Mark Foley from Cardiff held a permit in the name of his firm M E Foley Contractors LTD to dump non-hazardous waste in Stowey Quarry, close to Chew Valley Lake - which is one of Weston-super-Mare’s sources of drinking water.
But at North Somerset courte on Monday, Foley and his firm were accused of dumping harmful substances, including residues created in the process of scrapping cars, in violation of his permit.
This Act:
This Act applies primarily to England, Wales, and Scotland. Certain
sections of the Act apply in Northern Ireland (Sections 3, 62, 140, 141, 142,
146, 147, 148, 153, 156 and 158). The Act has been
subsequently amended, including by: Certain Sections
have been brought into force by the following provisions: FULL LEGAL CONSOLIDATED
SUMMARY PART I Pollution control
from processes Sections
1-28 are concerned with the regulation of emissions from processes
prescribed in legislation by means of authorisations. Following recommendations
of the Royal Commission on Environmental Pollution that industrial pollution
control was often too fragmented, and failed to consider environmental impacts
as a whole, a more integrated pollution control regime, known as IPC, and
applied by the Environment Agency, is introduced, and applied to certain
specified industries and processes. Other classes of prescribed industries and
processes are regulated by local authorities but in respect of air emissions
only. Both the IPC and the Local Authority regimes are governed by the same
core statutory provisions under this Part, and have to read with that in mind.
Significant changes, which are not yet in force, are expected to take place on
this Part. Interpretation Regulations to
define process and substances to which the controls apply Regulations establishing environmental quality and objective standards
and national quotas. Distinction
between Environment Agency and Local Authority
functions Authorisations Sections 6-16
deal with authorisations under the IPC and local authority regimes, the core
regulatory tool used under these provisions. Section 6 makes it an offence to carry on a
prescribed process without an authorization or in breach of conditions
contained in such an authorisation. Details of application procedures are
contained in Schedule I, and authorisations must be reviewed regularly, and at
least every 4 years. Section 7 is the key
provision that defines the purpose and nature of conditions to be contained in
authorisations. For IPC processes regulated by the Environment Agency, reference
to releases means releases into any environmental medium, while for Local
Authority regulated processes the references mean releases into the air only.
Conditions must be included to ensure the objectives that the best available
techniques not entailing excessive costs (BATNEEC) are used to prevent the
releases of substances prescribed in Regulations, and if that is not
practicable to reduce the release to the minimum or render harmless any actual
releases. For any other substance which is not prescribed the objectives of to
render releases releases, rather than the prime objective of reduction or
minimisation. For those aspects of the process not regulated by an express
condition, there is a catch-all implied condition on operators to use BATNEEC
to prevent, reduce and render harmless emissions of prescribed substances, or
render harmless emissions of non-prescribed substances. Conditions must also be
included to comply with directions given by the Secretary of State to meet EU
or international obligations, or to meet quality standards or objectives
prescribed by the Secretary of State. For IPC processes
where emissions go into more than one environmental medium, an additional
objective for conditions is that BATNEEC is used to minimize pollution caused
to the environment as a whole having regard to the Best Practicable
Environmental Option. Authorisations may include conditions
imposing limits on amounts or composition of substances used produced by the
process, or requiring advance notification of changes in the manner of carrying
out the process. Conditions may not, however, regulate the final disposal of
waste on land, since this is subject to the dedicated waste management
licensing regime under Part II of this Act (see s28). Enforcing
authorities must have regard to any guidance issued by the Secretary of State
concerning techniques to be used in processes. Fees Transfer of
Authorisation Variation of
Authorisation Section 11 allows
the person carrying on the process who wishes to change the way the process is
carried on to notify the enforcing authority to seek a determination whether
changes in conditions are required. Rather than seeking a prior determination,
he may simply seek a variation, either because of process changes that are to
take place or for other reasons. Part II of Schedule 1 deals with detailed
procedural requirements concerning such variations. Revocation Enforcement and Prohibition
Notices Appeals Information powers of Secretary of
State Public Registers Offences Enforcement by High
Court Onus of
proof Remedial Orders by Court Remedial powers
of Environment Agency Overlap with waste
management controls PART II Waste
Management The system of waste management
licensing under this Part is replaced in England and Wales by the new system of
environmental permitting under the Environmental Permitting (England and Wales)
Regulations 2007 (SI 2007/3538). Interpretation The Environmental
Permitting (England and Wales) Regulations 2007 (SI 2007/3538) amend (subject
to transitional provisions and savings) the definition of ‘mobile plant’ so
that it is defined as a plant which is designed to move or be moved whether on
roads or other land. The terms ‘environmental permit’, ‘exempt waste
operation’, and ‘waste operation’ have the same meaning as under SI 2007/3538.
The Environmental Permitting (England and Wales) (Amendment)
Regulations 2009 (SI 2009/1799) make a number of further amendments to
definitions in this Section, in order to insert references to extractive waste.
Waste authorities Core waste
offence The deposit on land of controlled waste or knowingly or
causing or permitting controlled waste to be deposit without a licence or
breach of licence conditions is prohibited. Breach of a condition itself is an
offence (whether or not disposal was involved). In addition treating, keeping
or disposing of controlled waste without a licence, or in breach of licence
conditions, or in a manner likely to cause environmental pollution or harm to
human health is prohibited. Controlled waste includes household, industrial
(which since 2006 includes agricultural waste) and commercial waste. There is a defence where the defendant can prove that he took all
reasonable precautions and exercised due diligence to avoid committing the
offence, acted under instructions from his employer, or the acts were done in
an emergency. Requiring licences for every type waste
disposal or treatment activity would overload the system and capture
potentially innocuous activity, and sub-Section (3) allows the Secretary of
State to make regulations exempting forms and types of waste disposal and
treatment from the need for a licence. The Environmental
Permitting (England and Wales) Regulations 2007 (SI 2007/3538) amended the
offences, so that the following is prohibited: Further, the Environmental Permitting (England and Wales) (Amendment)
Regulations 2009 (SI 2009/1799) amends this Section to include references to
extractive (mining) waste, in addition to controlled waste. The Environmental Permitting (England and Wales) Regulations 2007 (SI
2007/3538) also inserted new subsections 1A and 1B, which outline certain
situations to which prohibitions do not apply, as well as providing that an
offence is committed only by contravening these prohibitions, and not by
breaching a condition itself. In Scotland, the Waste
Batteries (Scotland) Regulations 2009 (SSI 2009/247) insert subsections 2B and
2C to remove collection points for waste portable batteries established under
the EU Waste Batteries and Accumulators Directive 2006/66/EC from the scope of the criminal offences
created by Section 33(1)(a) and (b), which concern the depositing, treating,
keeping or disposing of controlled waste other than in accordance with a WML). The Clean Neighbourhoods and Environment Act 2005 removed the defence
of acting under the instruction of an employer from the list of above
defences. The Act also added 33A
concerning investigation and enforcement costs, 33B relating
to clean-up costs, and 33C concerning forfeiture of
vehicles. These ‘new’ Sections have been amended by the Environmental
Permitting (England and Wales) Regulations 2007 (SI 2007/3538)). In Scotland, the Antisocial Behaviour etc. (Scotland) Act 2004, s55,
added 33A regarding fixed penalty notices for
contraventions. This is amended by the Litter (Fixed Penalties) (Scotland)
Order 2013 (SSI 2013/315)
to increase the fixed penalty for flytipping from £50 to £200. Duty of Care Waste
Management Licences Licences Third parties are required
to grant rights to Licence holders Licence
applications and grounds for refusal Consultation with third parties
who may be required to give rights Modification of Licence
Conditions Consultation
with third parties who may be required to give rights by
modification Revocation of Licences Surrender of Licences Transfer of
Licences Section
41 (repealed by Environment Act 1995, s120) referred to licence
charges but these are now dealt with under general charging provisions in s41
Environment Act 1995. Supervision by Environment Agency Appeals to Secretary of State False
Information Offences Sections 44ZA to
44ZD (integrated waste management plans) were added by the
Local Government in Scotland Act 2003 in relation to Scotland. National Waste Strategy Section 44B contains similar provisions for a waste
strategy for Scotland but the duty to prepare the strategy is placed on the
Scottish Environment Protection Agency. The Secretary of State may direct the
Agency as to policies to be included in the Strategy. This section was repealed
in Scotland by the National Waste Management Plan for Scotland Regulations 2007
(SSI 2007/251),
Regulation 8. Collection and Disposal of Waste Sections 45-56 are mainly concerned with the powers
and duties of waste disposal and collection authorities to collect and dispose
of waste. This is of special relevance to household and office waste. Section 45 imposes a general duty on waste
collection authorities (see s 30 above) to arrange for the collection of
household waste. They must also collect commercial waste (essentially office
waste) if requested by occupiers. They may, but are not obliged to, collect
industrial waste if requested, but only with prior consent of the disposal
authority. Reasonable charges may be made for the collection of commercial or
industrial waste. Section 46 gives waste
collection authorities the power to require that household waste be placed for
collection in specified receptacles, including separate receptacles for
recycling. Charges may be made by the authority for the provision of
receptacles. An appeal against a requirement under this section may be made to
the local magistrates' court. Section 76 of the Climate Change Act 2008 inserts a new provision
stating that a waste collection authority is not obliged to collect household
waste placed for collection in contravention with a requirement under this
Section. Section 47 allows the waste
collection authority to supply receptacles for the collection of commercial or
industrial waste which they have been requested to collect, and may make
reasonable charges for the supply. The authorities may also require commercial
or industrial waste to be stored in suitable receptacles where they consider it
would otherwise be likely to cause a nuisance or detriment to local amenities.
An appeal against such a requirement may be made to the local magistrates'
court. Failure to comply with such requirements is a summary offence with a
maximum fine of £1,000 (Level 3 on the Standard Scale). Section 47ZA (Fixed penalty notices for offences under Sections
46 and 47), as inserted by the Clean Neighbourhoods and
Environment Act 2005 for England and Wales, allows a fixed penalty notice to be
issued in respect of offences under Sections 46 and 47 in lieu of prosecution,
as well as the requirements of such a notice. Section 47ZB (Amount
of fixed penalty under Section 47ZA), as inserted by the
Clean Neighbourhoods and Environment Act 2005 for England and Wales and amended
by the Environmental Protection Act 1990 (Amendment of Fixed Penalty Amount)
(England) Order 2012 (SI
2012/1150), sets the default monetary penalty (where none is
specified) that an authority may impose in a Section 47ZA fixed penalty notice
at £60 in England. The default monetary penalty, where not specified in Wales,
remains at £100. Section 47A (Recycling and composting: duty to report to
Parliament), as inserted by the Household Waste Recycling Act 2003 for England and
Wales, requires the Secretary of State to lay before each House of Parliament a
report of the performance of each English waste authority in meeting its
recycling and composting standards (if any) and of each English waste
collection authority towards meeting the requirement imposed by Section 45A(2)
by 31 October 2004. Section
48 imposes a general duty on collection authorities to disposed of
the waste they have collected to places where the disposal authorities direct.
This duty does not apply where the collection authority have made arrangement
for the recycling of household or commercial waste unless the disposal
authority objects because it has made arrangements for recycling with a
contractor. Section 49 requires
collection authorities to prepare and regularly update waste recycling plans in
respect of household and commercial waste. This Section was repealed by the
Local Government in Scotland Act 2003, s34, for Scotland, and by the Waste and Emissions Trade Act
2003, s35, in relation to England and Wales. Section 50 relating to regional waste disposal has
been repealed (subject to savings) by the Environment Act 1995, Schedule 24,
since it is now superseded by the provisions in s44A concerning a National Waste
Strategy. Section 51 requires waste
disposal authorities (see s30 above) to arrange for the disposal of waste
collected by waste collection authorities, and to provide places for the
deposit of household waste by local residents free of charge. Charges may be
made for the disposal at such facilities of household waste by non-residents or
for other waste. Disposal facilities and deposit facilities must be carried out
by waste disposal contractors (including local authority arm's length operators)
rather that the disposal authority itself. Section
52 provides for various financial credits to be made between disposal
and collection authorities in respect of waste that is recycled by the
collection authority, or where the disposal authority discharges its functions
so that the collection authority makes savings on collection. Waste disposal
authorities also have the discretion to make payments to third parties who
collect waste for recycling which would otherwise have to be collected by the
collection authority under s45 above. This Section has been amended by the
Clean Neighbourhoods and Environment Act 2005 and the Local Government and Public
Involvement in Health Act 2007. Section
53 contains particular provisions concerning disposal of waste in
Scotland. Section 54 relating to land
occupied by disposal authorities in Scotland was repealed by the Environment
Act 1995 (As amended). Section 55 gives a
general power to waste disposal and collection authorities to make arrangements
with respect to the recycling of waste. The S56 contains similar provisions in
for disposal authorities in Scotland only. Disposal of waste
in specific circumstances Removing waste that has been
fly-tipped
The Waste Enforcement (England and Wales)
Regulations 2018 (SI 2018/369)
add Sections 59ZB and 59ZC to grant powers to waste
regulation authorities and waste collection authorities in England and Wales to
require waste to be removed from a site if it has been unlawfully kept or
disposed of, including waste initially lawfully deposited.
Interfering with waste
receptacles Section 60A
(inserted by Schedule 5 of the Climate Change Act 2008 – subject to a piloting scheme
as provided for in Sections 72 to 75 of that Act and by Order of the Secretary
of State bringing the waste reduction provisions into force generally on such
date as is specified) provides that a waste collection authority whose area is
in England may make a waste reduction scheme in accordance with Schedule
2AA. Section 61
dealing with closed landfills was repealed by the Environment Act 1995,
Schedule 24. Section 62 gives power to
the Secretary of State to make special regulations for dealing with especially
hazardous waste. Regulations made under this section have now been replaced by
the Hazardous Waste (England and Wales) Regulations 2005 (SI 2005/894) . Section 62A, inserted by the
Hazardous Waste (England and Wales) Regulations 2005 (SI 2005/894), integrates
the list of hazardous waste into the environmental protection regime. The
Hazardous Waste (Miscellaneous Amendments) Regulations 2015 (SI 2015/1360)
amended Section 62A to update the reference to Annex III of the current EU
Waste Framework Directive (WFD) 2008/98/EC. The same reference was subsequently
further updated, by the Environment, Food and Rural Affairs (Miscellaneous
Amendments and Revocations) Regulations 2018 (SI 2018/942), to reflect the
amendment of the entry for hazardous property 14 (‘Ecotoxic’), Other wastes Public
Registers Section 65 gives the Secretary of State power to
exclude information considered to be contrary to the interests of national
security. This Section was repealed by the Environmental Permitting (England
and Wales) Regulations 2007 (SI 2007/3538). Section
66 permits the exclusion of information deemed to be commercially confidential
by the Environment Agency, or on appeal the Secretary of State. Application is
made to the Agency to exclude the information. Information is considered to be
commercially confidential if its inclusion in the register would prejudice to
an unreasonable degree commercial interests of the person seeking exclusion.
This Section was repealed by the Environmental Permitting (England and Wales)
Regulations 2007 (SI 2007/3538). Section
67 (Annual Reports by Environment Agency), s68 (appointment of
inspectors by Secretary of State), s69 (powers of entry) and s70 (powers to
deal with imminent pollution) were repealed by the Environment Act 1995,
Schedule 24. Obtaining
information Section 72 (default powers
of Secretary of State) was repealed by the Environment Act 1995. Appeals from Magistrates Courts Fit and Proper
Person Definitions of
waste Section 76 (relating to
the Scilly Isles) was substituted by s118 of the Environment Act 1995 so that
this Part shall not apply to the Isles of Scilly subject to the provisions of
any order made by the Secretary of State under this section. Section 77 is concerned with transitional arrangements
concerning licences granted under previous waste disposal
legislation. Section 78 provides that
this Part of the Act does not apply to radioactive waste, except to the extent
provided in regulations. Part IIA
Contaminated Land Section
78A-78YC were introduced by the Environment Act 1995, and provide for
a new legal regime for dealing with the identification and remediation of
contaminated land. The provisions need to read alongside the Guidance issued by
the Secretary of State under this part, since this will define key legal terms
and approaches to be adopted. Current Guidance is to be found in Circular 01/2006 Environmental
Protection Act 1990: Part 2A Contaminated Land (September 2006). In essence,
the regime follows existing principles of statutory nuisance law, with
responsibility for clean up is placed on those who caused or knowingly
permitted the contamination, but if they cannot be found on the current owner
or occupier of the land. However, these core principles are subject to complex
rules of apportionment, and recognition that it may be unfair to place burdens
on current owners or occupiers. Core
definitions Identification of contaminated
land Special sites Section 78D allows the Environment Agency (EA) to
refer a notification of a Special Site to the Secretary of State for decision
where it disagrees with the determination of the Local Authority. Similarly,
the EA can also refer the issue to the Secretary of State where a local
authority disagrees with its view that a site should be designated
Special. Remediation
Notice Responsible parties Remediation Notice affecting rights of other
parties Restrictions on Serving Remediation
Notices Restrictions on
liability in respect of water pollution Migrating
contamination Appeals Offences Power of enforcing
authority to carry out remediation itself Recovery of costs of
remediation Special sites and remediation
notices Registers Reports on contaminated land Guidance by Environment
Agency Guidance by Secretary of State Supplementary provisions Scilly
Isles Supplementary provisions concerning Guidance
issued by the Secretary of State Relationship of regime with other
environmental laws Radioactivity Part III Statutory
Nuisances Sections
79-84 deal with statutory nuisance provisions, which give local
authorities important powers to deal with a range of defined environmental
problems, including noise, light pollution, and smells. Definition of statutory nuisances and duty to
inspect The Environment Act 1995 adds subsections 1A and 1B
so that ‘land in a contaminated state’ does not constitute a statutory
nuisance. Whether or not the situation is serious enough to
be a 'nuisance' is a matter of judgement, but essentially implies it can be
said to interfere unreasonably with personal comfort and enjoyment of
residents. The section imposes a duty of local authorities (district and unitary
authorities) both to inspect their areas from time to time to detect statutory
nuisances, and to take reasonably practicable steps to investigate any
complaint made. The section also provides various definitions, and exclusions,
which have been subject to a number of amendments. The
relevant amendments to Section 79 in relation to Scotland are made by the
Environment Act 1995, Schedule 17. Further amendments made to this section was
made by Part 9 of the Public
Health etc. (Scotland) Act 2008, with regard to insect, artificial
light, and land covered with water nuisances. Scottish Ministers are also
conferred with the power to make further provision regarding statutory
nuisances. Service of abatement notice
Section 80 has been amended in relation to
Scotland by section 113 of the Public Health etc. (Scotland) Act 2008, as has
Section 81. Abatement notice for noise in
streets Remedial action by Local Authority Section 81A provides that where expenses for
remedial action carried out by the authority under the previous section are
recoverable from the owner the authority may charge interest on the expenses
specified in the notice served on the owner seeking recovery, and may also
enforce the requirements as a charge on the property. Where the expenses are a
charge on the property, S81B provides that the authority may declare the
payment to be made by instalments. Proceedings by private
individual Section 83 (relating to
statutory nuisance proceedings in Scotland) was repealed by Environment Act
1995. Section 84 provides for the
termination of existing controls under the Public Health Act 1936 relating to
certain 'offensive trades'. Section 85
(relating to gases under the Clean Air Act 1968) was repealed by the Clean Air Act 1993,
Schedule 6. Part IV
Litter Sections 86-98
contain a range of provisions dealing with the control of litter and abandoned
items such as shopping trolleys. The Clean Neighbourhoods and Environment Act
2005 makes a number of amendments in these sections in relation to England and
Wales. Litter Authorities and
jurisdiction Core litter
offence Fixed
penalties This has been subsequently amended for Scotland
by: Duty on authorities to keep land and
highways free from litter Litter control
areas Complaints by private
persons Proceedings by litter authorities Litter clearing orders Street litter Section
94A introduced under Part 3 of Clean Neighbourhoods and Environment
Act 2005 allows the use of fixed penalty notices in relation to offences under
s92C (litter clearing orders) and s93 (court order requiring clean up of street
litter). Distribution of free printed
matter Public registers Application of waste management provisions to
litter Transitional Supplementary provisions concerning fixed penalty
notices Exclusion of liability Definitions Abandoned shopping trolleys Part V (amendment
of radioactive Substances Act 1960) Sections 100-105 were repealed by the Radioactive Substances Act
1993. Part VI Genetically
Modified Organisms Sections
106-127 introduced a new regime expressly designed to regulate the
use and release of genetically modified organisms, based on a consent system
operated by the Department of Food, Environment, and Rural Affairs. The
framework of controls has to now be read in the context of EU legislation on
the subject of GMOs that overlay requirements at EU level. Purpose and Definitions Section 107 defines
other key terms."Damage to the environment" has been amended, in relation
to England (SI 2002/2443), Scotland (SSI 2002/541) and Wales (SI 2002/3188), to
be defined as the presence in land, air or water of GMOs that have escaped or
been released from someone's control and are capable of causing damage to
living organisms. Harm means harm to human health, other living organisms, or
interference with ecological systems of which they form a part. Harm includes
harm to property. The definition of ‘harm’ has been amended in relation to
England (SI 2002/2443), Scotland (SSI 2002/541) and Wales (SI 2002/3188) to be
defined as adverse effects as regards the health of humans or the environment.
The definitions of ‘control’ and ‘marketed’ have been amended also. Duty to carry out risk assessment General duties Prohibition
Notice Consents Section 112 entitles the Secretary
of State to impose conditions in a consent as he considers fit. This provision
has been amended by the Genetically Modified Organisms (Deliberate Release)
Regulations 2002 relating to England, Scotland and Wales to apply for the
purpose of avoiding damage to the environment. There are also a number of
conditions implied in every consent which reflect the fact that those involved
in GMO techniques are likely to have distinctive specialist knowledge of the
subject. Consent holders must keep themselves informed of environmental risks,
and inform the Secretary of State where the risks appear more serious than when
the consent was originally granted. The implied conditions have been amended by
the 2002 Genetically Modified Organisms (Deliberate Release) Regulations
relating to England, Scotland and Wales so that it is necessary for consent
holders to inform the Secretary of State of any unforeseen event connected to a
release; to take measures to prevent damage to the environment; to notify the
Secretary of State of any measures taken in relation to new information or an
unforeseen event and to revise the information provided in a consent
application in light of new information or an unforeseen event. However, it is
no longer necessary to inform the Secretary of State in the situation where the
risks appear more serious than when the consent was originally granted. Those
who keep, release, or market GMOs must take all reasonable steps to keep
themselves informed of developments in preventative techniques, and inform the
Secretary of State of improved techniques which could be reflected in a
variation of consent conditions. Section
113 provides for a scheme of fees for consent applications and
holding of consents to be made by the Secretary of State. Inspections Section 114 allows
the Secretary of State to appoint inspectors to enforce the GMO
regime. Section 115 gives inspectors the
right to enter and inspect premises for enforcement purposes. Enforcement powers Section 116 gives the Secretary of State by notice
to require anyone involved in importation, acquisition, keeping, release or
marketing of GMOs to provide him information concerning the
activities. Section 117 gives inspectors
the powers to seize and render harmless (by destruction if necessary) any GMO
material considered to be the cause of imminent danger of environmental
damage. Offences Section
118 provides range of offences including acting without a consent or
in breach of conditions, obstructing inspectors, or knowingly making false
statement or false records.There is a due diligence for the core offences.
Maximum sentences are generally on summary conviction a maximum fine of £20,000
and/or six months imprisonment, and on indictment an unlimited fine and/or
imprisonment of up to 5 years. Proceedings for an offence may not be initiated
without the consent of the Secretary of State. Section 119 provides that where the offence
consists of a failure to use the best available techniques not entailing
excessive costs (see s109 and s118 above), the burden of proof is on the
accused to show, in most cases, that there were not better techniques not
entailing excessive costs available. Remedial
orders Section 120 gives a court, upon
conviction, the power to order the defendant to carry out remedial actions in
place of or in addition to any sentence imposed. Section 121 gives the Secretary of State the power
to carry out reasonable remedial action where an offence has been commissioned,
and to recover the costs from any one convicted of the offence. Public Register Section 122
requires the Secretary of State to keep a public register of certain
particulars relating to the regime, including applications for consents,
consents, and any convictions. Section
123 is concerned with exclusions from the register. The Secretary of
State may exclude any matter from the register considered to be contrary to the
interest of national security, or where it might result in damage to the
environment. Commercially confidential information may also be excluded on
application to the Secretary of State, but some core information such as the
location of GMO organisms must always be on the register, even if this might be
commercially confidential. This requirement in relation to information on the
location of GMOs, and on the results of any assessment of the risks of damage
to the environment has been repealed by the Genetically Modified Organisms
(Deliberate Release) Regulations 2002 relating to England, Scotland and Wales.
Part VII of those regulations sets out information required on the register in
this respect. Advisory Committee Delegation of enforcement
functions Functions of Secretary of State
Regulations Definitions Part VII Countryside Council for
Wales This part of the Act used to deal
with the establishment and functions of both English Nature and the Countryside
Agency for Wales. Under the Natural Environment and Rural Communities Act 2006
English Nature was subsumed into a new body established under that Act, Natural
England. As a consequence, Schedule 11 of the 2006 Act makes substantial
amendments to Part VII, leaving most of the references to the Countryside
Agency for Wales only. Section 128
establishes the Council for Wales, and s129 allows the National Assembly of
Wales to give grants to the Council. Sections 130
to 132 described the various functions of the Council, both relating
to countryside matters and nature conservation functions, including the
management of nature reserves, and the provision of advice to the Secretary of
State or other Ministers concerning policies affecting nature conservation in
Wales. Section 133 (relating to
demarcation of functions between the previous conservation bodies) was repealed
by the Natural Environment and Rural Communities Act 2006. Section 134 entitled the Council to give grants or
loans for nature conservation purposes. Sections
135-138 (relating to transfer of property, staff employment and other
matters relating to the previous nature conservation bodies) were repealed by
Natural Environment and Rural Communities Act 2006. Section 139 refers to Schedule 11 which contains
various transitional provisions. Part VIII
Miscellaneous Provisions Prohibition of
Hazardous Substances Restrictions in imports and exports of
waste Information on potentially hazardous
substances Section 143 (contaminated land
registers) was repealed by the Environment Act 1995 which introduced a new
regime for contaminated land now contained in Part IIA of this Act. Section 144 introduces Schedule 13 which contains
various amendments to the Planning (Hazardous Substances) Act 1990 concerning
the storage and use of hazardous substances. Section 145 amends the Water Act 1989 and
Control of Pollution Act 1974 with respect to increased maximum penalties for
certain water pollution offences. Amendments of Marine
Pollution Legislation Section 146 amends
the controls under Food and Environment Protection Act 1985 which require
deposits at sea to be made under licence to ensure that they apply to foreign
as well as British vessels operating within British controlled
waters. Section 147 amends the Food and
Environment Protection Act 1985 by introducing a duty on authorities to
maintain public registers concerning licences and licence application relating
to deposits at sea. Section 148 (relating
to oil pollution from ships) was repealed by Merchant Shipping Act 1995
Schedule 12. Control of Dogs Sections 149-151 introduce new controls over stray
dogs. Section 149 requires every district
and London Borough Council to appoint a stray dog officer. Stray dogs must be
seized and, if there is a name on their collar, their owner given an
opportunity to reclaim the dog on payment of a fee. Unclaimed dogs may be sold
or given to responsible carers or a home for stray dogs, or humanely
destroyed. Section 150 requires anyone
taking possession of a stray dog to return it to its owner, or take it to the
local authority or a local police station. A finder may indicate that they wish
to keep the dog. Section 151 amends the
Animal Health Act 1981 concerning orders requiring dogs in public places to
wear collars. Straw burning Section 152 gives power to the Secretary of State
to make regulations prohibiting or restricting the burning of crop residues
such as straw and stubble on agricultural land. Environmental grants Section
154 relates to superannuation schemes of the Groundwork
Foundation. Section 155 amends the
Transport Act 1968 to allow the chairman of the Inland Waterways Amenity
Advisory Council to be remunerated. Part
IX General Provisions Power to give
effect to EU and international obligations Criminal
liability of directors and senior officers of
companies Criminal liability where offence due to act or
default of others Application
to the Crown Service of Notices Regulations made under the
Act Section 161 provides that regulations
or orders made by the Secretary of State shall be generally be made by
statutory instrument. Amendments to other
legislation Section 162 refers to
Schedules 15 and 16 which amend or repeal provisions in previous legislation as
a consequence of this Act. Financial provisions Section 163 allows for Parliament to provide money
for administrative and other expenses of government departments as a
consequence of this Act. Commencement Section 164 brings a number of provisions of the
Act into force two months after it was passed. Other provisions come into force
by means of Commencement Orders made by the Secretary of State. SCHEDULES Authorisations for processes under Part
I Schedule
2 (which related to waste disposal authorities) was repealed by Clean
Neighbourhoods and Environment Act 2005. National Waste
Strategy Waste Reduction Schemes Schedule 2AA (inserted by Schedule 5 of the Climate
Change Act 2008 – subject to a piloting scheme as provided for in Sections 72
to 75 of that Act and by Order of the Secretary of State bringing the waste
reduction provisions into force generally on such date as is specified) sets
out the detailed rules regarding waste reduction schemes; the purpose of which
described as being to provide a financial incentive to produce less domestic
waste and recycle more of what is produced, thus reducing the amount of
residual domestic waste. Categories of
Waste Statutory
nuisances Schedule 3A (free
distribution of printed matter on designated land) was added by the Clean
Neighbourhoods and Environment Act 2005. Abandoned shopping
trolleys Schedule
5 (which amended the Radioactive Substances Act 1960) was repealed by
the Radioactive Substances Act
1993. Countryside Council for Wales Schedule
7 (which related to the Joint Nature Conservation Committee) was
repealed by the Natural Environment and Rural Communities Act 2006. Amendments of Countryside and Nature Conservation
legislation Schedule 10 (which related
to transfer arrangements to new nature conservation bodies) was repealed by
Natural Environment and Rural Communities Act 2006. Schedule 11 relates to various transitional
provisions concerning the Countryside Council for Wales. Advisory Committee on Hazardous
Substances Amendments of Hazardous Substances
legislation Schedule
14 (which related to oil pollution at sea) was largely repealed by
the Merchant Shipping Act
1995. Consequential and minor amendments Repeals Updated May 2015Environmental Protection Act 1990 (as amended)
Current
22 Mar 2019
Commentary
28/02/2013 Scottish Order (SSI 2013/74) varying Section 153 published.
07/11/2013 Amending regulations (SSI 2013/315) published, increasing fly-tipping and littering fixed penalties for Scotland from April 2014.
07/05/2015 Amending Order SSI 2015/188 published, substituting definition of the EU Waste Directive in relation to Scotland only., 27/05/2015 Amending Order SSI 2015/210 varying Section 153(1) (Financial assistance for environmental purposes) published.
12/02/2016 Amending Regulations (SSI 2016/99) published, amending Section 78YB in relation to Scotland only., 14/03/2016 Amending Regulations (SI 2016/334) published., 26/10/2017 Amending Order ( WSI 2017/1024 ) published.
12/02/2018 Amending Regulations ( SI 2018/171) published., 24/08/2018 Amending Regulations ( SI 2018/942) published.
01/02/2019 Amending Regulations ( SSI 2019/26) published., 22/02/2019 Amending Regulations ( WSI 2019/331) published.
Compliance Dates
15/11/1990 Comes into force on 15/11/1990
05/11/1990 Sections 128 to 139 come into force to the extent stated in the Environmental Act 1990 (Commencement No.1) Order 1990 (SI 1990/2226) (see Section 164) o
05/11/1990, 13/11/1990 Sections 89(7), 89(8), 89(9), 89(11), 89(12) and 89(13) come into force (see Section 164) on 13/11/1990, 19/12/1990 Section 3 comes into force (see Section 164) on 19/12/1990
01/01/1991 Sections 1, 2, 4 to 28, 100 to 105, and 159 come into force (see Section 164) o
01/01/1991, Sections 79 to 85, 97, 99, 140 to 142, 145, 146, 148, 153 to 155, 157, 160, 161, 162(5) and 163 come into force (see Section 164) o
01/01/1991, Sections 105, 162(1) and 162(2) come into force to the extent stated in Section 164(2) (see Section 164) o
01/01/1991, Section 162(2) comes into force to the extent stated in the Environmental Protection Act (Commencement No.4) Order 1990 (SI 1990/2635) (see Section 164) o
01/01/1991, 14/01/1991 Sections 86(2), 86(6) to (8), 86(11), 86(14), 86(15), 88(5), 88(7), 88(9)(b), 89(4), 90(1), 90(2), 90(7), 94(1), 94(2), 96(2), and 96(3) come into force (see Section 164) on 14/01/1991, 14/01/1991 Section 162(1) comes into force to the extent stated in the Environmental Protection Act (Commencement No.5) Order1991 (SI 1991/96) (see Section 164) on 14/01/1991, 13/02/1991 Sections 86(1), 86(4), 86(5), 86(9), 86(13), 87(1), 87(2), 87(3)(a) to (e), 87(4) to (6), 88(1) to (4), 88(6), 88(8), 88(9)(a), 88(9)(c) to (e) and 88(10), 98(1), 98(2), 98(5) and 98(6) come into force (see Section 164) on 13/02/1991
01/04/1991 Sections 128, 130, 132 and 162(2) come into force to the extent stated in the Environmental Protection Act 1990 (Commencement No.6 and Appointed Day) Order 1991 (SI 1991/685) (see Section 164) o
01/04/1991, Sections 86(3), 86(10), 87(7), 89(1)(a) to (f), 89(2), 89(3), 89(5), 89(6), 89(10), 89(14), 91(1)(a) to (f), 91(2) to (13), 92(1)(a) to (c), 92(2) to (10), 93, 94(3) to (9),
Legal Status
The Act introduces framework legislation
which addresses a wide range of environmental concerns including waste
treatment, industrial pollution and prevention controls, air pollution and
statutory nuisance. See the overview for a fuller description of matters
covered by the Act. The various sections of the Act come into force on 1
January 1991 or on dates appointed by the Secretary of State (see Compliance
Dates and Legislation Aims). The Act extends to England and Wales, and also to
Scotland save for Section 45A (‘arrangements for separate collection of
recyclable waste’), Section 45B (‘power to apply Section 45A to Welsh waste
collection authorities’) and Section 47A (‘recycling and composting: duty to
report to Parliament’). The Act extends to Northern Ireland only to the extent
set out in Section 164(4). It has been amended extensively, where specific
amendments are referred to under the Full Consolidated Legal
Summary.Legal Outline
Section 1 defined
core terms used in the provisions concerning IPC and Local Authority controls.
In particular, 'pollution of the environment' is stated to include pollution of
the environment due to the release of any substance capable of causing harm to
man or other living organisms. Harm includes harm to the health of living
organisms, and in the case of human harm, harm to property and as well as any
offence caused to human senses such as smell.
Section
2 gives power to the Secretary of State to make regulations defining
the categories of process to which the authorisation regime will apply. The
Regulations may also prescribe the substances that are released from such
processes which are to be regulated by the authorisations.
Section 3 gives a
broad power to the Secretary of State to make regulations establishing
environmental standards, objectives and requirements in relation to named
processes and substances. Regulations may include environmental quality
objectives or quality standards relating to substances that are released into
any environmental medium. The Section goes on to give the Secretary of State
power to make plans for establishing a limit on the upper amount of any
substance that may be released in the United Kingdom or parts of it, and for
allocating quotas to particular processes.
Section 4 establishes the
division of functions between the Environment Agency (EA) and Local
Authorities. For those processes regulated by the EA, the functions are to be
exercised to prevent or minimise environmental pollution due to releases into
any environmental medium (air, water, and land). For Local Authorities, the
functions are to be exercised to prevent or minimise environmental pollution
due to the release of substances into the air. S5 (dealing with functions in
Scotland) was repealed by Schedule 24 Environment Act 1995.
Section 8 gives power to
the Secretary of State to prescribe fees for applications for authorizations
and for holding the authorisation.
Section 9 allows the person
holding an authorisation to transfer it to another person proposing to carry on
the process in their place. Notice must be given to the enforcing authority
within 21 days of the transfer but no specific prior consent is
required.
Section 10 gives a general
power to enforcing authorities to vary an authorisation at any time, subject to
the overall requirements concerning the objectives and conditions contained in
s7 above. An authority must also vary an authorization when it considers there
is a substantial change in the manner in which the process in carried on which
requires new conditions, but extra procedural requirements (including public
consultation) apply, as contained in para 6 of Schedule 1. Changes are effected
by a variation notice served by the authority and come into effect on the dates
specified in the notice.
Section 12 allows the
enforcing authority to revoke an authorisation at any time. An authorisation
may also be revoked where the process has not been carried on for 12
months.
Sections 13 and 14 give
enforcement powers through the use of notices issued by the enforcing
authority. Under S13 an enforcement notice may be served where conditions of an
authorisation are being breached or are likely to be breached, and failure to
comply with the notice is a criminal offence. Failure to comply with
authorisation conditions is an offence in itself, but the use of enforcement
notices gives an opportunity to rectify the situation without the need for a
criminal prosecution. S14 gives a tougher power to serve a prohibition notice
where the authority considers there is an imminent risk of serious
environmental pollution, whether caused by breach of conditions or by any other
aspect of the process. The notice must specify the risk and the steps needed to
remove it. In the meantime, authorisation for the process (or to the extent
specified in the notice) is suspended, meaning that continuing the process
would be a criminal offence. Appeals against notices can be made to the
Secretary State under s15 below, but they do not have the effect of suspending
the operation of the notice.
Section 15 is a general
provision giving rights of appeal to the Secretary of State, with details
supplemented by Regulations. Appeals may be made against the refusal of an
authorization, the conditions imposed in an authorization, variation or
revocation of an authorization, and against enforcement or prohibition
notices.
Section 16 gives the Secretary of
State power to obtain information from the Environment Agency or local
authorities in connection with his functions under this Part of the Act.
Sections 16-18 were repealed by Environment Act 1995, Schedule 24.
Sections 20-22
contain provisions concerning public registers. S20 requires enforcing
authorities to maintain a public register containing, inter alia, details of
applications for authorizations, authorizations, information obtained under
authorization conditions, appeals, enforcement and prohibition notices, and
details of convictions as may be prescribed in regulations. S21 allows the
Secretary of State to exclude information considered to be contrary to the
interests of national security. S22 allows for the exclusion of commercially
confidential information defined as information that would prejudice to an
unreasonable degree the commercial interests of the person or company carrying
on the business. An application to exclude such information is made by the
business, but it is the enforcing authority or the Secretary of State who
decides whether the information actually is commercially confidential. The
Secretary of State has power to direct that information, though commercially
confidential, should still in the public interest be contained in the
register.
Section
23 creates the criminal offences under this Part of the Act. The core
offences are carrying on a business without an authorization or of breach of
conditions, or failure to comply with an enforcement or prohibition notice.
These offences are strict in the sense that no intention or recklessness need
be proved. Knowingly making false or misleading statements or intentionally
making false records are also offences. Sentence on summary conviction before
magistrates is a maximum £20,000 fine and/or 3 months imprisonment and on
indictment before the Crown Court an unlimited fine and/or a maximum 2 years
imprisonment.
Section 24 gives an extra
enforcement power to an enforcement authority by allowing it to seek an
injunction before the High Court where it feels that criminal proceedings for
failure to comply with enforcement or prohibition notice would be an
ineffectual means of securing compliance. S24 powers can be invoked without the
need to first prosecute, but the High Court is likely to exercise its
discretion to issue an injunction sparingly.
Section 25 provides that where a
business is prosecuted for failure to imply with the general implied condition
of authorizations to use the best available techniques not entailing excessive
costs to prevent or minimize emissions (see s7(4)), the onus is on the business
to proved that no better techniques were available than those actually used.
Section
26 gives a court the power to order someone convicted of the core
offences (carrying on without an authorisation or in breach of conditions, or
failing to comply with an enforcement or prohibition notice) to take such steps
as may be specified to remedy matters. The power may only be invoked upon
conviction, and may be in place of or in addition to any sentence imposed.
Failure to comply with an order is an offence.
Section 27 gives a
general power to the Environment Agency to arrange for the remediation of harm
caused by a commission of a core offence (carrying on without an authorization
or in breach of conditions, or failing to comply with an enforcement or
prohibition notice. Cost of remediation may be recovered for any person
convicted of that offence. These powers may be used only after approval in
writing by the Secretary of State.
Section 28 sets
jurisdictional boundaries between the IPC and the waste management controls
under Part II of this Act by providing that a condition in an IPC authorization
shall not relate to the final disposal on land of waste controlled by Part II.
The section provides a similar boundary between IPC controls and conditions
under Radioactive Substance Act authorizations.
Section 29
defines a number of key terms used in Part II. ‘Pollution of the environment’
is defined to mean pollution due to the release or escape in land, water, or
air of controlled waste capable of causing harm to man or any other living
organisms supported by the environment. Harm includes offences to human senses
(e.g. smell) or damage to property.
Sections
30-32 contains details about the various waste authorities involved
in the waste management system under this Part. The Environment Agency is the
waste regulation authority in England and Wales. The basic principles in that
county councils or metropolitan district councils in England and district
councils in Wales are waste disposal authorities (but with variations for
London, and certain metropolitan areas). District or London Borough councils
are waste collection authorities. S31 dealing with regional waste authorities
was repealed by Environment Act 1995 Schedule 24. Section 32, together with
Schedule 2, deals with transitional arrangement requiring waste disposal
authorities to organize the carrying out of waste disposal operations through
arms length waste disposal companies, and the procedures for putting waste disposal
contracts to public tender. Section 32 was repealed by Clean Neighbourhoods and
Environment Act 2005, Schedule 5.
Section 33 contains the core
waste disposal offences at the heart of the system based on licensing system of
control. In relation to England and Wales, this Section has been extensively
amended by the Environmental Permitting (England and Wales) Regulations 2007
(SI 2007/3538) and The Clean Neighbourhoods and Environment Act 2005.
Section 34 is a
companion to the core s33 prohibitions and is designed to ensure that once
produced waste remains within a legitimate chain until final authorised
disposal. It imposes a duty of care on importers, producers, carriers, and
brokers to take all reasonable measures to ensure that others do not breach
s33, that any transfer of waste is to an authorized person, and that sufficient
written information is provided on transfer to avoid commission of s33
offences. The Secretary of State is given the power to issue a Code of Practice
in relation to the Duty of Care. The Environmental Permitting (England and
Wales) (Amendment) Regulations 2009 (SI 2009/1799) inset sub-Section 1A, which
places a duty in relation to extractive waste.
Sections 35-43 are
concerned with waste management licences, the key regulatory mechanism for
ensuring the control of waste disposal and waste management. The Environmental
Permitting (England and Wales) Regulations 2007 (SI 2007/3538) repealed most of
these sections.
Section
35 contains general provisions concerning waste management licences
to be granted for the treating, keeping or disposal of controlled waste. Where
waste is treated, kept, or disposed of on land, the licence is granted to the
occupier of the land; where a mobile plant is used for treatment or disposal,
the licence is granted to the operator. Licence conditions may relate both to
the authorised activity and precautions or other activities carried in
connection with these activities, and may require third parties to give rights
to the holder in order to comply with the conditions. Once granted, a licence
may not be surrendered by the holder otherwise than in accordance with the
procedures under s39, nor is it transferable to another person other than by
the Environment Agency (EA). The licence continues in force until it is revoked
by the EA under s38, or its surrender accepted. The Section contains offences
for making false entries on records required to be kept under the licence. This
Section was repealed by the Environmental Permitting (England and Wales)
Regulations 2007 (SI 2007/3538).
Section
35A (inserted by the Environment Act 1995) requires the holder of a
licence to pay compensation to a third party who is required to give the holder
rights to ensure that the licence conditions are complied with. The Secretary
of state may make regulations describing the loss and damage fro which
compensation is payable. This Section was repealed by the Environmental
Permitting (England and Wales) Regulations 2007 (SI 2007/3538).
Section
36 requires applications for licences to be made to the Environment
Agency (EA) on payment of a charge in accordance with its charging scheme.
Licences may not be issued for the use of land unless any necessary planning
permission is in force. The EA must be satisfied that the applicant is a 'fit
and proper person', a term that receives more elaborate definition in s74, and
essentially requires that the applicant has not been convicted of certain waste
or pollution offences defined in regulations (under s74 the EA is entitled to
overlook such convictions in appropriate cases), that the management of the
activities will be in the hands of technically competent persons, and that
there is adequate financial provision for the discharge of the licence
obligations. Once satisfied that the applicant is a fit and proper person, the
EA may only reject the application if it is satisfied rejection is necessary to
prevent pollution of the environment, harm to human health, or, where no
planning permission is necessary, serious detriment to local amenities. This
Section was repealed by the Environmental Permitting (England and Wales)
Regulations 2007 (SI 2007/3538).
Section
36A (inserted by the Environment Act 1995) requires Environment
Agency to consult with third parties where they are considering granted
conditions that would require such parties to grant rights (such as rights of
entry onto land) to the holder in order to comply with the conditions. This
Section was repealed by the Environmental Permitting (England and Wales)
Regulations 2007 (SI 2007/3538).
Section 37 entitled the
Environment Agency (EA) to change licence conditions at any time where this is
unlikely to impose unreasonable expense on the holder, and they may also vary
on the application of the licence holder. The EA is required to modify
conditions to prevent pollution, harm to human, or serious detriment to local
amenities. This Section was repealed by the Environmental Permitting (England
and Wales) Regulations 2007 (SI 2007/3538).
Section 37A (inserted by
Environment Act 1995) mirrors s 36A and requires the Environment Agency to
consult third parties who might be required to grant rights to holders as a
result of a proposed variation. This Section was repealed by the Environmental
Permitting (England and Wales) Regulations 2007 (SI 2007/3538).
Section
38 allows the Environment Agency (EA) to revoke a licence totally or in
part on 2 grounds: (a) the licence holder is no longer a fit and proper person
by reason of being convicted of a waste or pollution offence defined in
Regulations (see s74 below); (b) continuation of the activities would cause
environmental pollution, damage to human health, or be seriously detrimental to
local amenities, and such pollution, damage, or detriment cannot be avoided by
varying the licence conditions. As an alternative to revocation, the EA is
entitled to suspend the licence, though it may still require the holder to take
preventative steps during the period of suspension. The grounds for suspension
are that, either the holder is no longer a fit and proper person because
management is not in the hands of a technically qualified person, or that there
is a continuing risk of serious environmental pollution or serious harm to
human health. This Section was repealed by the Environmental Permitting
(England and Wales) Regulations 2007 (SI 2007/3538).
Section 39
allows the surrender of site licences only where the Environment Agency (EA)
decides to accept the surrender. The EA may only accept surrender if it is
satisfied that the condition of the site, resulting from the waste activities,
is unlikely to cause environmental harm or damage to human health. This Section
was repealed by the Environmental Permitting (England and Wales) Regulations
2007 (SI 2007/3538).
Section 40 allows the holder of
a licence to transfer it to another person but only with the agreement of the
Environment Agency. A joint application is made to the Agency who must allow
the transfer if satisfied that the proposed transferee is a fit and proper
person. This Section was repealed by the Environmental Permitting (England and
Wales) Regulations 2007 (SI 2007/3538).
Section
42 imposes a duty on the Environment Agency (EA) to ensure that
licence conditions are complied with, and to ensure that authorized activities
do not cause environmental pollution, damage to human health, or serious
detriment to local amenities. In emergencies, the EA may carry out work needed
to comply with these duties and recover the costs from the licence holder.
Where licence conditions are not being complied with, the EA may serve a notice
specifying steps to be taken to remedy the non-compliance, in addition to or
instead of a criminal prosecution under s33 above. This Section was repealed by
the Environmental Permitting (England and Wales) Regulations 2007 (SI
2007/3538).
Section
43 allows for appeals to the Secretary of State for Environment,
Food, and Rural Affairs. Appeals can be made in respect of refused licence
applications, conditions imposed in a licence, modification or suspension of
licences, revocation of licences, and where a surrender or transfer application
is refused. This Section was repealed by the Environmental Permitting (England
and Wales) Regulations 2007 (SI 2007/3538).
Section 44 makes it
a specific offence to knowingly or reckless provide false or misleading
information in connection with a licence (application, variation. surrender or
transfer), or in response to a requirement to provide information. The
Environmental Permitting (England and Wales) Regulations 2007 (SI 2007/3538)
repealed part of this Section so that this offence no longer applies with
respect to the application, variation, surrender or transfer of a licence. In
addition, the part of this Section relating to the offence of intentionally making
a false entry in any required record of a licence was repealed by those
Regulations.
Section
44A requires the Secretary of State to prepare a national waste
strategy covering England and Wales containing his policies relating to the
recovery and disposal of waste, with a similar provision for Scotland, prepared
by the Scottish Environment Protection Agency. The strategy must contain a
statement of policies designed to achieve the recovery and disposal of waste
without endangering human health or the environment, ensuring an integrated and
adequate network of waste disposal installations, and encouraging the
prevention or reduction of waste, and encouraging recycling and reuse of waste,
and use of waste as an energy source. The Secretary of State may give
directions to the Environment Agency regarding, for example, what is to be
placed in the strategy. The Environmental Permitting (England and Wales)
Regulations 2007 (SI 2007/3538) inserted subsection 8A, which requires the
Environment Agency to publicise those directions.
Section 57
gives the Secretary of State a general power to require the holder of a waste
management licence to accept particular consignments of waste, and to require
anyone holding waste on land to deliver it for disposal or treatment at a
specified place. The Environmental Protection Act 1990 (Amendment of Section
57) (England and Wales) Regulations 2005 (SI 2005/3026) makes a number of changes to Section
57 in relation to England and Wales, including extending the power of the
Secretary of State to include those holding a waste permit and amending
references to ‘controlled waste’ are replaced by ‘waste’. Failure to comply
with a direction from the Secretary of State is a offence with a maximum fine
of £5,000. S58 gives similar powers in Scotland requiring waste disposal
authorities to keep or accept waste at specific places.
Section 59 is concerned with
illegal fly-tipping, and gives the Environment Agency or local waste collection
authorities the power to require an occupier of land to remove illegally
deposited waste and to take steps to remediate the consequences of the illegal
deposit. The occupier is entitled to appeal to the local magistrates court
within 21 days, and is entitled to have the requirement quashed if the court is
satisfied the occupier was not responsible for the deposit or did not knowingly
cause or allow it to take place. The London Local Authorities Act 2007, s25, has
substituted this requirement so that the court has to be satisfied that the
appellant took all reasonable precautions and exercised all due diligence to
avoid the deposit of the waste, but the amendments made will not apply until a
code of practice dealing with the above substitution has been published by
joint committee, and shall not apply to certain notices. Subsection 3A is
added, and relates to the situation where the allegation that the depositing of
the waste was due to the act or default of another person. In serious cases,
the authorities may carry out the removal themselves and seek to recover costs
from the occupier unless they can show they were innocent of the deposit.
The Clean Neighbourhoods and Environment Act 2005, s50, adds
59ZA in England and Wales, concerning supplementary powers in relation to the
owner of land. The Environmental Permitting (England and Wales)(Amendment)
Regulations 2009 (SI 2009/1799) insert a reference to extractive waste (in addition
to controlled waste).
Section 60 creates an offence
with a maximum fine of £1,000 (Level 3) of sorting or disturbing waste
contained in Local Authority sites or in receptacles provided by authorities or
contractors without consent.
Section 63 gives
the Secretary of State the power to make regulations applying provisions of
this Part of the Act to defined categories of waste other than controlled waste
(household, commercial, and industrial).The subsection relating to this power was
repealed in relation to England and Wales by the Waste Management (England and
Wales) Regulations 2006 (SI
2006/937), Regulation 2.
Sections 64-66 are concerned
with the provision of public registers. Under s64, the Environment Agency must
maintain a public register containing, inter alia, details of licences, licence
application, applications and notices relating to modifications, notices of
revocation, appeals, and convictions of licence holders for offences under this
Part of the Act. This Section was repealed by the Environmental Permitting
(England and Wales) Regulations 2007 (SI 2007/3538).
Section 71 gives power to the
Environment Agency or the Secretary of State to require anyone to supply them
with information reasonably needed in connection with their functions. Failure
to comply with such a requirement is a summary offence with a maximum fine of
£5,000, or, in indictable, an unlimited fine and/or up to 2 years
imprisonment.
Section 73
provides that appeals from decisions of magistrates' courts under particular
provisions of this Part of the Act go to the Crown Court. The decisions are
those under s46 and s47 (requirements concerning receptacles for waste) and s59
(removal of illegally deposited waste from land).
Section 74 elaborates the meaning
of a 'fit and proper person', one of the requirements of a licence holder under
s36 above. To be a fit and proper person, the applicant must not been convicted
of certain waste or pollution offences defined in regulations (under s 74 the
Agency is entitled to overlook such convictions in appropriate cases), t the
management of the activities must be in the hands of technically competent
persons, and there must be adequate financial provision for the discharge of
the licence obligations, which will include responsibilities after the closure
of the site in question. The Environment must have regard to any Guidance
issued by the Secretary of State in making decisions concerning fit and proper
persons. This Section was repealed by the Environmental Permitting (England and
Wales) Regulations 2007 (SI 2007/3538).
Section 75 provides a number of
core definitions. "Waste" is defined as any substance or object which
the holder discards and which is contained in Schedule 2B of the Act which
reproduces Annex I of the EU Waste Directive 75/442/EEC, as amended. Sub-Section 3, which
relates to the presumption that anything discarded is waste unless the contrary
is proved, was repealed by Environment Act 1995, Schedule 24.
"Controlled" waste means household, commercial or industrial waste
and each of these terms receives further definitions. The Waste Management
(England and Wales) Regulations 2006 (SI 2006/937) makes changes so that waste
from any mine or quarry or from premises used for agriculture within the
meaning of the Agriculture Act 1947 now falls under the definition of
“industrial waste”, instead of ‘commercial waste’ (in relation to England and
Wales). The Waste (Scotland) Regulations 2005 (SSI 2005/22) make similar changes with respect to
Scotland. Further guidance of the meaning of waste is to found in the DOE Circular
11/94, and on the DEFRA web-site which include a summary of judgments of the
European Court of Justice on the meaning of waste. This Section has been
further amended by the Waste (Meaning of Hazardous Waste and European Waste
Catalogue) (Miscellaneous Amendments) (Scotland) Regulations 2015 (SSI 2015/188), which
updates the definition of the EU Waste Framework Directive in relation to
Scotland only.
Section 78A provides core
definitions of terms used in the new regime. "Contaminated land" is
land that appears to the local authority to be in such a condition because of
the presence of substances that significant harm is being caused or is likely
to be caused or that significant pollution of surface or ground waters is being
caused or is likely to be caused. The term 'significant' was added to the water
pollution limb of the definition in Scotland by the Contaminated Land
(Scotland) Regulations 2005 (SSI 2005/658). Although s86 Water Act 2003 makes a
similar amendment in relation to England and Wales, the amendment is not yet in
force. "Harm" is harm to the health of living organisms, other
interferences with ecological systems, and harm to property, but in deciding
whether such harm is 'significant' authorities must have regard to Guidance
issued by the Secretary of State. The Contaminated Land (Scotland) Regulations
2005 (SSI 2005/658) makes a number of other changes to this section, including
adding subsection 4A, which gives ‘harm’ in relation to the water environment
the same meaning as in s20(6) of the Water Environment and Water Services (Scotland) Act
2003. "Pollution" in relation to waters means the entry
into water of any poisonous, noxious, or polluting matter, or any solid waste
matter.
Section 78B requires local
authorities (unitary authorities or district councils) to carry out inspections
from time to time to identify land that is contaminated, and in accordance with
Guidance issued by the Secretary of State. Once such land is identified, the
authority must notify the Environment Agency, the owners of the land, the
occupier of the land, and anyone else considered to be an "appropriate
person". Appropriate persons are essential those who may bear legal
responsibility for remediation, and are further defined in s78F below. Section
78YB is amended by the Water Environment (Amendment of Part IIA of the
Environmental Protection Act 1990: Contaminated Land) (Scotland) Regulations
2016 (SSI 2016/99)
to clarify the circumstances in which it is more appropriate to take
enforcement action under the Water Environment (Controlled Activities) (Scotland)
Regulations 2011 (SSI
2011/209) rather than serve a remediation notice under this
Part.
Section
78C requires the authority to decided whether any identified
contaminated land should be designated a "Special Site" for handling
by the Environment Agency (EA) rather than the local authority. The criteria
for a Special Site are provided in regulations made under this section and
encompass sites whether the harm is serious rather than significant and where
the EA has special expertise. Before making such a decision, the authority must
seek the advice of the EA, and the EA may also give notice to the authority of
any contaminated land which it considers would be designated a Special Site.
Section 78E requires the authority
(the local authority or, in the case of Special Sites, the Environment Agency)
to serve a remediation notice on a person considered to be an "Appropriate
Person" (see 78F below) specifying what must be done by way of remediation
and the time limits for doing so. Where two or more persons are identifying as
bearing responsibility, the notice must specify the proportion of the costs
which each must bear, as determined under s78F below.
Section 78F
is a critical provision that identifies who is the 'appropriate person" to
bear responsibility for remediation. The primary responsibility is placed on
the person who caused or knowingly permitted the presences of substances that
gave rise to the contamination, but only to the extent of the contamination
caused by the substances for which they were responsible - in that respect,
there is no joint liability where substances came from a number of different
sources. If, however two or more persons were responsible for the same
contaminating substances, liability is apportioned in accordance with Guidance
issued by the Secretary of State. If the person with primary responsible cannot
be identified after reasonable inquiry, then responsibility falls on the
current owner or occupier, but the enforcing authority can refrain from
imposing such liability where this would cause undue financial
hardship.
Section 78G makes clear that a remediation
notice may contain requirements that will mean the responsible person will need
to exercise rights (such as those of entry) onto third party land. In such
cases the third party must grant any rights needed to comply with the
requirements of the notice, but is entitled to seek compensation from the
responsible person.
Section 78H requires the
enforcing authority to take reasonable steps to consult the persons on whom a
notice is to be served, and current owners and occupiers as to what is to be
done by way of remediation. The section goes on to prescribe a number of
circumstances in which a notice may not be served. The most significant are:
(a) where the remediation will be carried out voluntarily (b) where remediation
is not reasonable bearing in mind the costs involved and the seriousness of the
contamination (see s78E above) (c) where the authority carries out the
remediation itself having regard to the provisions of s 78N below, which
includes a financial hardship test.
Section
78J is designed to ensure that where the contamination results gives
rise to water pollution (the second limb of the definition of contaminated land
in s 78A above), the person served with a remediation notice is not required to
do anything beyond remediation relating to health of living organisms,
interference with ecological systems, or damage to property. The aim is to
prevent duplication with the clean-up powers under s161 Water Resources Act 1991.
The section contains a similar provision to prevent additional liability in
respect of water from abandoned mines to the extent there is no liability under
the Water Resources Act for such pollution.
Section 78K is concerned
with the situation where the contamination has spread from its original
location and appeared in other land. Primary liability for clean-up still rests
with the person who caused or knowingly permitted the original presence of the
substances. If that person cannot be found, the innocent owner or occupier of
the original land is only liable to remediate his own land rather than the land
to which contaminated have migrated. The owner or occupier of the land to which
migration has taken place is liable for remediation of their land if the
original polluter cannot be found.
Section 78L allows for
appeals to be made against the service of a remediation notice. Grounds of
appeal are elaborated in the Contaminated Land (England) Regulations (SI 2006/1380). Appeals
against Local Authority notices were originally made to local magistrates
courts but in 2005 the law was amended, and appeals in relation to both local
authority and Special Sites go to the Secretary of State.
Section 78M creates a
general offence of not complying with a remediation notice without reasonable
excuse. Where the contaminated land is industrial, trade or commercial
premises, the maximum fine is £20,000 (unless increased by order by the
Secretary of State) and to a further daily fine of up to £2,000 for continuing
failure upon conviction. In the case of other premises, the maximum fine is
£5,000, with a continuing maximum daily fine of £500. Where other parties are
liable to pay a proportion of the remediation costs, it is defence to prove
that the reason for non-compliance was due to the fact that the other parties
refused to bear their proportion of liability.
Section
78N defines the circumstances in which an enforcing authority may
carry out the remediation itself. They include situations where (i) there is
imminent danger of serious harm or water pollution (ii) the person responsible
agrees to pay for the cost of doing so (iii) the person served with a notice
fails to carry out the required remediation (iv) no responsible person can be
found and (v) where in view of financial hardship or other considerations in
guidance issued by the Secretary of State (s78P below) the authority decides
not to recover reasonable costs of remediation or only a proportion of them.
This last provision is likely to be especially relevant where, because the
original polluter cannot be found, the innocent current owner or occupier of
the land would be held liable.
Section 78P entitles the
enforcing authority to recover the costs of remediation from the responsible
parties where it carries out remediation work itself under the previous
section. Bit in deciding whether to recover such costs, the authority must have
regard to any hardship that the recovery might cause, and to any guidance
issued by the Secretary of State.An appeal against cost recovery may be made to
the county court.
Section 78Q deals with the
situation where after a remediation has been served, the site becomes a Special
Site and the responsibility of the Environment Agency. Essentially, the Agency
may adopt the remediation notice served by the Local Authority.
Section 78R requires
enforcing authorities to maintain registers containing various pieces of
information concerning the contaminated land regime. These include remediation
notices, appeals, and convictions of offences. S78S allows the Secretary of
State to exclude information considered contrary to the interests of national
security. S78T allows the exclusion of information considered by the enforcing
authority or on appeal the Secretary of State to be commercially confidential.
Commercial confidential information is defined as information that would
prejudice, to an unreasonable degree, commercial interests. Even if such
information is confidential, the Secretary of State may still direct that it be
included in the register on the grounds of public interest.
Section
78U requires the Environment Agency (EA) to publish a report from
time to time on the state of contaminated land in England and Wales. Local
Authorities are obliged to co-operate with the EA in supplying it information
needed for the task.
Section 78V gives the Environment
Agency power to issue site specific guidance to Local Authorities concerning
their powers and duties. Local Authorities may ignore the guidance if it is
inconsistent with guidance issued by the Secretary of State.
Section
78W gives power to the Secretary of State to issue guidance to the
Environment Agency with respect to its powers and duties concerning
contaminated land.
Section
78X contains provisions relating to three situations: (a) where 2 or
more sites, each of which on their own would not be contaminated land, have the
combined effect of being so, the authorities may deal exercise their powers in
relation to each site (b) where pollution is being caused or is likely to be
caused with an authority's area from adjacent contaminated land outside its
jurisdiction, it may exercise the powers in relation to that site, provided
this does not prejudice the functions of the adjacent local authority and (c)
insolvency practitioners, official receivers and similar persons are protected
from personal liability under the regime unless the contamination was due to an
unreasonable act or omission attributable to him.
Section 78Y provides that the
regime does not apply to the Scilly Isles unless the Secretary of State makes
an order.
Section
78YA requires the Secretary of State to consult the Environment
Agency and any other appropriate persons before issuing any guidance under this
Part of the Act, and to lay draft guidance before Parliament. It should be
stress that in many instances the status of the Guidance is legally more
significant that simply policy guidance or a Circular since the statutory
provisions expressly refer to the Guidance. Current Guidance is contained in
Defra Circular 01/2006
Environmental Protection Act 1990: Part 2A Contaminated Land
(September 2006).
Section 78YB deals
with situations where authorities have powers, under other legislation to deal
with significant harm or water pollution. If remedial powers could be exercised
to deal with significant harm or water pollution under the IPC regime under
Part I or the PPC regime under the Pollution Prevention and Control (England
and Wales) Regulations 2000 (SI
2000/1973), those powers must be exercised in preference to the
contaminated land regime. There is a similar non-duplication provision in
respect of sites covered by a waste management licence under Part II of this
Act, and where enforcement action could be taken under the waste powers.
Although the Environment Agency has powers under s161A-D Water Resources Act
1991 to served remediation notices in respect of water pollution, there are no
express provisions dealing with potential overlap of these powers and the
contaminated land regime, other than a provision that a remediation notice
under the contaminated land regime cannot interfere with discharge
authorization granted under the Water Resources Act 1991. Land in a
contaminated state under the regime cannot be a statutory nuisance (see s79
(1)(A) and (B)).
Section 78YC
provides that the contaminated land regime does not apply to harm or water
pollution attributable to radioactivity, except to the extent provided in regulations.
The Radioactive Contaminated Land (Modification of Enactment)(England)
Regulations 2006 (SI
2006/1379) have now applied the regime in a modified form where
radioactivity is a cause or possible cause of harm to humans.
Section 79 defines what are
statutory nuisances for the purposes of the Act. Provided they are prejudicial
to health or a nuisance, the following are included; (a) any premises in such a
state (b) smoke, fumes or gas emitted from premises; (c) any dust, steam, smell
arising on industrial, trade or business premises (d) any accumulation or
deposit (e) keeping of animals (f) insects coming from defined industrial,
trade or business premises (g) artificial light emitted from premises (h) noise
emitted from premises, or caused by a vehicle, machinery or equipment in a
street and (i) any other matter declared in legislation to be a statutory
nuisance. The Clean Neighbourhoods and Environment Act 2005, sections 101 and
102, adds subsections 5A and 5B to provide exceptions to the above categories
of statutory nuisances (in relation to England and Wales); and similarly, the
Noise and Statutory Nuisance
Act 1993, section 2, adds subsection 6A to provide exceptions to the
above.
Section 80 is the core enforcement
provision. Once a local authority is satisfied that a statutory nuisance exists
or is likely to occur or recur, it is obliged to serve abatement notice
requiring the abatement or prevention of the nuisance and the carrying out any
necessary remedial works within any time-limits specified in the notice. The
notice is served on the person responsible for the notice, but if they cannot
be found or the nuisance has not yet occurred, on the owner or occupier of the
premises. If the nuisance relates arises from structural defects, notice is
served on the owner of the premises. An appeal may be made to the local
magistrate's court within 21 days. Failure to comply with a notice without
reasonable excuse is an offence. In relation to nuisances arising on
industrial, trade or business premises the maximum fine is £20,000. In the case
of other nuisances, the maximum fine is £5,000 (Level 5 standard scale). There
is a maximum £500 daily fine for as long as the nuisance continues after a
conviction. In relation to industrials, trade or business premises the defence
of using 'best practicable means' to prevent or counteract the effect of the
nuisance is available for some of the nuisance categories, including noise,
smell, and dust.
Section 80A provides specific
procedures for where the source of a noise nuisance is an unattended vehicle or
equipment in the street such as a ringing burglar alarm. The notice is served
on the person responsible for the vehicle or equipment, or if they cannot be
found can be served by fixing the notice on the vehicle or equipment. Schedule
3 of the Act gives additional powers to the local authority to enter the
vehicle or equipment by force in necessary or remove it.
Section
81 gives power to the local authority to take remedial steps
themselves where a notice has not been complied with, and to recover the costs
of doing so from the person by whose act or default the nuisance was caused. If
that person was the owner of the property, then costs are recoverable from
whoever is the current owner. Even if it is exercising these powers, the
authority is still entitled to bring criminal proceedings in respect of the
non-compliance, and in extreme cases may seek an injunction from the High Court.
S81 also provides a number of supplementary provisions dealing with cases where
more than one person is responsible for the nuisance, or where the nuisance
occurs outside the area of the Local Authority.
Section 82 entitles any
aggrieved person to make a complaint to the magistrates court concerning an
existing statutory nuisance, but before doing so they must first give the
person responsible or the owner at least 21 days advance notice, or 3 in the
case of a noise nuisance. This gives an opportunity for the matter to be
settled without court proceedings. If the court is satisfied that the nuisance
exists or is likely to recur, the court must made an order requiring the person
to abatement the notice and exercise necessary remedial works within a time
specified, and may also impose a fine of up to £5,000. If the nuisance is
proved to have existed at the date of the making the complaint, the court must
order the defendant to pay the complaint's reasonable incurred costs in bring
the proceedings.
Section 86 defines as the
principal litter authorities county councils, district councils, London borough
councils, and the Common Council of London. "Relevant land" for the
purposes of the provisions is and that is open to the air to which the public
are entitled or allowed to have access (with or without payment) and under
direct control of the authority. Land belong to a statutory undertaker to which
the public have access is also relevant land, as is land belonging to certain
designated educational bodies.
Section 87 creates the core
offence of dropping and leaving litter in a public open place, the highway,
relevant land of the authority, statutory undertakers, or the Crown, or on relevant
land within a litter control area designated under s90 below. The maximum fine
is £2,500 (Level 4).
Section 88 entitled an officer
of a litter authority to serve a fixed penalty notice on someone who has reason
to believe has committed a litter offence in place of criminal
proceedings.
Section 89
imposes a general duty on local authorities to keep highways and relevant land
clear of litter and refuse as far as practicable. The duty extends to statutory
undertakers and designated educational establishments in respect of their
relevant land, and to occupiers of relevant land within a litter control area
designated under s90 below. The Clean Neighbourhoods and Environment Act 2005
repeals subsection (1)(g), which referred to the duty of occupiers of any relevant
land within a litter control area of a local authority in England and Wales.
Private individuals may enforce this duty by making a complaint to the local
magistrates' court under s91 below.
Section 90 gives litter authorities
the power the declare litter control areas where the presence of litter is
detrimental to local amenities. The areas may only cover descriptions of land
prescribed by the Secretary of State. Once declared, occupiers of such land are
under a duty to keep in free from litter under S89 and the litter authority may
enforce the duty by serving a notice under s92 below. This Section is repealed
in England and Wales by the Clean Neighbourhoods and Environment Act 2005,
Schedule 5.
Section 91 allows anyone who is
aggrieved by litter or refuse to make a complaint to a magistrates' court
against the authority or other body with clean up duties under s 89 above. At
least 5 days prior notice must be given to the body concerned. The court has
power to issue a litter abatement order requiring the litter to be cleared up.
The Clean Neighbourhoods and Environment Act 2005, Schedule 5, repeals
subsection (1)(g) of this section concerning complaints related to any relevant
land within a litter control area of a local authority.
Section
92 gives litter authorities to power to enforce the clean-up duties
under s89 in respect to other bodies by serving a letter abatement notice. The
notice may also be served on occupiers of designated premises within a litter
control area. The Clean Neighbourhoods and Environment Act 2005, Schedule 5,
repeals parts of this section in England and Wales so that the duty to serve a
litter abatement notice no longer extends to any relevant land within a litter
control area of a local authority; and the notice need not be served in any
other case, on the occupier or owner of land. Failure to comply with a notice
is a criminal offence with a maximum penalty of £2,500. If the notice is not
complied with, subject to a number of exceptions, the authority may itself
clear up the litter and charge the costs to the person served with the
notice.
Sections
92A-C, introduced under Part 3 of Clean Neighbourhoods and
Environment Act 2005 strengthen powers concerning the clearing of litter in the
open air. Under s92A a litter authority may serve a litter clearing notice on
occupiers or owners of such land to remove litter within a period of not less
than 28 days. The authority must be satisfied that the land is defaced by
litter so as to be detrimental to the local amenity. Notices may not be served
in respect of highways, Crown land, relevant land of a statutory undertaker or
educational establishment. S92B gives rights of appeal against such notices to
a local magistrates court. S92C creates an offence of failing to comply with a
litter clearing notice with a maximum fine of £2500 (level 4). Under s94A below,
fixed penalty notices may be served in place of criminal proceedings. Where a
notice has not been complied with, the authority may clear up the litter itself
and charge the person served with the notice for the costs of doing
so.
Section
93 gives power to litter control authorities to serve notices to
prevent the accumulation of litter on streets or open land. The notice is
served on occupiers or owners of premises with a frontage on the street, but under
S94 the Secretary of State may make regulations describing the types of
commercial or retail premises that can be served with a notice and the maximum
areas of land to be included. Failure to comply with a notice entitled the
authority to seek an order from the magistrates' court, and failure to comply
with such an order is an offence with a maximum penalty of £2,500. This part of
Section 94 is amended by the Clean Neighbourhoods and Environment Act 2005.
s21, so that a person commits an offence if, without reasonable excuse, he
fails to comply with a requirement imposed on him by a notice; and is thereby
liable to a maximum fine of £2500.
Section 94B introduced under Part
3 of Clean Neighbourhoods and Environment Act 2005 brings into effect new
provisions in Schedule 3A relating to the control of the distribution of free
printed matter. These provisions allow a litter authority after consultation to
designate land its area where free printed matter may only be distributed with
the prior consent of the authority. This does not include printed matter that
is placed inside letter boxes, but covers matter distributed to the public or
placed on vehicles. Distribution without consent is an offence with a maximum
penalty of £2,500 (level 4), and fixed penalty schemes may be applied. Consent
for distribution need not be given where the proposed distribution would lead
to defacement of the designated land, or where the person seeking consent has
been convicted on an prior distribution offence within the last 5
years.
Section
95 requires litter authorities to keep public registers containing
details of a litter control areas declared, and any street control notices
served. The Clean Neighbourhoods and Environment Act 2005, Schedule 5, amends
parts of this section so that it is no longer necessary for litter authorities
in England and Wales to keep public registers in relation to declared litter
control areas; but they must in relation to designated land.
Section 96 gives power the
Secretary of State to apply provisions of Part II of the Act relating to waste
management to litter and refuse collected by authorities and bodies as if it
were controlled waste.
Section 97 is
concerned with transitional arrangements and the new clean-up duties under
s89.
Section 97A introduced under Part
3 of Clean Neighbourhoods and Environment Act 2005 allows for regulations to be
made concerning, inter alia, the range of fixed penalties that may be imposed
under these provisions.
Section
97B introduced under Part 3 of Clean Neighbourhoods and Environment
Act 2005 excludes authorities from liability to owners and occupiers where they
have cleaned up litter themselves where notices have not been complied with,
provided they have exercised their powers in good faith and with all due
care.
Section
98 defines a number of key terms used in this Part including
educational institutions. Various amendments have been made to these
definitions, and the definition of ‘appropriate persons’, ‘litter’ and
‘relevant railway asset have been added to this Section.
Section
99 gives Local Authorities to make a resolution applying the provisions
in Schedule 4 of the Act within their area. These provisions give the power to
remove abandoned shopping trolleys found in the open air, and to charge their
owners for their return.
Section
106 states that the core purpose of the controls is to prevent or
minimize damage to the environment that could arise from the escape or release
of genetically modified organisms. Core terms such an organism and genetically
modified are defined. Subsections (5) and (6), which related to techniques of
genetic modification, were repealed by the Genetically Modified Organisms
(Deliberate Release) Regulations 2002 for England (SI 2002/2443), Scotland (SSI 2002/541) and Wales
(SI
2002/3188).
Section
108 imposes a duty on anyone who imports, acquires, releases or
markets any GMO to carry out a prior risk assessment, and to give advance
notice to the Secretary of State in cases prescribed in regulations. The
Secretary of State (or by the Secretary of State and the Foods Standards Agency
acting jointly) may grant certain exemptions to these Regulations.
Section 109
imposes a number of general duties on anyone proposing to import, acquire, keep,
release or market a GMO. Those importing or acquiring GMOs must take all
reasonable steps to identify the risks involved, and may not import or acquire
the GMOs if despite precautions there is a risk of environmental damage. Those
keeping GMOs are under a duty to take reasonable steps to keep themselves
informed of potential environmental risks, and to cease keeping the GMOs if
despite precautions there is a risk of environmental damage. They must also use
the best available techniques not entailing excessive costs to keep the GMOs
under control and prevent release. Those proposing to release a GMO must
similarly keep themselves informed of potential risks resulting from the
release, refrain from release if despite precautions there is a risk of
environmental damage, and use the best available techniques not entailing
excessive costs to prevent any environmental damage caused by
release.
Section 110 give the Secretary of
State the power to impose a prohibition notice to prevent someone importing,
acquiring, releasing, marketing, or keeping a GMO if he considers an risk of
environmental damage is involved.
Section 111 is the core
of the regulatory controls, and provides that in cases prescribed in
regulations, consent must be obtained from the Secretary of State for anyone
who imports, acquires, releases or markets a GMO. The Secretary of State may
require such an applicant to provide further information relevant to the
application; and before a decision is made, the applicant for consent must keep
the Secretary of State informed of any new information concerning risks. The
Secretary of State has power to revoke a consent or vary conditions at any
time.
Inspectors
are give a range of supplementary powers including taking samples and requiring
the provision of information and records. Answers given to questions during the
course of inspection are not admissible in criminal proceedings against the
person providing the information.
Section
124 requires the Secretary of State to appoint an expert committee to
advise him on the exercise of his functions under the GMO regime.
Section 125 entitled the
Secretary of State to delegate his enforcement functions, including the
appointment of inspectors, to any public authority.
Section 126 which was
modified Schedule 3 of Food Standards Act 1999 requires that the Food Standards
Agency be consulted before any regulations, other than those relating to fee
charging schemes under s113 above.
Section 127 provides
a number of further definitions of terms used in this part, including
"acquire". The Genetically Modified Organisms (Deliberate Release)
Regulations 2002 for England (SI 2002/2443) and Wales (SI 2002/3188) amends the
part of this Section which relates to the application of this Part of the Act
to the territorial sea adjacent to Great Britain.
Section 140 gives
the Secretary of State extensive powers to make regulations concerning
hazardous substances and articles. Regulations make prohibit or restrict the
import, use, supply and storage of any article or substance in order to prevent
environmental pollution, or damage to human health, animals or plants. In
carrying out his functions, the Secretary of State may appoint an advisory
committee, the Advisory Committee on Hazardous Substances. Details of his
membership and procedures are provided in Schedule 12.
Section 141 gives the Secretary of
State the power to make regulations prohibiting or restricting the import or
export of any waste in order to prevent environmental damage or damage to human
health.
Section 142 gives the
Secretary of State power to make regulations requiring information to be
provided to him by manufacturers, importers or suppliers concerning substances
with the potential for causing environmental pollution or harm to human health.
Information required may relate to properties of substances, articles, or
products, their production, distribution, intended use, and their disposal as
waste.
Section 153
allows the Secretary of State to make grants to a number of specified
environmental bodies and programmes. A number of environmental bodies and
programmes have been added to the list by various legislative provisions,
including most recently by:
Section
156 gives the Secretary of State the power to amend by regulations
key parts of this Act in order to implement obligations under EU law or
international treaties. The provisions that may be so amended are those
relating to integrated pollution control, waste management, GMO regulation, and
controls of hazardous substances (s140), imports and exports of waste (s141),
and information on hazardous substances (s142).
Section 157 contains a standard
provision appearing in most environmental legislation, and provides that where
a company has been convicted of any offence under the Act, any director,
manager or senior officer who consented or connived in the offence, or whose
neglect caused the offence can also be prosecuted for the offence and convicted
accordingly.
Section 158 (which
relates to offences concerning to integrated pollution control, waste
management, GMO regulation, and controls of hazardous substances (s140),
imports and exports of waste (s141), and information on hazardous substances
(s142) provides that where commission of offence was due to the act or default
of another person, that person may also be prosecuted.
Section 159 provides that
the provisions of the Act apply to the Crown (which includes government
departments and hospitals). Powers of entry onto Crown premises may be refused
on grounds of national security.
Section
160 contains requirements concerning the services of notices under
the Act. Notices can be served by person or in person. In the case of
companies, notices that are posted should be sent to the registered or
principal office of the company.
Schedule 1 provides details of the
procedures for authorisations for processes under both the integrated pollution
control regime and the regime for regulating air emissions. It includes
provisions about applications for cariations, and the power of the Secretary of
State to call-in individual applications to decide himself rather than the
Environment Agency or local authority.
Schedule 2A defines the general
purposes of the National Waste Strategy which has to be made by the Secretary
of State under s44A of the Act. This Schedule was repealed in Scotland by The
National Waste Management Plan for Scotland Regulations 2007 (SSI 2007/251), Regulation
8.
Schedule 2B defines categories of
waste which apply to the definition for waste under Part II of the Act. The
Schedule reproduces the list set out in the EU Waste Directive 75/442/EEC, as
amended.
Schedule 3 provides further
provisions concerning the control of statutory nuisances under Part III of the
Act. It includes provisions concerning rights of appeal and the power of entry
of Local Authority enforcement officers.
Schedule 4 elaborates upon the
power of local authorities to deal with abandoned shopping trolleys under
Section 99 of the Act. It includes provisions concerning the power to seize
trolleys, and to return them to their owners on payment of a fee.
Schedule
6 provides further details of the structure of the Countryside
Council for Wales. References to English Nature which were originally included
were removed when that body was subsumed into the new Natural England under the
Natural Environment and Rural
Communities Act 2006.
Schedules 8 and 9 detail
various amendments to existing countryside and nature conservation
legislation.
Schedule 12 provides further
details of the Advisory Committee appointed to advise the Secretary of State on
his functions under Section 140 and Section 142 of the Act.
Schedule 13 details various
amendments to the Planning
(Hazardous Substance) Act 1990.
Schedule
15 details various amendments to existing legislation brought about
by the Act.
Schedule
16 lists details of repeals of provisions in previous legislation
brought about by this Act.Characteristics
Subject
Air General policy Hazardous substances Industrial regulation Land and development Statutory nuisance Sustainable development Transport Waste Water Source
OPSI (Office of Public Sector Information) Affected Sectors
Cross-sector 
The Environment Agency (EA), which is prosecuting Foley, said there was a risk that the contaminants could leach through soil from the quarry to the lake.
The court heard that the minimum cost of clean up is in excess of £50m.
Should the contaminants leach into the Bristol city water supply, it could cost up to £9bn, Brendan Moorehouse, prosecuting for the EA said.
An EA spokesperson said the £9bn estimate was provided by Bristol Water and covers the cost of sourcing an alternative water supply at £500m per year for 15 years along with building a new reservoir at the cost of £1.5bn.
Foley declined to comment. He will appear at Bristol Crown Court on November 11, charged with contravening an environmental permit and disposing of controlled waste in a manner likely to cause pollution or harm to human health, in breach of the Environmental Protection Act 1990.
