary of State related to their functions under Part 3 of the Act.
  2. Paragraph 7 inserts new subsections (2A) to (2C) after section 44(2).
  3. New subsection (2A) allows local authorities in England to include moored vessels in scope of their smoke control areas, which would be subject to the operation of new Schedule 1A. The amendments in this Act enable a local authority to extend the scope of a smoke control area to cover moored vessels, subject to local consultation. They would need to amend their smoke control order to include vessels, and then, once it comes into operation, smoke emissions from the chimney of such vessels could be liable to a financial penalty. New subsection (2B) extends references to a building in Part 3 and in section 54 of the Act to vessels, except for references in section 24 and 25 to dwellings. New subsection (2C) defines "moored vessels".
  4. Paragraph 8 clarifies that rights of entry under section 56 only apply in relation to a private dwelling where adaptations are required under section 24(1), or to a vessel where there is a duty to make reimbursements to the occupier or owner for works carried out under section 26A(3).

Part 2: Principal amendments to the Clean Air Act 1993: Wales

  1. Paragraphs 9 to 11 make amendments to the Clean Air Act 1993.
  2. Paragraph 10 amends section 20 (prohibition on emission of smoke in smoke control area), which only applies in Wales following the minor and consequential amendments made in Part 3. Sub-paragraph (2) amends, for Wales, the procedure for declaring a fuel to be authorised for the purposes of Part 3 of the Act. It enables Welsh Ministers to authorise fuels by publishing a list of authorised fuels and to update this list as needed. Sub-paragraph (3) omits subsection (6), which gives meaning to "authorised fuel".
  3. Paragraph 11 amends section 21 (power by order to exempt certain fireplaces) as it applies to Wales. Welsh Ministers currently have the power to exempt any class of fireplace by order upon such conditions as may be specified in the order, if they are satisfied that such fireplaces can be used for burning fuel other than authorised fuels without producing any smoke or a substantial quantity of smoke. The amendment enables Welsh Ministers to exempt such fireplaces by publishing a list of exempted fireplaces and any relevant conditions and to update this list as needed.
  4. The amendments made by these paragraphs will enable Welsh Ministers to authorise fuels and exempt fireplaces as and when they are manufactured and tested, rather than waiting for common commencement dates as is currently the case for Wales.

Part 3: Minor and consequential amendments

Minor and consequential amendments to the Clean Air Act 1993

  1. Paragraph 13 amends section 18 (declaration of smoke control area by local authority) to achieve a distinction between how Part 3 applies in England and in Wales, and extends the section to include new Schedule 1A.
  2. Paragraph 14 amends section 20 (prohibition on emission of smoke in smoke control area) to provide that the section applies only in Wales.
  3. Paragraph 15 amends section 21 (power to exempt certain fireplaces) to achieve a distinction between how Part 3 applies in England and in Wales.
  4. Paragraph 16 amends section 22 (exemptions relating to particular areas) to achieve a distinction between how Part 3 applies in England and in Wales.
  5. Paragraph 17 amends section 23 (acquisition and sale of unauthorised fuel in a smoke control area) to achieve a distinction between how Part 3 applies in England and in Wales.
  6. Paragraph 18 amends section 24 (power to require adaptations of fireplaces) to achieve a distinction between how Part 3 applies in England and in Wales, and extends the section to include new Schedule 1A.
  7. Paragraph 19 amends section 26 (power to make grants for fireplaces in churches etc) to achieve a distinction between how Part 3 applies in England and in Wales and, extends references made to premises to include vessels.
  8. Paragraph 20 amends section 27 (references to adaptations) to achieve a distinction between how Part 3 applies in England and in Wales, and extends references made to a dwelling to include vessels.
  9. Paragraph 21 amends section 28 (expenditure on execution of works) to extend references made to a dwelling to include vessels.
  10. Paragraph 22 inserts the definition of "smoke control order in England" into section 29 (interpretation).
  11. Paragraph 23 amends section 63 (regulations and orders) to clarify that the delegated powers set out in paragraph 3(3) and 4(5) of new Schedule 1A are not subject to annulment in pursuance of a resolution of either House of Parliament.
  12. Paragraph 24 amends Schedule 1 to achieve a distinction between how Part 3 applies in England and in Wales, and extends paragraph 5 of that Schedule 1 to new Schedule 1A. Sub-paragraph (3) inserts new paragraph 6A into Schedule 1, which provides a duty on local authorities in England to inform the Secretary of State of any new smoke control orders and the date on which they will come into operation.

Minor amendments to other legislation

  1. Paragraph 25 inserts "in Wales" into subsection (3)(i) of section 79 of the Environmental Protection Act 1990 (statutory nuisances). This achieves a distinction between how the section applies in England and in Wales. It means that private dwellings in smoke control areas in England are no longer exempt from nuisance legislation, but retains the exemption for Wales. This means that smoke from private dwellings in smoke control areas in England can constitute a statutory nuisance, provided that it is prejudicial to health or a nuisance, as is currently the case for private dwellings outside of smoke control areas in England.

Part 4: Smoke Control Areas in England: Transitional Provision

  1. This transitional provision ensures that, where a local authority in England has made a smoke control order, any limitations that currently apply by virtue of that order will continue to apply in relation to new Schedule 1A, when those provisions are commenced. This is because if a smoke control order that applies in England makes any such limitations or exemptions from section 20 of the Clean Air Act 1993 these would be of no effect once Schedule 1A comes into force, as section 20 will then only apply in Wales.

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