(1) An obligation of the landowner under a conservation covenant is owed to the responsible body under the covenant.
(2) Subject to the following provisions, an obligation of the landowner under a conservation covenant binds—
(a) the landowner under the covenant, and
(b) any person who becomes a successor of the landowner under the covenant.
(3) In subsection (2)(b) “successor” (in relation to the landowner under the covenant) means a person who holds, in respect of any of the land to which the obligation relates—
(a) the qualifying estate, or
(b) an estate in land derived (whether immediately or otherwise) from the qualifying estate after the creation of the covenant.
(4) An obligation of the landowner under a conservation covenant ceases to bind the landowner under the covenant, or a person who becomes a successor of that landowner, in respect of—
(a) land which ceases to be land to which the obligation relates,
(b) in the case of the landowner under the covenant, land in relation to which the landowner ceases to be the holder of the qualifying estate, or
(c) in the case of a successor, land in relation to which the successor ceases to be the holder of the qualifying estate or of the estate derived from the qualifying estate, as the case may be.
(5) Subsection (2)(b) does not apply if—
(a) the obligation is positive and the person becomes a successor by virtue of holding a term of years absolute granted for a term of seven years or less from the date of the grant,
(b) the conservation covenant was not registered in the local land charges register at the time when the successor acquired the estate in land concerned, or
(c) the successor’s immediate predecessor was not bound by the obligation in respect of the land to which the successor’s interest relates.
(6) In the case of a conservation covenant relating to land in an area in relation to which section 3 of the Local Land Charges Act 1975 (as substituted by paragraph 3 of Schedule 5 to the Infrastructure Act 2015) does not yet have effect, the reference in subsection (5)(b) to the local land charges register is to the appropriate local land charges register.
(7) The reference in subsection (5)(b) to the time when the successor acquired the estate in land concerned is, if the successor acquired that interest under a disposition which took effect at law only when registered in the register of title kept under the Land Registration Act 2002, to be read as a reference to the time when the disposition was made.
(8) In subsection (5)(c) the successor’s “immediate predecessor” is, unless subsection (9) applies, the successor’s immediate predecessor in title.
(9) If the successor is the first holder of an estate in land which is derived from another estate in land (whether the other estate is the qualifying estate or an estate derived, immediately or otherwise, from it) the successor’s immediate predecessor is the holder of that other estate when the derived estate was created.
(1) Subject to the following provisions, an obligation of the responsible body under a conservation covenant is owed—
(a) to the landowner under the covenant, and
(b) to any person who becomes a successor of the landowner under the covenant.
(2) In this section “successor” (in relation to the landowner under the covenant) means a person who holds, in respect of any of the land to which the obligation relates—
(a) the qualifying estate, or
(b) an estate in land derived (whether immediately or otherwise) from the qualifying estate after the creation of the covenant.
(3) An obligation of the responsible body under a conservation covenant ceases to be owed to the landowner under the covenant, or to a person who becomes a successor of that landowner, in respect of—
(a) land which ceases to be land to which the obligation relates,
(b) in the case of the landowner under the covenant, land in relation to which the landowner ceases to be the holder of the qualifying estate, or
(c) in the case of a successor, land in relation to which the successor ceases to be the holder of the qualifying estate or of the estate derived from the qualifying estate, as the case may be.
(4) Subsection (1)(b) does not apply if the obligation is ancillary to an obligation of the landowner under the covenant which does not bind the successor.
(1) A person bound by a negative obligation under a conservation covenant breaches the obligation by—
(a) doing something which it prohibits, or
(b) permitting or suffering another person to do such a thing.
(2) A person bound by a positive obligation under a conservation covenant breaches the obligation if it is not performed.
(1) In proceedings for the enforcement of an obligation under a conservation covenant, the available remedies are—
(a) specific performance,
(b) injunction,
(c) damages, and
(d) order for payment of an amount due under the obligation.
(2) On an application for a remedy under subsection (1)(a) or (b), a court must, in considering what remedy is appropriate, take into account any public interest in the performance of the obligation concerned.
(3) Subject to subsection (4), contract principles apply to damages for breach of an obligation under a conservation covenant.
(4) In the case of breach of an obligation of the landowner under a conservation covenant, a court may award exemplary damages in such circumstances as it thinks fit.
(5) For the purposes of the Limitation Act 1980, an action founded on an obligation under a conservation covenant is to be treated as founded on simple contract.
(1) In proceedings for breach of an obligation under a conservation covenant it is a defence to show—
(a) that the breach occurred as a result of a matter beyond the defendant’s control,
(b) that the breach occurred as a result of doing, or not doing, something in an emergency in circumstances where it was necessary for that to be done, or not done, in order to prevent loss of life or injury to any person, or
(c) that at the time of the breach—
(i) the land to which the obligation relates was, or was within an area, designated for a public purpose, and
(ii) compliance with the obligation would have involved a breach of any statutory control applying as a result of the designation.
(2) If the only reason for the application of subsection (1)(c) was failure to obtain authorisation, the defendant must also show that all reasonable steps to obtain authorisation had been taken.
(3) The defence under subsection (1)(c) does not apply if the designation was in force when the conservation covenant was created.
(4) The defence of statutory authority (which applies in relation to the infringement of rights such as easements by a person acting under statutory authority) applies in relation to breach of an obligation under a conservation covenant.
(5) In this section—
“authorisation” means any approval, confirmation, consent, licence, permission or other authorisation (however described), whether special or general;
“statutory control” means control imposed by provision contained in, or having effect under, an Act.
127 Discharge of obligation of landowner by agreement
(1) The responsible body under a conservation covenant and a person who holds the qualifying estate in respect of any of the land to which an obligation of the landowner under the covenant relates may, by agreement, discharge from the obligation any of the land in respect of which the person holds that estate.
(2) Subsection (3) applies to—
(a) the responsible body under a conservation covenant, and
(b) a person who is a successor of the landowner under the covenant by virtue of holding an estate in land which—
(i) is an estate in respect of any of the land to which an obligation of the landowner under the covenant relates, and
(ii) is derived (whether immediately or otherwise) from the qualifying estate.
(3) Those persons may, by agreement, discharge the estate in land mentioned in subsection (2)(b) from the obligation in respect of any of the land to which the obligation relates.
(4) Any power under this section is exercisable by agreement executed as a deed by the parties which specifies—
(a) the obligation to which the discharge relates,
(b) the land to which the discharge relates, and
(c) the estate in land by virtue of which the power is exercisable.
128 Discharge of obligation of responsible body by agreement
(1) A person to whom an obligation of the responsible body under a conservation covenant is owed by virtue of the person holding an estate in land may, by agreement with the responsible body, discharge the obligation, so far as owed in relation to that estate, in respect of any of the land in respect of which the person is entitled to the benefit of the obligation.
(2) The power under this section is exercisable by agreement executed as a deed by the parties which specifies—
(a) the obligation to which the discharge relates,
(b) the land to which the discharge relates, and
(c) the estate in land by virtue of which the power is exercisable.
(1) A person bound by, or entitled to the benefit of, an obligation under a conservation covenant may, by agreement with the responsible body under the covenant, modify the obligation in its application to any of the land in respect of which the person is bound by, or entitled to the benefit of, it.
(2) The power under subsection (1) does not include power to make a change which, had it been included in the original agreement, would have prevented the provision of the agreement that gave rise to the obligation being provision in relation to which the conditions in section 117(1) were met.
(3) The power under this section is exercisable by agreement executed as a deed by the parties which specifies—
(a) the obligation to which the modification relates,
(b) the land to which the modification relates, and
(c) the estate in land by virtue of which the power is exercisable.
(4) If an obligation under a conservation covenant is modified by an agreement under this section, the modification binds—
(a) the parties to the agreement, and
(b) any person who, as respects any of the land to which the modification relates, becomes a successor of a person bound by the modification.
(5) In subsection (4)(b) “successor of a person bound by the modification”, means a person who holds, in respect of any of the land to which the modification relates—
(a) the estate held by the person bound by the modification when the modification was agreed, or
(b) an estate in land derived (whether immediately or otherwise) from that estate after the modification is agreed.
130 Discharge or modification of obligation by Upper Tribunal
(1) Schedule 18 makes provision about the discharge or modification of an obligation under a conservation covenant on application to the Upper Tribunal.
(2) Where any proceedings by action or otherwise are taken to enforce an obligation under a conservation covenant, any person against whom the proceedings are taken may in such proceedings apply to the High Court or the county court for an order giving leave to apply to the Upper Tribunal under Schedule 18 and staying the proceedings in the meantime.
(3) No application under section 84(1) of the Law of Property Act 1925 (which enables the Upper Tribunal on application to discharge or modify a restriction arising under covenant or otherwise) may be made in relation to an obligation under a conservation covenant.
131 Power of responsible body to appoint replacement
(1) The responsible body under a conservation covenant may appoint another responsible body to be the responsible body under the covenant, unless the covenant otherwise provides.
(2) The power under subsection (1) is exercisable by agreement executed as a deed by the appointor and appointee.
(3) In the case of a conservation covenant registered in the local land charges register, an appointment under subsection (1) only has effect if the appointor supplies to the Chief Land Registrar the information necessary to enable the Registrar to amend the registration.
(4) In the case of a conservation covenant relating to land in an area in relation to which section 3 of the Local Land Charges Act 1975 (as substituted by paragraph 3 of Schedule 5 to the Infrastructure Act 2015) does not yet have effect—
(a) the references in subsection (3) to the local land charges register and the Chief Land Registrar are to the appropriate local land charges register and the authority responsible for that register, but
(b) subsection (3) does not apply to an appointment by that authority.
(5) Appointment under subsection (1) has effect to transfer to the appointee—
(a) the benefit of every obligation of the landowner under the conservation covenant, and
(b) the burden of every obligation of the responsible body under the covenant.
(6) Appointment under subsection (1) does not have effect to transfer any right or liability in respect of an existing breach of obligation.
(7) A body appointed under subsection (1) as the responsible body under a conservation covenant must notify its appointment to every person who is bound by an obligation of the landowner under the covenant.
(1) Subsections (2) and (3) apply if a body which is the responsible body under a conservation covenant ceases to be a designated body.
(2) The body ceases to be the responsible body under the conservation covenant.
(3) The following transfer to the Secretary of State—
(a) the benefit of every obligation of the landowner under the covenant, and
(b) the burden of every obligation of the responsible body under the covenant.
(4) Subsection (3) does not have effect to transfer any right or liability in respect of an existing breach of obligation.
(5) If subsection (3) has effect in relation to a conservation covenant, the Secretary of State becomes custodian of the covenant until—
(a) an appointment under section 131(1) by the Secretary of State has effect in relation to the covenant, or
(b) the Secretary of State makes an election under subsection (6) in relation to the covenant.
(6) If custodian of a conservation covenant, the Secretary of State may elect to be the responsible body under the covenant by giving written notice of election to every person who is bound by an obligation of the landowner under the covenant.
(7) The Secretary of State may, as custodian of a conservation covenant—
(a) enforce any obligation of the landowner under the covenant, and
(b) exercise in relation to the covenant any power conferred by this Part on the responsible body under the covenant.
(8) In relation to any period as custodian of a conservation covenant, the Secretary of State has no liability with respect to performance of any obligation of the responsible body under the covenant.
133 Effect of acquisition or disposal of affected land by responsible body
If the responsible body under a conservation covenant acquires an estate in land to which an obligation under the covenant relates (whether an obligation of the landowner or of the responsible body under the covenant)—
(a) the acquisition does not have effect to extinguish the obligation,
(b) section 122(2)(b) applies to the body as it would apply to any other person acquiring the estate in land in the same circumstances, and
(c) any obligation of the responsible body under the covenant continues to bind the body in accordance with this Part.
134 Effect of deemed surrender and re-grant of qualifying estate
(1) Subsection (2) applies if a term of years absolute which is the qualifying estate in relation to an obligation under a conservation covenant is deemed to be surrendered and re-granted by operation of law.
(2) In the application of sections 122, 123 and 127 to the period after the deemed surrender, references to the qualifying estate are to be read as including a reference to the term of years deemed to be granted.
135 Declarations about obligations under conservation covenants
(1) The court or Upper Tribunal may on the application of any person interested declare—
(a) whether anything purporting to be a conservation covenant is a conservation covenant,
(b) whether any land is land to which an obligation under a conservation covenant relates,
(c) whether any person is bound by, or entitled to the benefit of, an obligation under a conservation covenant and, if so, in respect of what land,
(d) what, upon the true construction of any instrument by means of which an obligation under a conservation covenant is created or modified, is the nature of the obligation.
(2) No application under section 84(2) of the Law of Property Act 1925 (which enables the court on application to make declarations about restrictions under instruments) may be made in relation to an obligation under a conservation covenant.
(3) In this section “the court” means the High Court or the county court.
136 Duty of responsible bodies to make annual return
(1) A designated body must make an annual return to the Secretary of State stating whether, during the period to which the return relates, there were any conservation covenants under which an obligation was owed to it as the responsible body.
(2) If there were any such conservation covenants, the annual return must—
(a) state the number of conservation covenants;
(b) state, for each conservation covenant, the area of the land in relation to which the body was owed any obligation as the responsible body.
(3) The annual return must also give any information that is prescribed under subsection (4).
(4) The Secretary of State may by regulations make provision about annual returns to be made by a designated body.
(5) The provision which may be made under subsection (4) includes, in particular, provision—
(a) prescribing information to be included in an annual return (but see subsection (10)), and
(b) provision as to the period to which an annual return is to relate and the date by which an annual return is to be made.
(6) Subject to any provision made as mentioned in subsection (5)(b)—
(a) the period to which an annual return is to relate, and
(b) the date by which an annual return is to be made,
are such period and date as the Secretary of State may direct.
(7) On giving a direction under subsection (6) the Secretary of State must take all reasonable steps to draw the direction to the attention of each responsible body affected by it.
(8) A direction under subsection (6) may be varied or revoked by a further such direction.
(9) Regulations under subsection (4) and directions under subsection (6) may make—
(a) provision of general application, or
(b) provision applicable only to one or more particular responsible bodies or to responsible bodies of a particular description.
(10) Any information prescribed for inclusion in an annual return made by a designated body must be information about or connected with—
(a) the designated body;
(b) its activities over the period to which the return relates;
(c) any conservation covenant under which an obligation was owed to it as the responsible body during that period;
(d) the land in relation to which it was owed such an obligation.
(11) Regulations under this section are subject to the negative procedure.
The following Table sets out expressions defined or explained in this Part for general purposes.
Expression | Provision
conservation covenant | section 118(1)
conservation covenant agreement | section 117(1)
conservation purpose | section 117(3)
conserving (something) | section 117(4)
designated body | section 119(1)(b)
natural environment (in relation to land) | section 117(4)
qualifying estate (generally) | section 117(4)
the qualifying estate (in relation to an obligation under a conservation covenant) | section 117(4)
responsible body | section 119
141 Amendments of Schedule 7B to the Government of Wales Act 2006
(1) Schedule 7B to the Government of Wales Act 2006 (general restrictions on legislative competence of Senedd Cymru) is amended as follows.
(2) In paragraph 9(8)(b) (exceptions to restrictions relating to reserved authorities)—
(a) omit the “or” at the end of paragraph (v);
(b) after paragraph (vi) insert
; or
(vii) the Environment Act 2021.
(3) In paragraph 11(6)(b) (exceptions to restrictions relating to Ministers of the Crown)—
(a) omit the “or” at the end of paragraph (v);
(b) after paragraph (vi) insert
; or
(vii) the Environment Act 2021.
(1) The Secretary of State may by regulations make provision that is consequential on this Act or regulations under this Act.
(2) The Welsh Ministers may by regulations make provision that is consequential on—
(a) a provision within section 147(4) (provisions to be commenced by Welsh Ministers), or
(b) regulations under this Act made by the Welsh Ministers.
(3) The Scottish Ministers may by regulations make provision that is consequential on—
(a) a provision within section 147(5) (provisions to be commenced by Scottish Ministers), or
(b) regulations under this Act made by the Scottish Ministers.
(4) The Department of Agriculture, Environment and Rural Affairs in Northern Ireland may by regulations make provision that is consequential on—
(a) a provision within section 147(6) (provisions to be commenced by the Department), or
(b) regulations under this Act made by that Department.
(5) The Department for the Economy in Northern Ireland may by regulations make provision that is consequential on regulations under this Act made by that Department.
(6) Regulations under this section may amend or repeal provision made by or under any legislation (whenever passed or made).
(7) Regulations under this section are subject to the affirmative procedure if they amend or repeal any provision of—
(a) an Act of Parliament,
(b) a Measure or Act of Senedd Cymru,
(c) an Act of the Scottish Parliament, or
(d) Northern Ireland legislation, ...
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(8) Regulations under this section to which subsection (7) does not apply are subject to the negative procedure.
(9) Regulations under this section—
(a) made by the Welsh Ministers, may contain only provision which, if contained in an Act of Senedd Cymru, would be within the legislative competence of the Senedd;
(b) made by the Scottish Ministers, may contain only provision which, if contained in an Act of the Scottish Parliament, would be within the legislative competence of the Parliament;
(c) made by a Northern Ireland department, may contain only provision which, if contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Assembly and would not require the Secretary of State’s consent.
(10) Regulations under this section made by the Secretary of State may not contain provision that could be contained in regulations under this section—
(a) made by the Welsh Ministers, unless the Welsh Ministers consent;
(b) made by the Scottish Ministers, unless the Scottish Ministers consent;
(c) made by a Northern Ireland department, unless the department consents.
(1) A power to make regulations under any provision of this Act includes power to make—
(a) supplementary, incidental, transitional or saving provision;
(b) different provision for different purposes or areas.
(2) Subsection (1) does not apply to regulations under section 147 or 148.
(3) Regulations under this Act made by—
(a) the Secretary of State, or
(b) the Welsh Ministers,
are to be made by statutory instrument.
(4) A power of a Northern Ireland department to make regulations under this Act is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).
(5) Where regulations under this Act made or to be made by the Secretary of State—
(a) are subject to the negative procedure, the statutory instrument containing them is subject to annulment in pursuance of a resolution of either House of Parliament;
(b) are subject to the affirmative procedure, they may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.
(6) Where regulations under this Act made or to be made by the Welsh Ministers—
(a) are subject to the negative procedure, the statutory instrument containing them is subject to annulment in pursuance of a resolution of Senedd Cymru;
(b) are subject to the affirmative procedure, they may not be made unless a draft of the statutory instrument containing them has been laid before, and approved by a resolution of, Senedd Cymru.
(7) Where regulations under this Act made or to be made by a Northern Ireland Department—
(a) are subject to the negative procedure, they are subject to negative resolution within the meaning given by section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) ;
(b) are subject to the affirmative procedure, they may not be made unless a draft of the regulations has been laid before and approved by a resolution of the Northern Ireland Assembly.
(8) See sections 28 and 29 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10) for the meaning of “the negative procedure” and “the affirmative procedure” in relation to regulations under this Act made or to be made by the Scottish Ministers.
(9) Any provision that may be made by regulations under this Act subject to the negative procedure may be made by regulations subject to the affirmative procedure.
(1) This Act binds the Crown, subject to subsection (2).
(2) An amendment or repeal made by this Act binds the Crown to the same extent as the provision amended or repealed.
There is to be paid out of money provided by Parliament—
(a) any expenditure incurred under or by virtue of this Act by the Secretary of State, and
(b) any increase attributable to this Act in the sums payable under any other Act out of money so provided.
(1) In Part 1 of this Act (environmental governance)—
(a) the following provisions extend to England and Wales—
(i) Chapter 1 (improving the natural environment), except for sections 17 to 20;
(ii) section 28 (monitoring and reporting on environmental improvement plans and targets);
(b) sections 17 to 19 (policy statement on environmental principles) extend to England and Wales and Scotland;
(c) the remaining provisions extend to England and Wales, Scotland and Northern Ireland.
(2) Part 2 of this Act (environmental governance: Northern Ireland) extends to Northern Ireland, except that—
(a) in Part 1 of Schedule 3, paragraphs 16 and 17(7) extend to England and Wales, Scotland and Northern Ireland;
(b) an amendment or repeal made by Part 2 of Schedule 3 has the same extent as the provision amended or repealed.
(3) In Part 3 of this Act (waste and resource efficiency)—
(a) the following provisions extend to England and Wales, Scotland and Northern Ireland—
(i) section 50 and Schedule 4 (producer responsibility obligations);
(ii) section 51 and Schedule 5 (producer responsibility for disposal costs);
(iii) section 52 and Schedule 6 (resource efficiency information);
(iv) section 53 and Schedule 7 (resource efficiency requirements);
(v) section 63 (procedure for regulations under the Environmental Protection Act 1990);
(b) the following provisions extend to England and Wales and Northern Ireland—
(i) section 54 and Schedule 8 (deposit schemes);
(ii) sections 55 and Schedule 9 (charges for single use items);
(c) the following provisions extend to England and Wales—
(i) section 60 (hazardous waste);
(ii) section 66 and Schedule 10 (enforcement powers);
(iii) section 68 (littering enforcement);
(d) section 71 (waste regulation: amendment of Northern Ireland Order) extends to Northern Ireland;
(e) an amendment or repeal has the same extent as the provision amended or repealed, except where contained in a provision for which a different extent is provided by this subsection.
(4) In Part 4 of this Act (air quality and environmental recall)—
(a) section 73 and Schedule 12 (smoke control areas) extend to England and Wales;
(b) sections 74 to 77 (recall of motor vehicles) extend to England and Wales, Scotland and Northern Ireland;
(c) an amendment or repeal has the same extent as the provision amended or repealed, except where contained in a provision for which a different extent is provided by this subsection.
(5) In Part 5 of this Act (water)—
(a) section 84 (report on elimination of discharges from storm overflows) extends to England and Wales;
(b) sections 89 and 93 (water quality) extend to England and Wales, Scotland and Northern Ireland;
(c) section 90 (water quality - powers of Welsh Ministers) extends to England and Wales;
(d) section 91 (water quality - powers of Northern Ireland Department) extends to Northern Ireland;
(e) section 92 (Solway Tweed river basin district) extends to England and Wales and Scotland;
(f) an amendment or repeal has the same extent as the provision amended or repealed.
(6) Part 6 of this Act (nature and biodiversity) extends to England and Wales, except that—
(a) the amendments made by Schedule 15 (biodiversity gain in nationally significant infrastructure projects) have the same extent as the provisions amended, and
(b) section 116 and Schedule 17 (use of forest risk commodities in commercial activity) extend to England and Wales, Scotland and Northern Ireland.
(7) Part 7 of this Act (conservation covenants) extends to England and Wales.
(8) This Part (miscellaneous and general provisions) extends to England and Wales, Scotland and Northern Ireland.
(1) The following provisions of this Act come into force on the day on which this Act is passed—
(a) section 63 (procedure for regulations under the Environmental Protection Act 1990);
(b) this Part of this Act (miscellaneous and general provisions), except section 140 and Schedule 21 so far as relating to powers of a Northern Ireland department to make regulations under paragraph 2 of that Schedule.
(2) The following provisions of this Act come into force at the end of the period of 2 months beginning with the day on which this Act is passed—
(a) section 51 and Schedule 5 (producer responsibility for disposal costs) so far as relating to England and Wales and Scotland;
(b) section 52 and Schedule 6 (resource efficiency information) so far as relating to England and Wales and Scotland;
(c) section 53 and Schedule 7 (resource efficiency requirements) so far as relating to England and Wales and Scotland;
(d) section 54 and Schedule 8 (deposit schemes) so far as relating to England and Wales;
(e) section 55 and Schedule 9 (charges for single use items) so far as relating to England and Wales;
(f) section 56 (carrier bag charge) so far as relating to England and Wales;
(g) section 58 (electronic waste tracking);
(h) section 66 and Schedule 10 (enforcement powers);
(i) section 70 (regulation of polluting activities);
(j) section 80 (storm overflows) and section 84 (report on elimination of discharges from storm overflows);
(k) section 88 (water abstraction in England);
(l) section 89 (water quality), except so far as relating to legislation within section 89(2)(d) to (f) and any regulations modifying that legislation made under or by virtue of the European Union (Withdrawal) Act 2018;
(m) sections 90, 92 and 93 (water quality);
(n) section 97 (disclosure of HMRC information).
(3) The following provisions of this Act come into force on such day as the Secretary of State may by regulations appoint —
(a) Part 1 (environmental governance);
(b) section 50 and Schedule 4 (producer responsibility obligations), so far as relating to England;
(c) section 57 (separate collection of waste);
(d) section 60 (hazardous waste), so far as relating to England;
(e) section 62 (transfrontier shipments of waste);
(f) section 64 (charging powers), so far as relating to the Environment Agency;
(g) section 68 (littering enforcement), so far as relating to England;
(h) in section 69 (fixed penalty notices), subsections (2) and (4) and subsection (1) so far as relating to those subsections;
(i) section 72 and Schedule 11 (local air quality management framework);
(j) Parts 1 and 3 of Schedule 12 (smoke control areas) and section 73 so far as relating to those Parts;
(k) sections 74 to 77 (recall of motor vehicles);
(l) sections 78 and 79 (water management plans etc), so far as relating to undertakers whose areas are wholly or mainly in England;
(m) sections 81 and 82 (reporting and monitoring duties relating to discharges from storm overflows etc);
(n) section 83 (reduction of adverse impacts of storm overflows);
(o) sections 85 and 87 (amendments to Water Industry Act 1991), so far as relating to undertakers whose areas are wholly or mainly in England and licensees using the systems of such undertakers;
(p) section 86 and Schedule 13 (appointment of water and sewerage undertakers in England);
(q) section 94 (valuation of other land in drainage districts: England);
(r) section 96 (valuation of agricultural land in drainage districts), so far as relating to internal drainage districts which are wholly or mainly in England;
(s) Part 6 (nature and biodiversity);
(t) Part 7 (conservation covenants).
(4) The following provisions of this Act come into force on such day as the Welsh Ministers may by regulations appoint—
(a) section 50 and Schedule 4 (producer responsibility obligations), so far as relating to Wales;
(b) section 60 (hazardous waste), so far as relating to Wales;
(c) section 64 (charging powers), so far as relating to the Natural Resources Body for Wales;
(d) section 68 (littering enforcement), so far as relating to Wales;
(e) in section 69 (fixed penalty notices), subsections (3) and (5) and subsection (1) so far as relating to those subsections;
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) sections 78 and 79 (water management plans etc), so far as relating to undertakers whose areas are wholly or mainly in Wales;
(h) sections 85 and 87 (amendments to Water Industry Act 1991), so far as relating to undertakers whose areas are wholly or mainly in Wales and licensees using the systems of such undertakers;
(i) section 95 (valuation of other land in drainage districts: Wales);
(j) section 96 (valuation of agricultural land in drainage districts), so far as relating to internal drainage districts which are wholly or mainly in Wales.
(5) The following provisions of this Act come into force on such day as the Scottish Ministers may by regulations appoint—
(a) section 50 and Schedule 4 (producer responsibility obligations), so far as relating to Scotland;
(b) section 64 (charging powers), so far as relating to the Scottish Environment Protection Agency.
(6) The following provisions of this Act come into force on such day as the Department of Agriculture, Environment and Rural Affairs in Northern Ireland may by order appoint—
(a) Part 2 (environmental governance: Northern Ireland);
(b) section 50 and Schedule 4 (producer responsibility obligations), so far as relating to Northern Ireland;
(c) section 51 and Schedule 5 (producer responsibility for disposal costs) so far as relating to Northern Ireland;
(d) section 52 and Schedule 6 (resource efficiency information) so far as relating to Northern Ireland;
(e) section 53 and Schedule 7 (resource efficiency requirements) so far as relating to Northern Ireland;
(f) section 54 and Schedule 8 (deposit schemes) so far as relating to Northern Ireland;
(g) section 55 and Schedule 9 (charges for single use items), so far as relating to Northern Ireland;
(h) section 56 (carrier bag charge) so far as relating to Northern Ireland;
(i) section 59 (electronic waste tracking: Northern Ireland);
(j) section 61 (hazardous waste: Northern Ireland);
(k) section 65 (waste charging: Northern Ireland);
(l) section 67 (enforcement powers: Northern Ireland);
(m) section 71 (waste regulation: amendment of Northern Ireland Order);
(n) section 89 (water quality: powers of Secretary of State), so far as relating to legislation within section 89(2)(d) to (f) and any regulations modifying that legislation made under or by virtue of the European Union (Withdrawal) Act 2018;
(o) section 91 (water quality: powers of Northern Ireland Department);
(p) section 140 and Schedule 21 (amendment of REACH legislation) so far as relating to powers of a Northern Ireland department to make regulations under paragraph 2 of that Schedule.
(7) An order under subsection (6) may not appoint a day for the coming into force of the following provisions of Schedule 3 (OEP’s Northern Ireland functions), unless the Secretary of State consents—
(a) paragraphs 16 and 17(7);
(b) Part 2.
(8) The power to make an order under subsection (6) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).
(9) An order under subsection (6) may not be made unless a draft of the order has been laid before and approved by a resolution of the Northern Ireland Assembly.
(10) A power to make regulations or an order under this section includes power to appoint different days for different purposes or areas.
(1) The Secretary of State may by regulations make transitional or saving provision in connection with the coming into force of any provision of this Act.
(2) The Welsh Ministers may by regulations make transitional or saving provision in connection with the coming into force of any provision within section 147(4) (provisions to be commenced by Welsh Ministers).
(3) The Scottish Ministers may by regulations make transitional or saving provision in connection with the coming into force of any provision within section 147(5) (provisions to be commenced by Scottish Ministers).
(4) The Department of Agriculture, Environment and Rural Affairs in Northern Ireland may by regulations make transitional or saving provision in connection with the coming into force of any provision within section 147(6) (provisions to be commenced by Department).
(5) Regulations under this section—
(a) made by the Welsh Ministers, may contain only provision which, if contained in an Act of Senedd Cymru, would be within the legislative competence of the Senedd;
(b) made by the Scottish Ministers, may contain only provision which, if contained in an Act of the Scottish Parliament, would be within the legislative competence of that Parliament;
(c) made by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, may contain only provision which, if contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Assembly and would not require the Secretary of State’s consent.
(6) Regulations under this section made by the Secretary of State may not contain provision that could be contained in regulations under this section—
(a) made by the Welsh Ministers, unless the Welsh Ministers consent;
(b) made by the Scottish Ministers, unless the Scottish Ministers consent;
(c) made by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, unless the Department consents.
(7) Any provision which could be made by regulations under this section made by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland may be made by an order made by the Department under section 147.
(8) A power to make regulations or an order under this section includes power to make different provision for different purposes or areas.
SCHEDULE 1 The Office for Environmental Protection
Section 22
Membership
1 (1) The OEP is to consist of—
(a) a Chair (who is to be a non-executive member),
(aa) a Northern Ireland member (who is to be a non-executive member),
(b) at least two, but not more than five, other non-executive members,
(c) a chief executive (who is to be the accounting officer), and
(d) at least one, but not more than three, other executive members.
(2) The members are to be appointed by the Secretary of State , the Northern Ireland Department and the OEP in accordance with paragraphs 2 and 3.
(3) When exercising their functions of appointment the Secretary of State and the OEP must ensure, so far as practicable, that the number of non-executive members (including the Northern Ireland member) is at all times greater than the number of executive members.
Appointment of non-executive members
2 (1) The Chair is to be appointed by the Secretary of State acting jointly with the Northern Ireland Department, other than the first Chair who is to be appointed by the Secretary of State.
(2) The Northern Ireland member is to be appointed by the Northern Ireland Department after consulting the Secretary of State and the Chair.
(2A) The other non-executive members are to be appointed by the Secretary of State after consulting the Northern Ireland Department and the Chair.
(2B) The Northern Ireland Department must appoint as the Northern Ireland member a person with experience of—
(a) Northern Ireland environmental law (within the meaning of Part 1 of Schedule 3),
(b) environmental science in Northern Ireland, or
(c) environmental regulation in Northern Ireland.
(3) The Secretary of State must, in appointing non-executive members, have regard to the desirability of the members (between them) having experience of—
(a) law (including international law) relating to the natural environment,
(b) environmental science,
(c) environmental policy, and
(d) investigatory and enforcement proceedings.
(4) A person may not be appointed as a non-executive member if the person is an employee of the OEP.
Appointment of executive members
3 (1) The chief executive is to be appointed by the non-executive members of the OEP, other than the first chief executive who is to be appointed by the Chair.
(2) The other executive members are to be appointed by the OEP.
(3) The Secretary of State and the Northern Ireland Department must be consulted before a person is appointed as chief executive.
(4) An executive member must be an employee of the OEP.
Interim chief executive
4 (1) The Secretary of State may appoint a person as an executive member to act as chief executive of the OEP (“an interim chief executive”) until the appointment of the first chief executive by the Chair under paragraph 3(1).
(2) Where the OEP has fewer members than are needed to hold a meeting that is quorate (see paragraph 11(2)), an interim chief executive may incur expenditure and do other things in the name and on behalf of the OEP.
(3) In exercising the power in sub-paragraph (2), an interim chief executive must act in accordance with any directions given by the Secretary of State.
(4) Neither paragraph 3(4) (requirement that executive members are employees) nor paragraph 5(2) (requirement that members are not civil servants) apply to an interim chief executive.
Terms of membership
5 (1) A member of the OEP holds and vacates office in accordance with the terms of the member’s appointment, subject to the provisions of this Schedule.
(2) A person may not hold office as a member of the OEP if the person is employed in the civil service of the State.
(3) A non-executive member must be appointed for a fixed term of no more than 5 years.
(4) The Secretary of State must, in determining the length of a non-executive member’s term, have regard to the desirability of securing that the appointments of non-executive members (including the Northern Ireland member) expire at different times.
(4A) The Northern Ireland Department must, in determining the length of a Northern Ireland member’s term, have regard to the desirability of securing that the appointments of non-executive members expire at different times.
(5) The previous appointment of a person as a non-executive member does not affect the person’s eligibility for re-appointment.
(6) A non-executive member ceases to be a member of the OEP upon becoming its employee.
(7) A non-executive member, other than the Northern Ireland member—
(a) may resign from office by giving notice to the Secretary of State, and
(b) may be removed from office by notice given by the Secretary of State, after consulting the Northern Ireland Department, on the grounds that the member—
(i) has without reasonable excuse failed to discharge the member’s functions, or
(ii) is, in the opinion of the Secretary of State, unable or unfit to carry out the member’s functions.
(8) The Northern Ireland member—
(a) may resign from office by giving notice to the Northern Ireland Department, and
(b) may be removed from office by notice given by the Northern Ireland Department after consulting the Secretary of State, on the grounds that the member—
(i) has without reasonable excuse failed to discharge the member’s functions, or
(ii) is, in the opinion of the Northern Ireland Department, unable or unfit to carry out the member’s functions.
Remuneration of non-executive members
6 (1) The OEP must pay its non-executive members such remuneration and allowances as the Secretary of State may determine.
(2) If a person ceases to be a non-executive member, other than by reason of their term of office expiring, and the Secretary of State determines that the person should be compensated because of special circumstances, the OEP must pay compensation of such amount as the Secretary of State may determine.
(3) The Secretary of State must consult the Chair before making a determination under this paragraph.
Staffing and remuneration
7 (1) The OEP may—
(a) appoint employees on such terms as it determines, and
(b) make such other arrangements for the staffing of the OEP as it determines.
(2) The terms of the first chief executive’s appointment are to be determined by the Chair.
(3) The OEP must pay its employees such remuneration as the OEP may determine.
(4) The OEP must pay, or make provision for paying, to or in respect of a person who is or has been an employee of the OEP, such sums as the OEP may determine with the approval of the Secretary of State in respect of pensions, allowances and gratuities.
(5) In the Superannuation Act 1972 (“the 1972 Act”), in Schedule 1 (kinds of employment to which a scheme under section 1 of the 1972 Act can apply), in the list of “other Bodies”, at the appropriate place insert—
The Office for Environmental Protection.
(6) The OEP must pay to the Minister for the Civil Service, at such times as the Minister may direct, such sums as the Minister may determine in respect of any increase attributable to sub-paragraph (5) in the sums payable out of money provided by Parliament under the Superannuation Act 1972.
Powers
8 (1) The OEP may do anything (other than something mentioned in sub-paragraph (2)) it thinks appropriate for the purposes of, or in connection with, its functions.
(2) The OEP may not—
(a) accept gifts of money, land or other property, or
(b) form, participate in forming, or invest in, a company, partnership, joint venture or other similar form of organisation.
Committees
9 (1) The OEP may establish committees.
(2) A committee may include persons who are not members of the OEP (whether or not they are employees of the OEP).
(3) A member of a committee who is neither a member nor an employee of the OEP is not entitled to vote at meetings of that committee.
(4) The OEP may pay such allowances as it may determine to any person who—
(a) is a member of a committee, but
(b) is neither a member, nor an employee, of the OEP.
Delegation to members, committees and employees
10 (1) The OEP may delegate any of its functions (other than a function mentioned in sub-paragraph (4)) to—
(a) a member of the OEP,
(b) any of the OEP’s employees authorised for that purpose, or
(c) a committee of the OEP.
(2) The OEP must prepare a document that sets out its policy on how its functions may be appropriately delegated (a “delegation policy”).
(3) A function is delegated under this paragraph to the extent, and on the terms, that the OEP determines in accordance with its delegation policy.
(4) The OEP may not delegate the following functions—
(a) approving the strategy under section 23(3) (or a revision of it);
(b) approving a report under section 28 or 29 , or a report under paragraph 1 or 2 of Schedule 3 (functions of the OEP in Northern Ireland);
(c) approving written advice to a Minister of the Crown under section 30(1) or (3) , or written advice to a Northern Ireland department under paragraph 3(1) or (3) of Schedule 3;
(d) deciding whether to give an information notice or a Northern Ireland information notice;
(e) deciding whether to give a decision notice or a Northern Ireland decision notice;
(f) deciding whether to apply for an environmental review (see section 38);
(g) deciding whether to apply for judicial review or a statutory review, or to intervene in proceedings that relate to a judicial review or a statutory review (see section 39);
(ga) deciding whether to make a review application (see paragraph 12 of Schedule 3) or an application for judicial review by virtue of paragraph 13(1) of that Schedule or to intervene in proceedings that relate to a judicial review (see paragraph 13 of that Schedule);
(h) approving a delegation policy under sub-paragraph (2);
(i) approving a report on the exercise of the OEP’s functions under paragraph 13(1) or a statement of accounts under paragraph 14(2).
Procedure
11 (1) The OEP may determine its own procedure, subject to sub-paragraph (2), and the procedure of its committees.
(2) A meeting of the OEP is not quorate unless—
(a) there are at least three members present, and
(b) a majority of the members present are non-executive members.
(3) The validity of any proceedings of the OEP is not affected by any vacancy among its members or by any defect in the appointment of such a member.
Funding
12 (1) The Secretary of State and the Northern Ireland Department must , between them, pay to the OEP such sums as they consider are reasonably sufficient to enable the OEP to carry out its functions.
(2) The Secretary of State , or the Northern Ireland Department, may provide further financial assistance to the OEP (including by way of grants, loans, guarantees or indemnities) subject to such conditions as the Secretary of State , or that department, may determine.
Annual report
13 (1) As soon as reasonably practicable after the end of each financial year the OEP must prepare a report on the exercise of its functions during that financial year.
(2) The OEP must—
(a) arrange for its report to be laid before Parliament and the Northern Ireland Assembly, and
(b) publish it.
Annual accounts
14 (1) The OEP must keep proper accounts and proper records in relation to them.
(2) The OEP must prepare a statement of accounts in respect of each financial year in the form specified by the Secretary of State.
(3) A statement of accounts must include an assessment by the OEP of whether, in the financial year to which the statement relates, the Secretary of State and the Northern Ireland Department provided it with sufficient sums to carry out its functions.
(4) The OEP must send a copy of each statement of accounts to the Secretary of State , the Northern Ireland Department and the Comptroller and Auditor General as soon as reasonably practicable after the end of the financial year to which it relates.
(5) The Comptroller and Auditor General must—
(a) examine, certify and report on the statement of accounts, and
(b) send a copy of the certified statement and the report to the Secretary of State , the Northern Ireland Department and the OEP.
(6) The OEP must arrange for the laying before Parliament and the Northern Ireland Assembly of a copy of—
(a) its certified statement of accounts, and
(b) the Comptroller and Auditor General’s report on its statement of accounts.
Meaning of “financial year”
15 In this Schedule “financial year” means—
(a) the period beginning with the date on which the OEP is established and ending with 31 March following that date, and
(b) each successive period of 12 months.
Status
16 (1) The OEP is not to be regarded—
(a) as a servant or agent of the Crown, or
(b) as enjoying any status, immunity or privilege of the Crown.
(2) The OEP’s property is not to be regarded as property of, or property held on behalf of, the Crown.
(3) Service as a member, or as an employee, of the OEP is not service in the civil service of the State.
Independence of the OEP
17 In exercising functions in respect of the OEP, the Secretary of State and the Northern Ireland Department must have regard to the need to protect its independence.
Disqualification from membership of legislatures
18 In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975, at the appropriate place insert—
The Office for Environmental Protection.
19 In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975, at the appropriate place insert—
The Office for Environmental Protection.
Public records
20 In Part 2 of the Table in paragraph 3 of Schedule 1 to the Public Records Act 1958 (definition of public records), at the appropriate place insert—
The Office for Environmental Protection.
Freedom of Information
21 In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (other public bodies), at the appropriate place insert—
The Office for Environmental Protection.
Investigation by the Parliamentary Commissioner
22 In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments subject to investigation), at the appropriate place insert—
The Office for Environmental Protection.
Public sector equality duty
23 In Part 1 of Schedule 19 to the Equality Act 2010 (authorities subject to the public sector equality duty), under the heading “Environment, housing and development”, at the appropriate place insert—
The Office for Environmental Protection.
Meaning of “the Northern Ireland Department”
24 In this Schedule “the Northern Ireland Department” means the Department of Agriculture, Environment and Rural Affairs in Northern Ireland.
SCHEDULE 2 Improving the natural environment: Northern Ireland
Section 48
PART 1 Environmental improvement plans
Environmental improvement plans
1 (1) The Department must prepare an environmental improvement plan.
(2) An “environmental improvement plan” is a plan for significantly improving the natural environment.
(3) The plan may—
(a) relate to a period specified in the plan, or
(b) be of no specified duration.
(4) An environmental improvement plan must set out—
(a) the steps that the Department intends to take to improve the natural environment, and
(b) any steps that any other Northern Ireland department intends to take to improve the natural environment.
(5) It may also set out steps that any Northern Ireland department intends to take to improve people’s enjoyment of the natural environment (and if it does so references in this Schedule to improving the natural environment, in relation to that plan, include improving people’s enjoyment of it).
(6) In preparing an environmental improvement plan, the Department must consult such other Northern Ireland departments as it considers appropriate.
(7) The Department must lay before the Northern Ireland Assembly, and publish, an environmental improvement plan before the end of the 12 month period beginning with the day on which this paragraph comes into force.
(8) References in this Schedule to the current environmental improvement plan are to the environmental improvement plan for the time being in effect.
Annual reports on environmental improvement plans
2 (1) The Department must prepare annual reports on the implementation of the current environmental improvement plan.
(2) An annual report must—
(a) describe what has been done, in the period to which the report relates, to implement the environmental improvement plan, and
(b) consider, having regard to any data obtained under paragraph 5, whether the natural environment has, or particular aspects of it have, improved during that period.
(3) Annual reports on an environmental improvement plan must relate to—
(a) the 12 month period beginning with the day on which the plan is published, and
(b) each subsequent 12 month period.
(4) An annual report must be laid before the Northern Ireland Assembly before the end of the 4 month period beginning immediately after the last day of the period to which the report relates.
(5) The Department must publish annual reports laid before the Northern Ireland Assembly under this paragraph.
Reviewing and revising environmental improvement plans
3 (1) The Department must—
(a) review the current environmental improvement plan in accordance with this paragraph, and
(b) if the Department considers it appropriate as a result of the review, revise the plan.
(2) The first review of an environmental improvement plan must be completed before the end of the 5 year period beginning with—
(a) if it is the first environmental improvement plan, the day on which it is published, and
(b) otherwise, the day on which it replaces the previous plan (see paragraph 4(6)).
(3) Subsequent reviews of an environmental improvement plan must be completed before the end of the 5 year period beginning with the day on which the previous review was completed.
(4) In reviewing an environmental improvement plan, the Department must—
(a) consider what has been done to implement the plan in the period since it was published or (if it has been reviewed before) last reviewed,
(b) consider whether, having regard to data obtained under paragraph 5 and reports made by the OEP under paragraph 1 of Schedule 3, the natural environment has, or particular aspects of it have, improved during that period, and
(c) consider whether any Northern Ireland department should take further or different steps to improve the natural environment (compared to those set out in the plan).
(5) In reviewing and revising an environmental improvement plan, the Department must consult such other Northern Ireland departments as it considers appropriate.
(6) If as a result of a review the Department considers it appropriate to revise the plan, the Department must lay before the Northern Ireland Assembly—
(a) a revised environmental improvement plan, and
(b) a statement explaining the revisions and the reasons for them.
(7) If as a result of a review the Department does not consider it appropriate to revise the plan, the Department must lay before the Northern Ireland Assembly a statement explaining that and the reasons for it.
(8) The Department must publish the documents laid under sub-paragraph (6) or (7).
(9) A review is completed when the Department has laid and published the documents mentioned in sub-paragraph (6) or (7).
(10) References in this Schedule to an environmental improvement plan include a revised environmental improvement plan.
Renewing environmental improvement plans
4 (1) This paragraph applies where an environmental improvement plan relates to a period specified in the plan.
(2) Before the end of the period to which the environmental improvement plan (the “old plan”) relates, the Department must prepare a new environmental improvement plan (the “new plan”).
(3) If the new plan relates to a period specified in the plan, that period must begin no later than immediately after the end of the period to which the old plan relates.
(4) In preparing the new plan the Department must—
(a) consider what has been done to implement the old plan,
(b) consider whether, having regard to data obtained under paragraph 5 and reports made by the OEP under paragraph 1 of Schedule 3, the natural environment has improved since the beginning of the period to which the old plan relates,
(c) consider whether any Northern Ireland department should take further or different steps to improve the natural environment (compared to those set out in the old plan) after the end of that period, and
(d) consult such other Northern Ireland departments as it considers appropriate.
(5) At or before the end of the period to which the old plan relates the Department must lay before the Northern Ireland Assembly, and publish, the new plan.
(6) The new plan replaces the old plan when—
(a) it has been laid and published, and
(b) if it relates to a period specified in the new plan, that period has begun.
Environmental monitoring
5 (1) The Department must make arrangements for obtaining such data about the natural environment as the Department considers appropriate for the purpose of monitoring whether the natural environment is, or particular aspects of it are, improving in accordance with the current environmental improvement plan.
(2) The Department must lay before the Northern Ireland Assembly, and publish, a statement setting out the kinds of data to be obtained under sub-paragraph (1).
(3) The first statement must be laid before the end of the 4 month period beginning with the day on which this paragraph comes into force.
(4) The Department may revise the statement at any time (and sub-paragraph (2) applies to any revised statement).
(5) The Department must publish any data obtained under sub-paragraph (1).
PART 2 Policy statement on environmental principles
Policy statement on environmental principles
6 (1) The Department must prepare a policy statement on environmental principles in accordance with this paragraph and paragraph 7.
(2) A “policy statement on environmental principles” is a statement explaining how the environmental principles should be interpreted and proportionately applied—
(a) by Northern Ireland departments when making policy, and
(b) by Ministers of the Crown when making policy so far as relating to Northern Ireland.
(3) It may also explain how Northern Ireland departments and Ministers of the Crown, when interpreting and applying the environmental principles, should take into account other considerations relevant to their policy.
(4) The Department must be satisfied that the statement will, when it comes into effect, contribute to—
(a) the improvement of environmental protection, and
(b) sustainable development.
(5) In this Schedule “environmental principles” means the following principles—
(a) the principle that environmental protection should be integrated into the making of policies,
(b) the principle of preventative action to avert environmental damage,
(c) the precautionary principle, so far as relating to the environment,
(d) the principle that environmental damage should as a priority be rectified at source, and
(e) the polluter pays principle.
Policy statement on environmental principles: process
7 (1) The Department must prepare a draft of the policy statement on environmental principles.
(2) The Department must consult—
(a) the other Northern Ireland departments,
(b) the Secretary of State, and
(c) such other persons as the Department considers appropriate,
in relation to the draft statement.
(3) The Department must lay the draft statement before the Northern Ireland Assembly.
(4) If before the end of the 21 day period the Northern Ireland Assembly passes a resolution in respect of the draft statement, the Department must produce a response and lay it before the Assembly.
(5) The Department must prepare and lay before the Northern Ireland Assembly the final statement, but not before—
(a) if sub-paragraph (4) applies, the day on which the Department lays the response required by that sub-paragraph, or
(b) otherwise, the end of the 21 day period.
(6) The final statement has effect when it is laid before the Northern Ireland Assembly.
(7) The Department must publish the statement when it comes into effect.
(8) The “21 day period” is the period of 21 sitting days beginning with the first sitting day after the day on which the draft statement is laid under sub-paragraph (3).
(9) “Sitting day” means a day on which the Northern Ireland Assembly sits.
(10) The requirements in sub-paragraphs (1) and (2) may be met by the preparation of a draft statement, and consultation, before this paragraph comes into force.
(11) The Department may prepare a revised policy statement on environmental principles at any time (and sub-paragraphs (1) to (9) apply in relation to any revised statement).
Policy statement on environmental principles: effect
8 (1) A Northern Ireland department must, when making policy, have due regard to the policy statement on environmental principles currently in effect.
(2) A Minister of the Crown must, when making policy so far as relating to Northern Ireland, have due regard to the policy statement on environmental principles currently in effect.
(3) Nothing in this paragraph requires a Northern Ireland department or a Minister of the Crown to do anything (or refrain from doing anything) if doing it (or refraining from doing it)—
(a) would have no significant environmental benefit, or
(b) would be in any other way disproportionate to the environmental benefit.
(4) Sub-paragraph (1) does not apply to policies so far as relating to taxation, spending or the allocation of resources within government.
(5) Sub-paragraph (2) does not apply to policies so far as relating to—
(a) the armed forces, defence or national security, or
(b) taxation, spending or the allocation of resources within government.
PART 3 Interpretation
Meaning of “natural environment”
9 In this Schedule the “natural environment” means—
(a) plants, wild animals and other living organisms,
(b) their habitats,
(c) land (except buildings or other structures), air and water,
and the natural systems, cycles and processes through which they interact.
Meaning of “environmental protection”
10 In this Schedule “environmental protection” means any of the following—
(a) protection of the natural environment from the effects of human activity;
(b) protection of people from the effects of human activity on the natural environment;
(c) maintenance, restoration or enhancement of the natural environment;
(d) monitoring, assessing, considering, advising or reporting on anything in paragraphs (a) to (c).
General interpretation
11 (1) In this Schedule—
“current environmental improvement plan” has the meaning given by paragraph 1(8);
the “Department” means the Department of Agriculture, Environment and Rural Affairs in Northern Ireland;
“environmental improvement plan” has the meaning given by paragraph 1 (and see also paragraph 3(10));
“environmental principles” has the meaning given by paragraph 6(5);
“improving the natural environment”, in relation to an environmental improvement plan, is to be read in accordance with paragraph 1(5);
“making” policy includes developing, adopting or revising policy;
“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975;
“OEP” has the meaning given by section 22;
“policy” includes proposals for legislation, but does not include an administrative decision taken in relation to a particular person or case (for example, a decision on an application for planning permission, funding or a licence, or a decision about regulatory enforcement);
“policy statement on environmental principles” has the meaning given by paragraph 6.
(2) Section 41(3) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) applies in relation to the laying of a document before the Northern Ireland Assembly under this Schedule, as it applies in relation to the laying of a statutory document under an Act of the Northern Ireland Assembly.
SCHEDULE 3 The Office for Environmental Protection: Northern Ireland
Section 49
PART 1 The OEP’s Northern Ireland functions
Monitoring and reporting on the Department’s environmental improvement plans
1 (1) The OEP must monitor progress in improving the natural environment in accordance with the current environmental improvement plan.
(2) The OEP must prepare a progress report for each annual reporting period.
(3) A progress report for an annual reporting period is a report on progress made in that period in improving the natural environment in accordance with the current environmental improvement plan.
(4) An annual reporting period is a period for which the Department must prepare a report under paragraph 2 of Schedule 2 (a “Schedule 2 report”).
(5) In reporting on progress made in an annual reporting period, the OEP must consider—
(a) the Schedule 2 report for that period,
(b) the data published by the Department under paragraph 5 of Schedule 2 that relates to that period, and
(c) any other reports, documents or information it considers appropriate.
(6) A progress report for an annual reporting period may include—
(a) consideration of how progress could be improved, and
(b) consideration of the adequacy of the data published by the Department under paragraph 5 of Schedule 2.
(7) The OEP must—
(a) arrange for its reports under this paragraph to be laid before the Northern Ireland Assembly, and
(b) publish them.
(8) A progress report for an annual reporting period must be laid no later than 6 months after the Schedule 2 report for that period is laid before the Northern Ireland Assembly.
(9) The Department must—
(a) respond to a report under this paragraph, and
(b) lay before the Northern Ireland Assembly, and publish, a copy of the response.
(10) Where a report under this paragraph contains a recommendation for how progress could be improved, the response must address that recommendation.
(11) The response—
(a) must be laid no later than 12 months after the report is laid, and
(b) may be included in a Schedule 2 report.
Monitoring and reporting on environmental law
2 (1) The OEP must monitor the implementation of Northern Ireland environmental law.
(2) The OEP may report on any matter concerned with the implementation of Northern Ireland environmental law.
(3) But the OEP must not monitor the implementation of, or report on, a matter within the remit of the Committee on Climate Change.
(4) A matter is within the remit of the Committee on Climate Change if it is a matter on which the Committee is, or may be, required to advise or report under Part 1, sections 34 to 36, or section 48 of the Climate Change Act 2008.
(5) The OEP must—
(a) arrange for its reports under this paragraph to be laid before the Northern Ireland Assembly, and
(b) publish them.
(6) The Department must—
(a) respond to a report under this paragraph, and
(b) lay before the Northern Ireland Assembly, and publish, a copy of the response.
(7) The response to a report under this paragraph must be laid no later than 3 months after the report is laid.
Advising on changes to Northern Ireland environmental law etc
3 (1) The OEP must give advice to any Northern Ireland department about—
(a) any proposed change to Northern Ireland environmental law, or
(b) any other matter relating to the natural environment,
on which that department requires it to give advice.
(2) The Northern Ireland department may specify matters which the OEP is to take into account in giving the required advice.
(3) The OEP may give advice to any Northern Ireland department about any changes to Northern Ireland environmental law proposed by that department.
(4) Advice under this paragraph is to be given in writing to the Northern Ireland department concerned.
(5) The OEP must publish—
(a) its advice, and
(b) if the advice is given under sub-paragraph (1), a statement of the matter on which it was required to give advice and any matters specified under sub-paragraph (2).
(6) The Northern Ireland department concerned may, if it thinks fit, lay before the Northern Ireland Assembly—
(a) the advice, and
(b) any response that department may make to the advice.
Failure of relevant public authorities to comply with environmental law
4 (1) Paragraphs 6 to 15 make provision about functions of the OEP in relation to failures by relevant public authorities to comply with relevant environmental law.
(2) For the purposes of those paragraphs, a reference to a relevant public authority failing to comply with relevant environmental law means the following conduct by that authority—
(a) unlawfully failing to take proper account of relevant environmental law when exercising its functions;
(b) unlawfully exercising, or failing to exercise, any function it has under relevant environmental law.
Meaning of relevant environmental law, relevant public authority etc
5 (1) The following definitions apply for the purpose of this Part of this Schedule.
(2) “Relevant environmental law” means—
(a) in relation to a Northern Ireland public authority, UK environmental law or Northern Ireland environmental law;
(b) in relation to any other relevant public authority, Northern Ireland environmental law.
(3) “Relevant public authority” means—
(a) a Northern Ireland public authority, or
(b) a person, other than a Northern Ireland public authority, carrying out any function of a public nature in or as regards Northern Ireland that is not a parliamentary function or a function of any of the following persons—
(i) the OEP;
(ii) a court or tribunal;
(iii) either House of Parliament;
(iv) the Northern Ireland Assembly.
(4) “Northern Ireland public authority” means—
(a) a Northern Ireland department, or
(b) a person carrying out a Northern Ireland devolved function (including an implementation body carrying out such a function) that is not a function in connection with proceedings in the Northern Ireland Assembly or a function of any of the following persons—
(i) the OEP;
(ii) a court or tribunal;
(iii) the Northern Ireland Assembly.
(5) “Northern Ireland devolved function” means a function of a public nature exercisable in or as regards Northern Ireland that could be conferred by provision included in an Act of the Northern Ireland Assembly made without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998).
Complaints about relevant public authorities
6 (1) A person may make a complaint to the OEP under this paragraph if the person believes that a relevant public authority has failed to comply with relevant environmental law.
(2) The OEP must prepare and publish a document which sets out the procedure by which complaints can be made.
(3) A complaint under this paragraph must be made in accordance with that procedure (as most recently published).
(4) A complaint under this paragraph may not be made by any person whose functions include functions of a public nature.
(5) A complaint about a relevant public authority may not be made under this paragraph if—
(a) the authority operates a procedure for considering complaints (“an internal complaints procedure”) under which the complaint could be considered, and
(b) that procedure has not been exhausted.
(6) A complaint under this paragraph may not be made after the later of—
(a) the end of the 1 year period beginning with the day on which the alleged failure that is the subject of the complaint last occurred, and
(b) if the substance of the complaint was subject to an internal complaints procedure, the end of the 3 month period beginning with the day on which that procedure was exhausted.
(7) The OEP may waive the time limit in sub-paragraph (6) if it considers that there are exceptional reasons for doing so.
Investigations: relevant public authorities
7 (1) The OEP may carry out an investigation under this paragraph if it receives a complaint made under paragraph 6 that, in its view, indicates that—
(a) a relevant public authority may have failed to comply with relevant environmental law, and
(b) if it has, the failure would be a serious failure.
(2) The OEP may carry out an investigation under this paragraph without having received such a complaint if it has information that, in its view, indicates that—
(a) a relevant public authority may have failed to comply with relevant environmental law, and
(b) if it has, the failure would be a serious failure.
(3) An investigation under this paragraph is an investigation into whether the relevant public authority has failed to comply with relevant environmental law.
(4) The OEP must notify the relevant public authority of the commencement of the investigation.
(5) The OEP must prepare a report on the investigation and provide it to the relevant public authority.
(6) The OEP is not required to prepare a report until it has concluded that it intends to take no further steps under this Part of this Schedule in relation to the alleged failure to comply with relevant environmental law that is the subject of the investigation.
(7) The OEP is not required to prepare a report if it has made a review application, or an application for judicial review by virtue of paragraph 13(1), in relation to the alleged failure.
(8) The report must set out—
(a) whether the OEP considers that the relevant public authority has failed to comply with relevant environmental law,
(b) the reasons the OEP came to that conclusion, and
(c) any recommendations the OEP may have (whether generally or for the relevant public authority) in light of those conclusions.
(9) The OEP may publish the report or parts of it.
(10) If the public authority is not a Northern Ireland department, the OEP must also—
(a) notify the relevant department of the commencement of the investigation, and
(b) provide the relevant department with the report prepared under sub-paragraph (5).
(11) In this Part “the relevant department”, in relation to a failure (or alleged failure) of a relevant public authority to comply with relevant environmental law, means the Northern Ireland department that the OEP considers appropriate having regard to the nature of the authority and the nature of the failure.
Duty to keep complainants informed
8 (1) Where a person makes a complaint to the OEP alleging that a relevant public authority has failed to comply with relevant environmental law, the OEP must keep the complainant informed about its handling of the complaint.
(2) In particular, the OEP must—
(a) notify the complainant if it does not intend to consider the complaint because the complaint was not made in accordance with paragraph 6;
(b) notify the complainant if it has concluded that it will not be commencing an investigation under paragraph 7 in relation to the complaint;
(c) notify the complainant if it commences an investigation under paragraph 7 in relation to the complaint;
(d) if such an investigation is commenced, notify the complainant—
(i) where it provides a report under paragraph 7(5) to the relevant public authority that is the subject of the investigation, that it has provided it;
(ii) where it makes a review application (see paragraph 12), or an application for judicial review by virtue of paragraph 13(1), in relation to the alleged failure to comply with relevant environmental law that is the subject of the investigation, that it has made such an application;
(e) provide the complainant with a copy of any document published under paragraph 7(9) in relation to any investigation in relation to the complaint.
Information notices
9 (1) The OEP may give an information notice to a relevant public authority if—
(a) the OEP has reasonable grounds for suspecting that the authority has failed to comply with relevant environmental law, and
(b) it considers that the failure, if it occurred, would be serious.
(2) An information notice is a notice which—
(a) describes an alleged failure of a relevant public authority to comply with relevant environmental law,
(b) explains why the OEP considers that the alleged failure, if it occurred, would be serious, and
(c) requests that the authority provide such information relating to the allegation as may be specified in the notice.
(3) The recipient of an information notice must—
(a) respond in writing to the notice, and
(b) so far as is reasonably practicable, provide the OEP with the information requested in the notice.
(4) The recipient of an information notice must comply with sub-paragraph (3) by—
(a) the end of the 2 month period beginning with the day on which the notice was given, or
(b) such later date as may be specified in the notice.
(5) The written response to an information notice must set out—
(a) the recipient’s response to the allegation described in the notice, and
(b) what steps (if any) the recipient intends to take in relation to the allegation.
(6) The OEP may—
(a) withdraw an information notice;
(b) give more than one information notice in respect of the same alleged failure of a relevant public authority to comply with relevant environmental law.
(7) Where the OEP intends to give an information notice to a relevant public authority in respect of an alleged failure to comply with relevant environmental law which relates to emissions of greenhouse gases (within the meaning of the Climate Change Act 2008), the OEP—
(a) must notify the Committee on Climate Change of its intention before it gives the notice to the authority, and
(b) must provide that Committee with such information relating to the alleged failure as the OEP considers appropriate.
Decision notices
10 (1) The OEP may give a decision notice to a relevant public authority if—
(a) the OEP is satisfied, on the balance of probabilities, that the authority has failed to comply with relevant environmental law, and
(b) it considers that the failure is serious.
(2) A decision notice is a notice that—
(a) describes a failure of a relevant public authority to comply with relevant environmental law,
(b) explains why the OEP considers that the failure is serious, and
(c) sets out the steps the OEP considers the authority should take in relation to the failure (which may include steps designed to remedy, mitigate or prevent reoccurrence of the failure).
(3) The recipient of a decision notice must respond in writing to that notice by—
(a) the end of the 2 month period beginning with the day on which the notice was given, or
(b) such later date as may be specified in the notice.
(4) The written response to a decision notice must set out—
(a) whether the recipient agrees that the failure described in the notice occurred,
(b) whether the recipient intends to take the steps set out in the notice, and
(c) what other steps (if any) the recipient intends to take in relation to the failure described in the notice.
(5) The OEP—
(a) may not give a decision notice to a relevant public authority unless it has first given at least one information notice relating to the failure of the authority to comply with relevant environmental law that is described in the decision notice;
(b) may withdraw a decision notice.
Linked notices
11 (1) If the OEP gives an information notice or a decision notice to more than one relevant public authority in respect of the same or similar conduct, it may determine that those notices are linked.
(2) A Northern Ireland department may request that the OEP determine that information notices or decision notices are linked and the OEP must have regard to that request.
(3) The OEP must provide the recipient of an information notice or a decision notice (a “principal notice”) with a copy of every information notice or decision notice which is linked to it (and such a notice is referred to in this section as a “linked notice”).
(4) The OEP must provide the recipient of a principal notice with a copy of any relevant correspondence, relating to a linked notice, between the OEP and the recipient of that linked notice.
(5) The OEP must provide the recipient of a principal notice with a copy of any relevant correspondence between the OEP and the relevant department that relates to a linked notice.
(6) Sub-paragraph (5) does not apply where either the recipient of the principal notice or the linked notice is a Northern Ireland department.
(7) If the OEP considers that an information notice or a decision notice relates to conduct that is the same as or similar to conduct that is the subject of a UK information notice or UK decision notice, it may determine that those notices are linked.
(8) The OEP must provide the recipient of an information notice or a decision notice with—
(a) a copy of every UK information notice or UK decision notice which is linked to it, and
(b) a copy of any relevant correspondence, relating to such a notice, between the OEP and the recipient of that notice.
(9) The obligation to provide a copy of any notice or correspondence under this paragraph does not apply where the OEP considers that in the circumstances it would not be in the public interest to do so.
(10) For the purposes of this paragraph, correspondence is relevant if—
(a) it is not correspondence in connection with a review application or any other legal proceedings, and
(b) it is not correspondence sent by virtue of paragraph 14(1)(a) or (b).
(11) In this Part of this Schedule—
“UK decision notice” means a notice given under section 36;
“UK information notice” means a notice given under section 35.
Review application
12 (1) The OEP may make a review application in relation to conduct described in a decision notice given to a relevant public authority as a failure of the authority to comply with relevant environmental law, but only if—
(a) it is satisfied, on the balance of probabilities, that the authority has failed to comply with relevant environmental law, and
(b) it considers that the failure is serious.
(2) A review application is an application for judicial review in respect of conduct of a relevant public authority, and any reference in this Part of this Schedule to a review application is to an application made by virtue of sub-paragraph (1).
(3) A review application may not be made before the earlier of—
(a) the end of the period within which the authority must respond to the decision notice that precedes the application (see paragraph 10(3)), and
(b) the date on which the OEP receives the authority’s response to that notice.
(4) Subject to that, the OEP may make a review application at any time (and accordingly any time limit, that would otherwise apply to the making of a review application, does not apply).
(5) The High Court may grant a remedy on a review application only if Condition A or Condition B is met.
(6) Condition A is that the court is satisfied that granting the remedy would not—
(a) be likely to cause substantial hardship to, or substantially prejudice the rights of, any person other than the authority, or
(b) be detrimental to good administration.
(7) Condition B is that Condition A is not met but the court is satisfied that—
(a) granting the remedy is necessary in order to prevent or mitigate serious damage to the natural environment or to human health, and
(b) there is an exceptional public interest reason to grant it.
(8) If, on a review application, there is a finding that a relevant public authority has failed to comply with relevant environmental law, and the finding has not been overturned on appeal, the authority must publish a statement that sets out the steps it intends to take in light of the finding.
(9) A statement under sub-paragraph (8) must be published before the end of the 2 month period beginning with the day the proceedings relating to the review application (including any appeal) conclude.
(10) In this Part of this Schedule reference to an application for judicial review includes an application for the permission of the High Court to apply for judicial review.
Judicial review: powers to apply to prevent serious damage and to intervene
13 (1) The OEP may make an application for judicial review in relation to conduct of a relevant public authority (whether or not it has given an information notice or a decision notice to the authority in respect of that conduct) if—
(a) the OEP considers that the conduct constitutes a serious failure to comply with relevant environmental law, and
(b) the urgency condition is met.
(2) The urgency condition is that making an application under sub-paragraph (1) (rather than proceeding under paragraphs 9 to 12) is necessary to prevent, or mitigate, serious damage to the natural environment or to human health.
(3) If, on an application for judicial review made by virtue of sub-paragraph (1), there is a finding that a relevant public authority has failed to comply with relevant environmental law, and the finding has not been overturned on appeal, the authority must publish a statement that sets out the steps it intends to take in light of the finding.
(4) A statement under sub-paragraph (3) must be published before the end of the 2 month period beginning with the day the proceedings relating to the application for judicial review (including any appeal) conclude.
(5) Sub-paragraph (6) applies to proceedings (including any appeal) that—
(a) are in respect of an application for judicial review, and
(b) relate to an alleged failure by a relevant public authority to comply with relevant environmental law (however the allegation is framed in those proceedings).
(6) If the OEP considers that the alleged failure, if it occurred, would be serious, it may apply to intervene in the proceedings (whether it considers that the relevant public authority has, or has not, failed to comply with relevant environmental law).
Duty of the OEP to involve the relevant department
14 (1) Where the recipient of an information notice or a decision notice is not a Northern Ireland department, the OEP must—
(a) provide the relevant department with—
(i) a copy of the notice, and
(ii) a copy of any correspondence between the OEP and the recipient of the notice that relates to the notice (apart from correspondence sent by virtue of paragraph (b)), and
(b) provide the recipient of the notice with a copy of any correspondence between the OEP and the relevant department that relates to the notice (apart from correspondence sent by virtue of paragraph (a)).
(2) The obligation to provide a copy of any notice or correspondence under sub-paragraph (1) does not apply where the OEP considers that in the circumstances it would not be in the public interest to do so.
(3) Where the OEP makes a review application, or an application for judicial review by virtue of paragraph 13(1), in which the relevant department is not a party, it must provide the relevant department with—
(a) a copy of the application, and
(b) a statement of whether the OEP considers the relevant department should participate in the review (for example, by applying to be a party).
Public statements
15 (1) Where the OEP gives an information notice or a decision notice, makes a review application or an application for judicial review by virtue of paragraph 13(1) or applies to intervene in a judicial review, it must publish a statement that—
(a) states that the OEP has taken that step,
(b) describes the failure (or alleged failure) of a relevant public authority to comply with relevant environmental law in relation to which that step was taken, and
(c) sets out such further information as the OEP considers appropriate.
(2) Sub-paragraph (1) does not apply if the OEP considers that in the circumstances it would not be in the public interest to publish a statement.
Disclosures to the OEP
16 (1) No obligation of secrecy imposed by statute or otherwise prevents a person from—
(a) in accordance with section 27(1), providing the OEP with information in connection with an investigation under paragraph 7, an information notice or a decision notice, or
(b) providing information to the OEP in accordance with paragraph 9(3)(b).
(2) But nothing in this Part of this Schedule—
(a) requires a person to provide the OEP with information that the person would be entitled to refuse to provide in civil proceedings on grounds of legal professional privilege (or, in Scotland, confidentiality of communications), or
(b) requires a person to provide the OEP with information that the person would be entitled, or required by any rule of law, to refuse to provide in civil proceedings on grounds of public interest immunity.
(3) No obligation of secrecy imposed by statute or otherwise prevents the Northern Ireland Public Services Ombudsman from providing information to the OEP—
(a) for purposes connected with the exercise of the OEP’s functions under paragraph 7;
(b) for purposes connected with the co-ordination of the OEP’s functions that relate to investigations under paragraph 7 and the Ombudsman’s functions that relate to investigations by the Ombudsman.
(4) Nothing in this Part of this Schedule requires or authorises a disclosure of information that would contravene the data protection legislation (but in determining whether a disclosure would do so, take into account the duties imposed and powers conferred by this Part of this Schedule).
(5) In this paragraph “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3(9) of that Act).
Confidentiality of proceedings
17 (1) The OEP must not disclose—
(a) information obtained under paragraph 9(3)(b), or
(b) correspondence between the OEP and a relevant public authority that—
(i) relates to a particular information notice or decision notice, or
(ii) is, or contains, such a notice.
(2) Sub-paragraph (1) does not apply to a disclosure—
(a) other than a disclosure of an information notice or a decision notice, made with the consent of the person who provided the information or correspondence;
(b) made for purposes connected with an investigation under paragraph 7 or section 33;
(c) made for purposes connected with the co-ordination of the OEP’s functions that relate to investigations under paragraph 7 and the Northern Ireland Public Services Ombudsman’s functions that relate to investigations by the Ombudsman;
(d) made for purposes connected with the co-ordination of the OEP’s functions that relate to investigations under section 33 and functions of a relevant ombudsman that relate to investigations by that ombudsman;
(e) made for the purposes of any publication of a report (or part of it) on an investigation under paragraph 7 or section 33;
(f) made for purposes connected with the exercise of the OEP’s functions under paragraphs 9 to 15 or sections 35 to 41 (enforcement);
(g) made to a devolved environmental governance body for purposes connected with the exercise of a devolved environmental governance function;
(h) made for purposes connected with the protection of the natural environment in a country or territory outside the United Kingdom, to an authority of that country or territory, or an international organisation, that has functions in connection with the protection of the natural environment in that country or territory;
(i) of information, or correspondence, that relates only to a matter in relation to which the OEP has concluded that it intends to take no further steps under this Part of this Schedule or under Chapter 2 of Part 1 of this Act.
(3) A relevant public authority must not disclose correspondence between the OEP and that, or any other, relevant public authority that—
(a) relates to a particular information notice, decision notice, UK information notice or UK decision notice, or
(b) is, or contains, such a notice.
(4) Sub-paragraph (3) does not apply to a disclosure—
(a) made—
(i) in the case of a disclosure of correspondence between another relevant public authority and the OEP other than correspondence that is, or contains, an information notice, a decision notice, a UK information notice or a UK decision notice, with the consent of that authority and the OEP, or
(ii) in any other case, with the specific or general consent of the OEP;
(b) made for purposes connected with co-operating with any investigation under paragraph 7 or section 33;
(c) made for purposes connected with responding to any information notice or decision notice;
(d) made for purposes connected with any proceedings in relation to a review application, an environmental review, a judicial review or a statutory review (within the meaning given by section 39(8)(b)).
(5) The OEP may not give a person consent to disclose an information notice, a decision notice, a UK information notice or a UK decision notice unless that notice relates only to a matter in relation to which the OEP has concluded that it intends to take no further steps under this Part of this Schedule or under Chapter 2 of Part 1 of this Act.
(6) If a relevant public authority requests the consent of the OEP to disclose correspondence that relates only to a matter in relation to which the OEP has concluded that it intends to take no further steps under this Part of this Schedule or under Chapter 2 of Part 1 of this Act, the OEP may not withhold that consent.
(7) If information referred to in sub-paragraph (1) and held by the OEP, or referred to in sub-paragraph (3) and held by a relevant public authority, is environmental information for the purposes of the Environmental Information Regulations 2004 (S.I. 2004/3391) or the Environmental Information (Scotland) Regulations 2004 (S.S.I. 2004/520), it is held by that person, for the purposes of the application of those regulations to that information, in connection with confidential proceedings.
Meaning of UK environmental law and Northern Ireland environmental law
18 (1) In this Part of this Schedule “UK environmental law” means anything that is environmental law for the purposes of Part 1 of this Act (see section 46), but not anything that is environmental law only for the purposes of section 20.
(2) In this Part of this Schedule “Northern Ireland environmental law” means any Northern Ireland legislative provision that—
(a) is mainly concerned with environmental protection, and
(b) is not concerned with an excluded matter.
(3) Excluded matters are—
(a) disclosure of or access to information;
(b) taxation, spending or the allocation of resources within government.
(4) “Northern Ireland legislative provision” means—
(a) legislative provision contained in, or in an instrument made under, Northern Ireland legislation, and
(b) legislative provision not within paragraph (a) which, if contained in an Act of the Northern Ireland Assembly, would be within the legislative competence of the Assembly and would not require the Secretary of State’s consent.
(5) The Department may by regulations provide that a Northern Ireland legislative provision specified in the regulations is, or is not, within the definition of “Northern Ireland environmental law” in sub-paragraph (2) (and this Part of this Schedule applies accordingly).
(6) Before making regulations under sub-paragraph (5) the Department must consult—
(a) the OEP, and
(b) any other persons the Department considers appropriate.
(7) Regulations under sub-paragraph (5) are subject to the affirmative procedure.
Interpretation of Part 1 of this Schedule: general
19 (1) In this Part of this Schedule—
“application for judicial review” is to be read in accordance with paragraph 12(10);
“current environmental improvement plan” has the meaning it has in Schedule 2 (see paragraph 1(8) of that Schedule);
“decision notice” means a notice given under paragraph 10;
“the Department” means the Department of Agriculture, Environment and Rural Affairs in Northern Ireland;
“devolved environmental governance body” has the meaning it has in Part 1 of this Act (see section 47);
“devolved environmental governance function” has the meaning it has in Part 1 of this Act (see section 47);
“environmental improvement plan” has the meaning it has in Schedule 2 (see paragraphs 1 and 3(10) of that Schedule);
“environmental protection” has the meaning it has in Schedule 2 (see paragraph 10 of that Schedule);
“environmental review” has the meaning it has in Part 1 of this Act (see section 38);
“implementation body” has the meaning it has in section 55 of the Northern Ireland Act 1998 (see subsection (3) of that section);
“improving the natural environment”, in relation to an environmental improvement plan, is to be read in accordance with paragraph 1(5) of Schedule 2;
“information notice” means a notice given under paragraph 9;
“natural environment” has the meaning it has in Schedule 2 (see paragraph 9 of that Schedule);
“Northern Ireland devolved function” has the meaning given by paragraph 5(5);
“OEP” has the meaning given by section 22;
“parliamentary function” means a function in connection with proceedings in Parliament or the Northern Ireland Assembly;
“relevant department” has the meaning given by paragraph 7(11);
“relevant environmental law” has the meaning given by paragraph 5(2);
“relevant ombudsman” has the meaning it has in Part 1 of this Act (see section 23);
“relevant public authority” has the meaning given by paragraph 5(3);
“review application” has the meaning given by paragraph 12(2);
“UK decision notice” has the meaning given by paragraph 11(11);
“UK information notice” has the meaning given by paragraph 11(11).
(2) Section 41(3) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) applies in relation to the laying of a document before the Northern Ireland Assembly under this Part of this Schedule, as it applies in relation to the laying of a statutory document under an Act of the Northern Ireland Assembly.
PART 2 Amendments of the OEP’s general functions
20 This Act is amended in accordance with paragraphs 21 to 30.
21 (1) Section 23 (principal objective of the OEP and exercise of its functions) is amended as follows.
(2) In subsection (6)—
(a) after paragraph (a) insert—
(aa) how the OEP intends to determine whether failures to comply with relevant environmental law are serious for the purposes of paragraphs 7(1)(b) and (2)(b), 9(1)(b), 10(1)(b), 12(1)(b) and 13(1) and (6) of Schedule 3,
;
(b) at the end of paragraph (b) insert “or paragraph 13(2) of Schedule 3,”;
(c) omit the “and” at the end of paragraph (d);
(d) after paragraph (d) insert—
(da) how the OEP intends to avoid any overlap between the exercise of its functions under paragraphs 6 to 8 of Schedule 3 (complaints) and the exercise by the Northern Ireland Public Services Ombudsman of its functions, and
.
(3) In subsection (7)(c) after “environmental law” insert “or Northern Ireland environmental law”.
(4) After subsection (7) insert—
(7A) In this section “relevant environmental law” and “Northern Ireland environmental law” have the meanings they have in Part 1 of Schedule 3 (see paragraphs 5 and 18(2) of that Schedule).
(5) In subsection (8) after “sections 32 to 41” insert “and paragraphs 6 to 15 of Schedule 3”.
22 In section 24 (the OEP’s strategy: process), in subsection (1)(a) after “Parliament” insert “and the Northern Ireland Assembly”.
23 (1) Section 25 (guidance on the OEP’s enforcement policy and functions) is amended as follows.
(2) At the end of subsection (1) insert “, so far as relating to the OEP’s Part 1 enforcement functions.”
(3) In subsection (2)—
(a) in paragraph (a) after “policy,” insert “so far as relating to its Part 1 enforcement functions,”;
(b) in paragraph (b) for “enforcement functions” substitute “Part 1 enforcement functions”.
(4) In subsection (3) for “enforcement functions” substitute “Part 1 enforcement functions”.
24 After section 25 (guidance on the OEP’s enforcement policy and functions) insert—
Guidance on the OEP’s Northern Ireland enforcement policy and functions
25A (1) The Department of Agriculture, Environment and Rural Affairs in Northern Ireland may issue guidance to the OEP on the matters listed in section 23(6) (OEP’s enforcement policy), so far as relating to the OEP’s Northern Ireland enforcement functions.
(2) The OEP must have regard to the guidance in—
(a) preparing its enforcement policy, so far as relating to its Northern Ireland enforcement functions, and
(b) exercising its Northern Ireland enforcement functions.
(3) The OEP’s “Northern Ireland enforcement functions” are its functions under paragraphs 6 to 15 of Schedule 3.
(4) Before issuing the guidance, the Department must—
(a) prepare a draft, and
(b) lay the draft before the Northern Ireland Assembly.
(5) If before the end of the 21 day period the Northern Ireland Assembly passes a resolution in respect of the draft guidance, the Department must produce a response and lay it before the Assembly.
(6) The Department may prepare and lay before the Northern Ireland Assembly the final guidance, but not before—
(a) if subsection (5) applies, the day on which the Department lays the response required by that subsection, or
(b) otherwise, the end of the 21 day period.
(7) The final guidance has effect when it is laid before the Northern Ireland Assembly.
(8) The Department must publish the guidance when it comes into effect.
(9) The “21 day period” is the period of 21 sitting days beginning with the first sitting day after the day on which the draft guidance is laid under subsection (4).
(10) “Sitting day” means a day on which the Northern Ireland Assembly sits.
(11) The Department may revise the guidance at any time (and subsections (4) to (10) apply in relation to any revised guidance).
25 (1) Section 27 (co-operation duties of public authorities and the OEP) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (d) for “, the Welsh Ministers, a Northern Ireland department or a Minister within the meaning of the Northern Ireland Act 1998” substitute “or the Welsh Ministers”;
(b) in paragraph (f) for “devolved functions” substitute “Scottish devolved functions or Welsh devolved functions”.
(3) In subsection (3) for “devolved functions”, in both places it occurs, substitute “Scottish devolved functions or Welsh devolved functions”.
(4) After subsection (3) insert—
(3A) An implementation body is only required to co-operate with the OEP by virtue of subsection (1) to the extent that co-operation is in relation to functions of that body exercisable in or as regards Northern Ireland.
In this subsection “implementation body” has the meaning it has in section 55 of the Northern Ireland Act 1998 (see subsection (3) of that section).
26 In section 37 (linked notices), after subsection (6) insert—
(6A) If the OEP considers that an information notice or a decision notice relates to conduct that is the same as or similar to conduct that is the subject of a Northern Ireland information notice or Northern Ireland decision notice, it may determine that those notices are linked.
(6B) The OEP must provide the recipient of an information notice or a decision notice with—
(a) a copy of every Northern Ireland information notice or Northern Ireland decision notice which is linked to it, and
(b) a copy of any relevant correspondence, relating to such a notice, between the OEP and the recipient of that notice.
27 (1) Section 43 (confidentiality of proceedings) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (b) after “(investigations)” insert “or paragraph 7 of Schedule 3 (functions of the OEP in Northern Ireland)”;
(b) after paragraph (c) insert—
(ca) made for purposes connected with the co-ordination of the OEP’s functions that relate to investigations under paragraph 7 of Schedule 3 and the Northern Ireland Public Services Ombudsman’s functions that relate to investigations by the Ombudsman;
;
(c) in paragraph (d) after “section 33” insert “or paragraph 7 of Schedule 3”;
(d) in paragraph (e) after “sections 35 to 41” insert “or paragraphs 9 to 15 of Schedule 3”;
(e) in paragraph (h) after “this Chapter” insert “or Part 1 of Schedule 3”.
(3) In subsection (3)(a) for “or decision notice” substitute “, decision notice, Northern Ireland information notice or Northern Ireland decision notice”.
(4) In subsection (4)—
(a) in paragraph (a)(i) for “or a decision notice” substitute “, a decision notice, a Northern Ireland information notice or a Northern Ireland decision notice”;
(b) in paragraph (b) after “section 33” insert “or paragraph 7 of Schedule 3”;
(c) in paragraph (d) after “judicial review” insert “(which includes a review application)”.
(5) In subsection (5)—
(a) for “or a decision notice” substitute “, a decision notice, a Northern Ireland information notice or a Northern Ireland decision notice”;
(b) after “this Chapter” insert “or Part 1 of Schedule 3”.
(6) In subsection (6) after “this Chapter” insert “or Part 1 of Schedule 3”.
28 (1) Section 47 (interpretation of Part 1 of the Act) is amended as follows.
(2) The existing text becomes subsection (1).
(3) In that subsection—
(a) in the definition of “devolved environmental governance function”—
(i) for “devolved function” substitute “Scottish devolved function or Welsh devolved function”;
(ii) after “this Part” insert “or Part 1 of Schedule 3 (functions of the OEP in Northern Ireland)”;
(b) at the appropriate places insert—
“Northern Ireland decision notice” means a notice given under paragraph 10 of Schedule 3 (functions of the OEP in Northern Ireland);
;
“Northern Ireland information notice” means a notice given under paragraph 9 of Schedule 3;
;
“review application” has the meaning it has in Part 1 of Schedule 3 (see paragraph 12 of that Schedule);
;
“Scottish devolved function” means a function exercisable in or as regards Scotland, the exercise of which would be within devolved competence (within the meaning of section 54 of the Scotland Act 1998);
;
“Welsh devolved function” means a function exercisable in or as regards Wales that could be conferred by provision falling within the legislative competence of Senedd Cymru (see section 108A of the Government of Wales Act 2006).
.
(4) After that subsection insert—
(2) Section 41(3) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)) applies in relation to the laying of a document before the Northern Ireland Assembly under this Part, as it applies in relation to the laying of a statutory document under an Act of the Northern Ireland Assembly.
29 (1) Schedule 1 is amended as follows.
(2) In paragraph 1—
(a) in sub-paragraph (1), after paragraph (a) insert—
(aa) a Northern Ireland member (who is to be a non-executive member),
;
(b) in sub-paragraph (2) after “Secretary of State” insert “, the Northern Ireland Department”;
(c) in sub-paragraph (3)—
(i) for “In making those appointments,” substitute “When exercising their functions of appointment”;
(ii) after “non-executive members” insert “(including the Northern Ireland member)”.
(3) In paragraph 2 for sub-paragraphs (1) and (2) substitute—
(1) The Chair is to be appointed by the Secretary of State acting jointly with the Northern Ireland Department, other than the first Chair who is to be appointed by the Secretary of State.
(2) The Northern Ireland member is to be appointed by the Northern Ireland Department after consulting the Secretary of State and the Chair.
(2A) The other non-executive members are to be appointed by the Secretary of State after consulting the Northern Ireland Department and the Chair.
(2B) The Northern Ireland Department must appoint as the Northern Ireland member a person with experience of—
(a) Northern Ireland environmental law (within the meaning of Part 1 of Schedule 3),
(b) environmental science in Northern Ireland, or
(c) environmental regulation in Northern Ireland.
(4) In paragraph 3(3) after “Secretary of State” insert “and the Northern Ireland Department”.
(5) In paragraph 5—
(a) in sub-paragraph (4) after “of non-executive members” insert “(including the Northern Ireland member)”;
(b) after that sub-paragraph insert—
(4A) The Northern Ireland Department must, in determining the length of a Northern Ireland member’s term, have regard to the desirability of securing that the appointments of non-executive members expire at different times.
;
(c) for sub-paragraph (6) substitute—
(6) A non-executive member ceases to be a member of the OEP upon becoming its employee.
(7) A non-executive member, other than the Northern Ireland member—
(a) may resign from office by giving notice to the Secretary of State, and
(b) may be removed from office by notice given by the Secretary of State, after consulting the Northern Ireland Department, on the grounds that the member—
(i) has without reasonable excuse failed to discharge the member’s functions, or
(ii) is, in the opinion of the Secretary of State, unable or unfit to carry out the member’s functions.
(8) The Northern Ireland member—
(a) may resign from office by giving notice to the Northern Ireland Department, and
(b) may be removed from office by notice given by the Northern Ireland Department after consulting the Secretary of State, on the grounds that the member—
(i) has without reasonable excuse failed to discharge the member’s functions, or
(ii) is, in the opinion of the Northern Ireland Department, unable or unfit to carry out the member’s functions.
(6) In paragraph 10(4)—
(a) in paragraph (b) after “section 28 or 29” insert “, or a report under paragraph 1 or 2 of Schedule 3 (functions of the OEP in Northern Ireland)”;
(b) in paragraph (c) after “section 30(1) or (3)” insert “, or written advice to a Northern Ireland department under paragraph 3(1) or (3) of Schedule 3”;
(c) in paragraph (d) after “information notice” insert “or a Northern Ireland information notice”;
(d) in paragraph (e) after “decision notice” insert “or a Northern Ireland decision notice”;
(e) after paragraph (g) insert—
(ga) deciding whether to make a review application (see paragraph 12 of Schedule 3) or an application for judicial review by virtue of paragraph 13(1) of that Schedule or to intervene in proceedings that relate to a judicial review (see paragraph 13 of that Schedule);
.
(7) In paragraph 12—
(a) in sub-paragraph (1)—
(i) after “Secretary of State”, in the first place it occurs, insert “and the Northern Ireland Department”;
(ii) after “must” insert “, between them,”;
(iii) for “the Secretary of State considers” substitute “they consider”;
(b) in sub-paragraph (2)—
(i) after “Secretary of State”, in the first place it occurs, insert “, or the Northern Ireland Department,”;
(ii) after “Secretary of State”, in the second place it occurs, insert “, or that department,”.
(8) In paragraph 13(2)(a) after “Parliament” insert “and the Northern Ireland Assembly”.
(9) In paragraph 14—
(a) in sub-paragraph (3) after “Secretary of State” insert “and the Northern Ireland Department”;
(b) in sub-paragraph (4) after “Secretary of State” insert “, the Northern Ireland Department”;
(c) in sub-paragraph (5)(b) after “Secretary of State” insert “, the Northern Ireland Department”;
(d) in sub-paragraph (6) after “Parliament” insert “and the Northern Ireland Assembly”.
(10) In paragraph 17 after “Secretary of State” insert “and the Northern Ireland Department”.
(11) After paragraph 23 insert—
Meaning of “the Northern Ireland Department”
24 In this Schedule “the Northern Ireland Department” means the Department of Agriculture, Environment and Rural Affairs in Northern Ireland.
30 (1) Schedule 2 (improving the natural environment: Northern Ireland) is amended as follows.
(2) In paragraph 3(4)(b) after “under paragraph 5” insert “and reports made by the OEP under paragraph 1 of Schedule 3”.
(3) In paragraph 4(4)(b) after “under paragraph 5” insert “and reports made by the OEP under paragraph 1 of Schedule 3”.
(4) In paragraph 11(1), at the appropriate place insert—
“OEP” has the meaning given by section 22;
.
Section 50
PART 1 Requirements
General power
1 (1) The relevant national authority may by regulations make provision for imposing producer responsibility obligations on specified persons in respect of specified products or materials.
(2) The regulations may be made only for the purpose of—
(a) preventing a product or material becoming waste, or reducing the amount of a product or material that becomes waste;
(b) sustaining a minimum level of, or promoting or securing an increase in, the re-use, redistribution, recovery or recycling of products or materials.
(3) In this Schedule “producer responsibility obligations” means steps required to be taken, in respect of products or materials, for a purpose in sub-paragraph (2).
Examples of provision that may be made
2 (1) The regulations may make provision about—
(a) the persons to whom producer responsibility obligations apply;
(b) the products or materials in relation to which producer responsibility obligations apply;
(c) the obligations imposed by the regulations.
(2) The regulations may make provision about targets to be achieved in relation to the proportion of products or materials (by weight, volume or otherwise) to be re-used, redistributed, recovered or recycled (either generally or in a specified way).
(3) The regulations may make provision about circumstances in which a producer responsibility obligation is to be treated as met (in whole or in part) by payment of a sum of money, including provision about—
(a) the manner in which and persons by whom the amount of such sums is to be determined, and
(b) the persons to whom such sums are to be paid.
Registration of persons subject to producer responsibility obligations
3 (1) The regulations may make provision requiring the registration of persons who are subject to a producer responsibility obligation.
(2) The regulations may make provision about—
(a) applications for registration,
(b) the imposition and variation of requirements in connection with registration,
(c) the period for which registration is to remain in force, and
(d) the cancellation of registration.
(3) The regulations may require registers to be published or made available for inspection.
Compliance schemes
4 (1) The regulations may make provision authorising or requiring persons who are subject to a producer responsibility obligation to become members of a compliance scheme.
(2) The regulations may make provision about—
(a) the approval, or withdrawal of approval, of compliance schemes by the relevant national authority,
(b) the establishment, maintenance or management of a compliance scheme by a person appointed by the relevant national authority.
(3) In this Schedule “compliance scheme” means a scheme under which producer responsibility obligations of members of the scheme are discharged by the scheme operator on their behalf.
Registration of compliance schemes
5 (1) The regulations may make provision about the registration of compliance schemes, including provision about—
(a) requirements and criteria to be met before a compliance scheme may be registered,
(b) applications for registration,
(c) the imposition and variation of conditions in connection with registration,
(d) the period for which registration is to remain in force,
(e) the cancellation of registration.
(2) The regulations may make provision about—
(a) appeals against the refusal of registration, the imposition of conditions in connection with registration, or the cancellation of registration,
(b) the procedure on the appeals.
(3) The regulations may make provision about the position of persons and compliance schemes pending determination or withdrawal of an appeal, including provision about cases in which—
(a) a compliance scheme is, or is not, to be treated as registered, or
(b) a person is, or is not, to be treated as a member of a registered compliance scheme.
(4) The regulations may require registers to be published or made available for inspection.
Power to direct compliance scheme operators
6 (1) If it appears to the relevant national authority that any action proposed to be taken by the operator of a compliance scheme would be incompatible with an international agreement to which the United Kingdom is a party, it may direct the operator not to take the action in question.
(2) If it appears to the relevant national authority that any action which the operator of a compliance scheme has power to take is required for the purpose of implementing an international agreement to which the United Kingdom is a party, it may direct the operator to take the action in question.
(3) A direction under this paragraph—
(a) may include consequential, supplementary, incidental, transitional or saving provision;
(b) on the application of the relevant national authority, is enforceable—
(i) by injunction, or
(ii) in Scotland, by interdict or by an order for specific performance under section 45 of the Court of Session Act 1988.
Certificates of compliance
7 (1) The regulations may make provision about certificates of compliance.
(2) The regulations may make provision—
(a) requiring persons who are not members of compliance schemes to provide certificates of compliance to an enforcement authority;
(b) about the approval of persons by an enforcement authority for the purposes of issuing certificates of compliance.
(3) In this Schedule “certificate of compliance” means a certificate which—
(a) is issued by a person approved by an enforcement authority, and
(b) states that the person issuing the certificate is satisfied that the person to whom it relates is complying with their producer responsibility obligations.
(4) The regulations may include provision requiring an enforcement authority to give guidance to persons issuing certificates of compliance, including guidance as to matters which are, or are not, to be treated as evidence of compliance or non-compliance.
(5) In this paragraph “enforcement authority” means a person on whom functions are conferred by regulations under Part 2 of this Schedule.
Consultation etc requirements
8 (1) Before making regulations under this Part of this Schedule the relevant national authority must consult persons appearing to it to represent the interests of those likely to be affected.
(2) The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
9 (1) Before making regulations under this Part of this Schedule the relevant national authority must be satisfied that—
(a) making the regulations would be likely to achieve one or more of the purposes in paragraph 1(2);
(b) making the regulations would produce environmental or economic benefits;
(c) those benefits are significant as against the likely costs resulting from the imposition of the producer responsibility obligations;
(d) the burdens imposed on businesses by the regulations are the minimum necessary to secure those benefits;
(e) those burdens are imposed on the persons most able to make a contribution to securing those benefits—
(i) having regard to the desirability of acting fairly between persons who manufacture, process, distribute or supply products or materials, and
(ii) taking account of the need to ensure that the proposed producer responsibility obligation is so framed as to be effective in achieving the purposes for which it is imposed.
(2) Nothing in sub-paragraph (1)(e)(i) prevents regulations imposing a producer responsibility obligation on any class or description of person to the exclusion of any others.
(3) Sub-paragraph (1) does not apply to regulations for the implementation of an international agreement to which the United Kingdom is a party.
10 The relevant national authority must exercise the power to make regulations under this Part in the way it considers best calculated to secure that—
(a) the regulations do not have the effect of restricting, distorting or preventing competition, or
(b) if the regulations are likely to have that effect, the effect is no greater than is necessary for achieving the environmental or economic benefits mentioned in paragraph 9(1).
Interpretation
11 (1) In this Part of this Schedule—
“operator”, in relation to a compliance scheme, includes any person responsible for establishing, maintaining or managing the scheme;
“product” and “material” include a product or material at a time when it becomes, or has become, waste;
“recovery”, in relation to products or materials, includes—
composting them, or any other transformation of them by biological processes, or
obtaining energy from them by any means;
“specified” means specified in, or determined in accordance with, the regulations.
(2) The regulations may specify, in relation to products or materials, activities, or the activities, which are to be treated for the purposes of this Part of this Schedule and the regulations as re-use, redistribution, recovery or recycling.
PART 2 Enforcement
General power
12 The relevant national authority may by regulations (“Part 2 regulations”) make provision about the enforcement of requirements imposed by regulations (“Part 1 regulations”) made by the authority under Part 1 of this Schedule.
Powers to confer functions
13 (1) Part 2 regulations may include provision conferring functions on one or more persons specified in the regulations (each of whom is an “enforcement authority” for the purposes of this Part).
(2) Part 2 regulations may include provision—
(a) conferring functions involving the exercise of discretion;
(b) for the functions of an enforcement authority to be exercised on its behalf by persons authorised in accordance with the regulations.
(3) Part 2 regulations may include provision requiring an enforcement authority to issue guidance about the exercise of its functions.
Monitoring compliance
14 Part 2 regulations may include provision conferring on an enforcement authority the function of monitoring compliance with requirements imposed by Part 1 regulations.
Records and information
15 Part 2 regulations may include provision—
(a) requiring persons on whom requirements are imposed by Part 1 regulations to keep records;
(b) requiring persons on whom requirements are imposed by Part 1 regulations to provide records or other information to an enforcement authority;
(c) requiring an enforcement authority to make reports or provide information to the relevant national authority.
Powers of entry etc
16 (1) Part 2 regulations may include provision conferring on an enforcement authority powers of entry, inspection, examination, search and seizure.
(2) Part 2 regulations may include provision—
(a) for powers to be exercisable only under the authority of a warrant issued by a justice of the peace, sheriff, summary sheriff or lay magistrate;
(b) about applications for, and the execution of, warrants.
(3) Part 2 regulations must secure that the authority of a warrant is required for the exercise of any powers conferred by the regulations to—
(a) enter premises by force;
(b) enter a private dwelling without the consent of the occupier;
(c) search and seize material.
Sanctions
17 (1) Part 2 regulations may include provision—
(a) for, about or connected with the imposition of civil sanctions in respect of—
(i) failures to comply with Part 1 regulations or Part 2 regulations, or
(ii) the obstruction of or failure to assist an enforcement authority;
(b) for appeals against such sanctions.
(2) Part 2 regulations may include provision—
(a) creating criminal offences punishable with a fine in respect of—
(i) failures to comply with Part 1 regulations or Part 2 regulations,
(ii) failures to comply with civil sanctions imposed under Part 2 regulations, or
(iii) the obstruction of or failure to assist an enforcement authority;
(b) about such offences.
(3) In this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
18 Part 2 regulations may include provision for the imposition of sanctions of that kind whether or not—
(a) the conduct in respect of which the sanction is imposed constitutes an offence,
(b) the enforcement authority is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008, or
(c) the relevant national authority may make provision for the imposition of sanctions under that Part.
Charges and costs
19 Part 2 regulations may include provision—
(a) requiring persons on whom requirements are imposed by Part 1 regulations to pay charges, as a means of recovering costs incurred by an enforcement authority in performing its functions;
(b) authorising a court or tribunal dealing with any matter under Part 1 regulations or Part 2 regulations to award to an enforcement authority costs incurred by it in performing its functions under the regulations in relation to that matter.
Consultation requirement
20 (1) Before making Part 2 regulations the relevant national authority must consult any persons the authority considers appropriate.
(2) The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
SCHEDULE 5 Producer responsibility for disposal costs
Section 51
PART 1 Requirements
General power
1 (1) The relevant national authority may by regulations make provision requiring the payment of sums by specified persons, in respect of specified products or materials.
(2) The regulations may be made only for the purpose of securing that those involved in manufacturing, processing, distributing or supplying products or materials meet, or contribute to, the disposal costs of the products or materials.
“Disposal costs” and “disposal”
2 (1) In this Schedule the “disposal costs” of products or materials means such costs incurred in connection with the disposal of the products or materials as may be specified in the regulations.
(2) In this Schedule the “disposal” of products or materials includes their re-use, redistribution, recovery or recycling.
(3) Disposal costs may include the costs of—
(a) collecting and transporting products or materials for disposal,
(b) sorting and treating products or materials,
(c) other steps preparatory to disposal of products or materials, and
(d) providing public information about the disposal of products or materials.
(4) They may include costs incurred in relation to products or materials that have been disposed of unlawfully.
(5) The regulations may make provision as to how the disposal costs of products or materials are to be calculated.
Calculation of sums payable
3 (1) The regulations may make provision as to how the sums payable under the regulations are to be calculated.
(2) They may include provision for the sums payable under the regulations to vary according to the design or composition of the products or materials to which the regulations relate, the methods by which they were produced or any other factor.
Administration
4 (1) The regulations may appoint, or make provision for the appointment of, a person (an “administrator”) to administer provision made by the regulations.
(2) More than one person may be appointed as an administrator.
(3) The regulations may confer functions on an administrator (including functions involving the exercise of discretion).
(4) References in this Schedule to an administrator include a person appointed by an administrator or exercising functions on an administrator’s behalf.
Registration
5 (1) The regulations may require—
(a) persons required to pay sums under the regulations to register with an administrator;
(b) administrators to register with an enforcement authority appointed by regulations under Part 2 of this Schedule.
(2) The regulations may make provision—
(a) about applications for registration;
(b) about the period for which registration has effect;
(c) about the cancellation of registration.
(3) The regulations may require persons required to register to pay, in connection with their registration, fees of an amount determined by or in accordance with the regulations.
(4) The regulations may require registers to be published or made available for inspection.
Payment of sums
6 (1) The regulations may make provision for the sums payable under the regulations to be payable to an administrator.
(2) The regulations may make provision as to how sums paid to the administrator are to be held by the administrator.
Distribution of sums paid
7 The regulations may make provision for sums paid to an administrator—
(a) to be distributed by the administrator, in accordance with the regulations, among persons who have incurred disposal costs in relation to products or materials to which the regulations relate, or
(b) to be paid to another administrator to be so distributed by that administrator.
Repayment of sums paid
8 (1) The regulations may make provision for sums paid to an administrator to be repayable, in whole or in part, to the persons by whom they were payable (“liable persons”).
(2) The regulations may make provision as to how sums repayable under the regulations are to be calculated.
(3) They may include provision for the sums repayable under the regulations to vary according to the extent to which, or manner in which, liable persons dispose of products or materials to which the regulations relate, or meet or contribute to their disposal costs.
Charges
9 The regulations may include provision requiring the payment of charges to administrators, as a means of recovering costs incurred by administrators in performing functions under the regulations.
Consultation requirements
10 (1) Before making regulations under this Part of this Schedule the relevant national authority must consult persons appearing to it to represent the interests of those likely to be affected.
(2) The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
PART 2 Enforcement
General power
11 The relevant national authority may by regulations (“Part 2 regulations”) make provision about the enforcement of requirements imposed by regulations (“Part 1 regulations”) made by the authority under Part 1 of this Schedule.
Powers to confer functions
12 (1) Part 2 regulations may include provision conferring functions on one or more persons specified in the regulations (each of whom is an “enforcement authority” for the purposes of this Part).
(2) Part 2 regulations may include provision—
(a) conferring functions involving the exercise of discretion;
(b) for the functions of an enforcement authority to be exercised on its behalf by persons authorised in accordance with the regulations.
(3) Part 2 regulations may include provision requiring an enforcement authority to issue guidance about the exercise of its functions.
Monitoring compliance
13 Part 2 regulations may include provision conferring on an enforcement authority the function of monitoring compliance with requirements imposed by Part 1 regulations.
Records and information
14 Part 2 regulations may include provision—
(a) requiring persons on whom requirements are imposed by Part 1 regulations to keep records;
(b) requiring persons on whom requirements are imposed by Part 1 regulations to provide records or other information to an enforcement authority or (where the person is not an administrator) an administrator;
(c) requiring an enforcement authority to make reports or provide information to the relevant national authority.
Powers of entry etc
15 (1) Part 2 regulations may include provision conferring on an enforcement authority powers of entry, inspection, examination, search and seizure.
(2) Part 2 regulations may include provision—
(a) for powers to be exercisable only under the authority of a warrant issued by a justice of the peace, sheriff, summary sheriff or lay magistrate;
(b) about applications for, and the execution of, warrants.
(3) Part 2 regulations must secure that the authority of a warrant is required for the exercise of any powers conferred by the regulations to—
(a) enter premises by force;
(b) enter a private dwelling without the consent of the occupier;
(c) search and seize material.
Sanctions
16 (1) Part 2 regulations may include provision—
(a) for, about or connected with the imposition of civil sanctions in respect of—
(i) failures to comply with Part 1 regulations or Part 2 regulations, or
(ii) the obstruction of or failure to assist an enforcement authority;
(b) for appeals against such sanctions.
(2) Part 2 regulations may include provision—
(a) creating criminal offences punishable with a fine in respect of—
(i) failures to comply with civil sanctions imposed under Part 2 regulations, or
(ii) the obstruction of or failure to assist an enforcement authority;
(b) about such offences.
(3) In this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
(4) Part 2 regulations may include provision for the imposition of sanctions of that kind whether or not—
(a) the conduct in respect of which the sanction is imposed constitutes an offence,
(b) the enforcement authority is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008, or
(c) the relevant national authority may make provision for the imposition of sanctions under that Part.
Charges and costs
17 Part 2 regulations may include provision—
(a) requiring persons on whom requirements are imposed by Part 1 regulations to pay charges, as a means of recovering costs incurred by an enforcement authority in performing its functions;
(b) authorising a court or tribunal dealing with any matter under Part 1 regulations or Part 2 regulations to award to an enforcement authority costs incurred by it in performing its functions in relation to that matter.
Consultation requirements
18 (1) Before making regulations under this Part of this Schedule the relevant national authority must consult any persons the authority considers appropriate.
(2) The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
Section 52
PART 1 Requirements
General power
1 (1) The relevant national authority may by regulations make provision for the purposes of requiring specified persons, in specified circumstances, to provide specified information about the resource efficiency of specified products.
(2) The regulations may not make such provision in relation to a product which is—
(a) a medicinal product, within the meaning of the Human Medicines Regulations 2012 (S.I. 2012/1916);
(b) a veterinary medicinal product, within the meaning of the Veterinary Medicines Regulations 2013 (S.I. 2013/2033);
(c) food, within the meaning of article 2 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety.
(3) Sub-paragraph (2) does not prevent the regulations making provision in relation to a product which is not within that sub-paragraph, but is packaging for a product which is within that sub-paragraph.
Meaning of “information about resource efficiency”
2 (1) Information about resource efficiency, in relation to a product, means information which—
(a) is within sub-paragraph (2) or (3), and
(b) is relevant to the product’s impact on the natural environment.
(2) The information within this sub-paragraph is information about—
(a) the expected life of the product;
(b) aspects of the product’s design which affect its expected life;
(c) the availability or cost of component parts, tools, or anything else required to repair or maintain the product;
(d) whether the product can be upgraded, and the availability or cost of upgrades;
(e) any other matter relevant to repairing, maintaining, remanufacturing or otherwise prolonging the expected life of, the product;
(f) the ways in which the product can be disposed of at the end of its life (including whether and to what extent it can be recycled, and whether materials used in it can be extracted and reused or recycled).
(3) The information within this sub-paragraph is information about—
(a) the materials from which the product is manufactured;
(b) the techniques used in its manufacture;
(c) the resources consumed during its production or use;
(d) the pollutants (including greenhouse gases within the meaning of section 92 of the Climate Change Act 2008) released or emitted at any stage of the product’s production, use or disposal.
Persons on whom requirements may be imposed
3 The regulations may impose requirements to provide information in relation to a product on a person only if the person is a person connected with the manufacture, import, distribution, sale or supply of the product.
Examples of provision that may be made
4 The regulations may include provision—
(a) about how information about a product is to be provided (for example, by affixing a label to the product);
(b) conferring on specified persons the function of determining whether specified products or materials have specified properties or characteristics (for example, whether they can be recycled) and publishing the results of such determinations;
(c) specifying a scheme for classifying products by reference to matters about which resource efficiency information must be provided;
(d) requiring information provided about a product to be determined according to specified criteria (for example, according to results published by virtue of paragraph (b) or classification schemes under paragraph (c)).
Consultation etc requirements
5 (1) Before making regulations under this Part of this Schedule the relevant national authority must—
(a) consult any persons the authority considers appropriate, and
(b) have regard to the matters in sub-paragraph (2).
(2) The matters are—
(a) the extent to which the proposed regulations are likely to reduce the product’s impact on the natural environment at any stage of its production, use or disposal;
(b) the environmental, social, economic or other costs of complying with the regulations;
(c) whether exemptions should be given, or other special provision made, for smaller businesses.
(3) The requirement in sub-paragraph (1)(a) may be met by consultation carried out before this paragraph comes into force.
Interpretation
6 In this Part of this Schedule—
“natural environment” has the same meaning as in Part 1 of this Act (see section 44);
“product” includes a product which is a component part of, or packaging for, another product;
“specified” means specified in, or determined in accordance with, the regulations.
PART 2 Enforcement
General power
7 The relevant national authority may by regulations (“Part 2 regulations”) make provision about the enforcement of requirements imposed by regulations (“Part 1 regulations”) made by the authority under Part 1 of this Schedule.
Powers to confer functions
8 (1) Part 2 regulations may include provision conferring functions on one or more persons specified in the regulations (each of whom is an “enforcement authority” for the purposes of this Part).
(2) Part 2 regulations may include provision—
(a) conferring functions involving the exercise of discretion;
(b) for the functions of an enforcement authority to be exercised on its behalf by persons authorised in accordance with the regulations.
(3) Part 2 regulations may include provision requiring an enforcement authority to issue guidance about the exercise of its functions.
Monitoring compliance
9 Part 2 regulations may include provision conferring on an enforcement authority the function of monitoring compliance with requirements imposed by Part 1 regulations (which may include the function of testing or assessing products).
Records and information
10 Part 2 regulations may include provision—
(a) requiring persons on whom requirements are imposed by Part 1 regulations to keep records;
(b) requiring persons on whom requirements are imposed by Part 1 regulations to provide records or other information to an enforcement authority;
(c) requiring an enforcement authority to make reports or provide information to the relevant national authority.
Powers of entry etc
11 (1) Part 2 regulations may include provision conferring on an enforcement authority powers of entry, inspection, examination, search and seizure.
(2) Part 2 regulations may include provision—
(a) for powers to be exercisable only under the authority of a warrant issued by a justice of the peace, sheriff, summary sheriff or lay magistrate;
(b) about applications for, and the execution of, warrants.
(3) Part 2 regulations must secure that the authority of a warrant is required for the exercise of any powers conferred by the regulations to—
(a) enter premises by force;
(b) enter a private dwelling without the consent of the occupier;
(c) search and seize material.
Sanctions
12 (1) Part 2 regulations may include provision—
(a) for, about or connected with the imposition of civil sanctions in respect of—
(i) failures to comply with Part 1 regulations or Part 2 regulations, or
(ii) the obstruction of or failure to assist an enforcement authority;
(b) for appeals against such sanctions.
(2) Part 2 regulations may include provision—
(a) creating criminal offences punishable with a fine in respect of—
(i) failures to comply with civil sanctions imposed under Part 2 regulations, or
(ii) the obstruction of or failure to assist an enforcement authority;
(b) about such offences.
(3) In this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
(4) Part 2 regulations may include provision for the imposition of sanctions of that kind whether or not—
(a) the conduct in respect of which the sanction is imposed constitutes an offence,
(b) the enforcement authority is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008, or
(c) the relevant national authority may make provision for the imposition of sanctions under that Part.
Costs
13 Part 2 regulations may include provision—
(a) requiring persons on whom requirements are imposed by Part 1 regulations to pay costs incurred by an enforcement authority in performing its functions;
(b) authorising a court or tribunal dealing with any matter under Part 1 regulations or Part 2 regulations to award to an enforcement authority costs incurred by it in performing its functions in relation to that matter.
Consultation requirement
14 (1) Before making Part 2 regulations the relevant national authority must consult any persons the authority considers appropriate.
(2) The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
Section 53
PART 1 Requirements
General power
1 (1) The relevant national authority may by regulations make provision for the purposes of requiring specified products, in specified circumstances, to meet specified resource efficiency requirements.
(2) The regulations may not make such provision in relation to a product which is—
(a) an energy-related product, within the meaning of the Ecodesign for Energy-Related Products Regulations 2010 (S.I. 2010/2617);
(b) a medicinal product, within the meaning of the Human Medicines Regulations 2012 (S.I. 2012/1916);
(c) a veterinary medicinal product, within the meaning of the Veterinary Medicines Regulations 2013 (S.I. 2013/2033);
(d) food, within the meaning of article 2 of Regulation (EC) No. 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety.
(3) Sub-paragraph (2) does not prevent the regulations making provision in relation to a product which is not within that sub-paragraph, but is packaging for a product which is within that sub-paragraph.
Meaning of “resource efficiency requirements”
2 (1) “Resource efficiency requirements”, in relation to a product, means requirements which—
(a) are within sub-paragraph (2) or (3), and
(b) are relevant to the product’s impact on the natural environment.
(2) The requirements within this sub-paragraph are requirements relating to—
(a) aspects of the product’s design which affect its expected life;
(b) the availability or cost of component parts, tools, or anything else required to repair or maintain the product;
(c) whether the product can be upgraded, and the availability or cost of upgrades;
(d) any other matter relevant to repairing, maintaining, remanufacturing or otherwise prolonging the expected life of, the product;
(e) the ways in which the product can be disposed of at the end of its life (including whether and to what extent it can be recycled, and whether materials used in it can be extracted and reused or recycled).
(3) The requirements within this sub-paragraph are requirements relating to—
(a) the materials from which the product is manufactured;
(b) the techniques used in its manufacture;
(c) the resources consumed during its production or use;
(d) the pollutants (including greenhouse gases within the meaning of section 92 of the Climate Change Act 2008) released or emitted at any stage of the product’s production, use or disposal.
(4) Resource efficiency requirements may be specified by reference to standards prepared by a specified person.
Persons on whom requirements may be imposed
3 The regulations may impose resource efficiency requirements on a person only if the person is connected with the manufacture, import, distribution, sale or supply of the product.
Examples of provision that may be made
4 (1) The regulations may include provision—
(a) prohibiting a product being distributed, sold or supplied unless it meets resource efficiency requirements;
(b) requiring persons connected with the manufacture, import, distribution, sale or supply of a product to provide information to other such persons.
(2) The regulations may include provision—
(a) about how and by whom a product’s compliance with resource efficiency requirements is to be determined;
(b) for appeals against such determinations;
(c) about how a product’s compliance with resource efficiency requirements is to be evidenced (for example, by affixing a label or applying a marking to a product).
Consultation etc requirements
5 (1) Before making regulations under this Part of this Schedule the relevant national authority must—
(a) consult such persons as the authority considers appropriate, and
(b) where sub-paragraph (3) or (4) applies, publish for the purposes of the consultation—
(i) the authority’s assessment of the matters it must be satisfied of, and
(ii) a draft of the regulations.
(2) The requirements in sub-paragraph (1) may be met by consultation carried out, and assessments and draft regulations published, before this paragraph comes into force.
(3) Before making regulations under this Part of this Schedule in relation to a new product, the relevant national authority must be satisfied that—
(a) the product has a significant impact on the natural environment at any stage of its production, use or disposal,
(b) the proposed regulations would be likely to reduce the product’s impact on the natural environment,
(c) the benefit of that would be significant as against the likely environmental, social, economic or other costs of the proposed regulations, and
(d) a reduction in the product’s impact on the natural environment could not be achieved as effectively without making the regulations.
(4) Before making regulations under this Part of this Schedule which—
(a) specify additional resource efficiency requirements in relation to a product, or
(b) specify additional persons who must meet resource efficiency requirements in relation to a product,
the relevant national authority must be satisfied of the matters in sub-paragraph (3)(b) to (d).
(5) A “new product” means a product in relation to which there are no existing regulations made by the relevant national authority under this Part of this Schedule.
(6) Before making regulations under this Part of this Schedule the relevant national authority must consider whether exemptions should be given, or other special provision made, for smaller businesses.
Interpretation
6 In this Part of this Schedule—
“natural environment” has the same meaning as in Part 1 of this Act (see section 44);
“product” includes a product which is a component part of, or packaging for, another product;
“specified” means specified in, or determined in accordance with, the regulations.
PART 2 Enforcement
General power
7 The relevant national authority may by regulations (“Part 2 regulations”) make provision about the enforcement of requirements imposed by regulations (“Part 1 regulations”) made by the authority under Part 1 of this Schedule.
Powers to confer functions
8 (1) Part 2 regulations may include provision conferring functions on one or more persons specified in the regulations (each of whom is an “enforcement authority” for the purposes of this Part).
(2) Part 2 regulations may include provision—
(a) conferring functions involving the exercise of discretion;
(b) for the functions of an enforcement authority to be exercised on its behalf by persons authorised in accordance with the regulations.
(3) Part 2 regulations may include provision requiring an enforcement authority to issue guidance about the exercise of its functions.
Monitoring compliance
9 Part 2 regulations may include provision conferring on an enforcement authority the function of monitoring compliance with requirements imposed by Part 1 regulations (which may include the function of testing or assessing products).
Records and information
10 Part 2 regulations may include provision—
(a) requiring persons on whom requirements are imposed by Part 1 regulations to keep records;
(b) requiring persons on whom requirements are imposed by Part 1 regulations to provide records or other information to an enforcement authority;
(c) requiring an enforcement authority to make reports or provide information to the relevant national authority.
Powers of entry etc
11 (1) Part 2 regulations may include provision conferring on an enforcement authority powers of entry, inspection, examination, search and seizure.
(2) Part 2 regulations may include provision—
(a) for powers to be exercisable only under the authority of a warrant issued by a justice of the peace, sheriff, summary sheriff or lay magistrate;
(b) about applications for, and the execution of, warrants.
(3) Part 2 regulations must secure that the authority of a warrant is required for the exercise of any powers conferred by the regulations to—
(a) enter premises by force;
(b) enter a private dwelling without the consent of the occupier;
(c) search and seize material.
Sanctions
12 (1) Part 2 regulations may include provision—
(a) for, about or connected with the imposition of civil sanctions in respect of—
(i) failures to comply with Part 1 regulations or Part 2 regulations, or
(ii) the obstruction of or failure to assist an enforcement authority;
(b) for appeals against such sanctions.
(2) Part 2 regulations may include provision—
(a) creating criminal offences punishable with a fine in respect of—
(i) failures to comply with civil sanctions imposed under Part 2 regulations, or
(ii) the obstruction of or failure to assist an enforcement authority;
(b) about such offences.
(3) In this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
(4) Part 2 regulations may include provision for the imposition of sanctions of that kind whether or not—
(a) the conduct in respect of which the sanction is imposed constitutes an offence,
(b) the enforcement authority is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008, or
(c) the relevant national authority may make provision for the imposition of sanctions under that Part.
Costs
13 Part 2 regulations may include provision—
(a) requiring persons on whom requirements are imposed by Part 1 regulations to pay costs incurred by an enforcement authority in performing its functions;
(b) authorising a court or tribunal dealing with any matter under Part 1 regulations or Part 2 regulations to award to an enforcement authority costs incurred by it in performing its functions under the regulations in relation to that matter.
Consultation requirement
14 (1) Before making Part 2 regulations the relevant national authority must consult any persons the authority considers appropriate.
(2) The requirement in sub-paragraph (1) may be met by consultation carried out before this paragraph comes into force.
Section 54
Power to establish deposit schemes
1 (1) The relevant national authority may by regulations establish deposit schemes for any of the following purposes—
(a) sustaining, promoting or securing an increase in the recycling or reuse of materials;
(b) reducing the incidence of littering or fly-tipping.
(2) A deposit scheme is a scheme under which—
(a) a person supplied with a deposit item by a scheme supplier pays the supplier an amount (a “deposit”), and
(b) a person who provides a deposit item to a scheme collector is entitled to be paid an amount (a “refund”) in respect of that item by the collector.
(3) A “deposit item” is a specified item that is supplied—
(a) by way of sale, or
(b) in connection with the supply of goods or services.
(4) A deposit scheme may make provision about the circumstances in which a deposit or refund is to be paid in respect of a deposit item.
(5) A person may be specified—
(a) as a scheme supplier if the person is a supplier or producer of deposit items;
(b) as a scheme collector if the person is a supplier or producer of deposit items or is a scheme administrator (see paragraph 4).
(6) A deposit scheme may provide that the amount of the deposit or refund in respect of a deposit item is—
(a) an amount specified,
(b) an amount determined and published by the relevant national authority in accordance with the scheme, or
(c) an amount determined by a scheme administrator in accordance with the scheme.
(7) In this paragraph “specified” means specified or described in a deposit scheme.
Scheme suppliers
2 (1) A deposit scheme may impose requirements on a scheme supplier in connection with the scheme, including requirements—
(a) to take steps to ensure deposits are paid in respect of deposit items in accordance with the scheme (which may include a requirement to include the amount of the deposit in the sale price of the item, or in the price of goods or services the item was supplied in connection with);
(b) as to the marking of deposit items to identify them as such;
(c) as to the retention of deposits;
(d) to pay amounts received as deposits to other scheme suppliers, scheme collectors or to a scheme administrator;
(e) in connection with securing that a specified proportion of deposit items supplied by scheme suppliers, or by individual scheme suppliers, are returned to scheme collectors;
(f) to keep records in connection with the scheme;
(g) to provide those records or other information in connection with the scheme to a scheme administrator.
(2) A deposit scheme may impose different requirements on different scheme suppliers.
(3) In this paragraph “specified” means specified in a deposit scheme.
Scheme collectors
3 (1) A deposit scheme may impose requirements on a scheme collector in connection with the scheme, including requirements—
(a) to pay a person who provides a deposit item a refund in accordance with the scheme;
(b) to pay a person who provides a deposit item under another deposit scheme an amount determined in accordance with the scheme (and the scheme may provide for that amount to be determined by reference to the other deposit scheme);
(c) to pay a person who provides articles or packaging that are the subject of a Scottish deposit and return scheme an amount determined in accordance with the scheme (and the scheme may provide for that amount to be determined by reference to the Scottish deposit and return scheme);
(d) to recycle, re-use, or arrange or facilitate the recycling or re-use of any item provided to them in accordance with the scheme (which may include articles or packaging that are the subject of a Scottish deposit and return scheme);
(e) to otherwise dispose of such items in accordance with the scheme;
(f) where a scheme collector receives any payment in connection with the recycling or disposal of such an item, to retain that amount or to pay it, or a part of it, to a scheme administrator;
(g) as to the retention of any amounts received from scheme suppliers, other scheme collectors or a scheme administrator;
(h) to pay such amounts received to scheme suppliers, other scheme collectors or a scheme administrator;
(i) in connection with securing that a specified proportion of deposit items supplied by scheme suppliers, or by individual scheme suppliers, are returned to scheme collectors;
(j) to keep records in connection with the scheme;
(k) to provide those records or other information in connection with the scheme to a scheme administrator.
(2) A deposit scheme may impose different requirements on different scheme collectors.
(3) In this paragraph “specified” means specified in a deposit scheme.
Deposit scheme administrators
4 (1) A person may be appointed as a scheme administrator of a deposit scheme by, or in accordance with, that scheme.
(2) A deposit scheme may confer functions (including functions involving the exercise of discretion) on a scheme administrator, including—
(a) any requirement that could be imposed on a scheme collector by virtue of paragraph 3(1)(a) to (e);
(b) functions relating to the registration of scheme suppliers and scheme collectors;
(c) a power to charge fees for registration (the amounts of which may be such as to recover the costs referred to in paragraphs (d) and (e));
(d) a power to use such fees to meet the costs of exercising its functions under, or in connection with, the scheme;
(e) requirements to pay such fees to persons exercising functions conferred by virtue of paragraph 5 for the purpose of meeting the costs of the exercise of those functions;
(f) a power to give general or specific directions to scheme suppliers and scheme collectors as to the matters mentioned in paragraphs 2(1) and 3(1);
(g) a power to make payments to scheme collectors to reimburse them in respect of the payment of refunds or payments made by virtue of a requirement under paragraph 3(1)(a), (b) or (c);
(h) a power to make payments to another scheme administrator of the deposit scheme;
(i) a power to make payments to a scheme administrator of another deposit scheme in connection with the operation of the scheme, or the operation of the other scheme;
(j) a power to make payments to a Scottish deposit administrator in connection with the operation of the scheme, or the operation of the Scottish deposit and return scheme in relation to which the Scottish deposit administrator is exercising functions;
(k) requirements to retain amounts received by it under or by virtue of the scheme;
(l) a power to use such amounts, or to pay such amounts to another person, for purposes connected with the scheme, or other deposit schemes;
(m) a power to use such amounts for purposes connected with the protection of the environment;
(n) requirements to pay such amounts to the relevant national authority;
(o) functions relating to securing compliance by scheme suppliers and scheme collectors with their obligations under the scheme;
(p) requirements in connection with securing that a specified proportion of deposit items supplied by scheme suppliers, or by individual scheme suppliers, are returned to scheme collectors;
(q) requirements to keep records in connection with the scheme;
(r) requirements to provide any such records or other information in connection with the scheme to the relevant national authority;
(s) requirements as to the exercise of the administrator’s functions.
(3) Where there is more than one scheme administrator, a deposit scheme may confer different functions on different scheme administrators.
(4) A deposit scheme may confer a power on the relevant national authority to give directions to a scheme administrator of the scheme as to the exercise of the administrator’s functions under the scheme.
(5) In this paragraph “specified” means specified in a deposit scheme.
Enforcement
5 (1) The relevant national authority may by regulations make provision about the enforcement of requirements under deposit schemes.
(2) The provision that may be made under sub-paragraph (1) includes provision—
(a) conferring functions (including functions involving the exercise of discretion) in connection with the enforcement of requirements under deposit schemes on specified persons (which may include scheme administrators);
(b) for such functions of such a person to be exercised on the person’s behalf by persons authorised in accordance with the regulations;
(c) requiring scheme suppliers, scheme collectors or scheme administrators to provide records and other information relating to deposit schemes to specified persons;
(d) for, about or connected with the imposition of civil sanctions in respect of failures to comply with relevant requirements, or the obstruction of or failure to assist a person having functions in connection with the enforcement of relevant requirements;
(e) for appeals against such sanctions;
(f) creating criminal offences punishable with a fine in respect of failures to comply with civil sanctions, or the obstruction of or failure to assist a person having functions in connection with the enforcement of relevant requirements;
(g) about such offences.
(3) For the purposes of this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
(4) Regulations under sub-paragraph (1) may include provision for the imposition of sanctions of that kind whether or not—
(a) the conduct in respect of which the sanction is imposed constitutes an offence,
(b) the person imposing them is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008, or
(c) the relevant national authority may make provision for the imposition of sanctions under that Part.
(5) In this paragraph—
“relevant requirement” means any requirement imposed by or under a deposit scheme or regulations under sub-paragraph (1);
“specified” means specified in, or determined in accordance with, regulations under sub-paragraph (1).
Interpretation
6 In this Schedule—
“deposit” has the meaning it has in paragraph 1(2)(a);
“deposit item” has the meaning it has in paragraph 1(3);
“deposit scheme” has the meaning it has in paragraph 1(2);
“refund” has the meaning it has in paragraph 1(2)(b);
“scheme administrator”, in relation to a deposit scheme, means a person appointed as a scheme administrator of the scheme;
“scheme supplier” or “scheme collector” means a person specified as such (see paragraph 1(5));
“Scottish deposit administrator” means a person exercising the functions of a scheme administrator in relation to a Scottish deposit and return scheme;
“Scottish deposit and return scheme” means a deposit and return scheme under section 84 of the Climate Change (Scotland) Act 2009 (asp 12).
Section 55
General power
1 (1) The relevant national authority may by regulations make provision about charging by sellers of goods or services for items specified in the regulations.
(2) Regulations made by the Secretary of State or the Welsh Ministers may specify only items which—
(a) are single use items, and
(b) are supplied in connection with goods or services.
(3) Regulations made by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland may specify only items which—
(a) are single use items,
(b) are made wholly or partly of plastic, and
(c) are supplied in connection with goods or services.
(4) A “single use item” is a manufactured item which is likely to be used only once, or used only for a short period of time, before being disposed of.
(5) An item is supplied in connection with goods or services if it is supplied—
(a) at the place the goods or services are sold or provided, for the purpose of enabling the goods to be taken away, used or consumed, or enabling the services to be received, or
(b) for the purpose of enabling goods to be delivered.
(6) In particular, a container or other packaging into which goods are placed at the point of sale is supplied in connection with goods.
Requirement to charge
2 The regulations may make provision requiring sellers of goods or services to charge for items specified in the regulations.
Sellers of goods and services
3 (1) “Seller”, in relation to goods or services, has the meaning given by the regulations.
(2) The regulations may define that term by reference (in particular) to—
(a) a person’s involvement in selling the goods or services,
(b) a person’s interest in goods or services, or
(c) a person’s interest in the place at or from which the goods or services are sold or provided,
or any combination of those factors.
(3) The regulations may make provision for the regulations to apply—
(a) to all sellers of goods or services, or
(b) to sellers of goods or services identified by reference to factors specified in the regulations.
(4) The factors which may be specified in the regulations include—
(a) the place or places at or from which a seller supplies goods or services,
(b) the type of goods or services that a seller supplies,
(c) the value of goods or services that a seller supplies, and
(d) a seller’s turnover or any part of that turnover.
Amount of charge
4 The regulations may specify the minimum amount that a seller must charge for an item specified in the regulations, or provide for that amount to be determined in accordance with the regulations.
Administration
5 (1) The regulations may appoint a person (an “administrator”) to administer provision made by the regulations.
(2) More than one person may be appointed as an administrator.
(3) The regulations may confer functions on an administrator (including functions involving the exercise of discretion).
(4) References in this Schedule to an administrator include a person appointed by an administrator or exercising functions on an administrator’s behalf.
Registration
6 (1) The regulations may require sellers to register with an administrator.
(2) The regulations may make provision—
(a) about applications for registration;
(b) about the period for which registration has effect;
(c) about the cancellation of registration.
(3) The regulations may require sellers to pay to the administrator, in connection with their registration, fees of an amount determined by or in accordance with the regulations.
(4) The regulations may provide for the amount of the fees to be such as to recover the costs incurred by the administrator in performing its functions under the regulations.
Record-keeping and publication of records
7 (1) The regulations may require records to be kept relating to charges made for items specified in the regulations.
(2) The regulations may require the records, or such other information as may be specified—
(a) to be published at such times and in such manner as may be specified;
(b) to be supplied on request and in such manner as may be specified to—
(i) the relevant national authority,
(ii) an administrator, or
(iii) members of the public.
(3) The regulations may (in particular) require the publication or supply of records or information relating to any of the following—
(a) the amount received by a seller by way of charges for items specified in the regulations;
(b) the seller’s gross or net proceeds of the charge;
(c) the uses to which the net proceeds of the charge have been put.
(4) In this paragraph—
“gross proceeds of the charge” means the amount received by the seller by way of charges for items specified in the regulations;
“net proceeds of the charge” means the seller’s gross proceeds of the charge reduced by such amount as may be specified.
Enforcement
8 (1) The regulations may confer functions on an administrator to enforce provision made by the regulations.
(2) The regulations may (in particular) confer powers on an administrator to—
(a) require the production of documents or the provision of information, or
(b) question a seller or officers or employees of a seller.
(3) Regulation under sub-paragraph (2) must contain provision for ensuring that the power in question is exercised by a person only where the person reasonably believes there has been a failure to comply with a requirement of regulations under this Schedule.
Civil sanctions
9 (1) The regulations may make provision for, about or connected with the imposition of civil sanctions in respect of failures to comply with the regulations, or the obstruction of or failure to assist a person on whom functions are conferred by the regulations.
(2) The regulations may make provision for appeals against such sanctions.
(3) In this paragraph “civil sanction” means a sanction of a kind for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (fixed monetary penalties, discretionary requirements, stop notices and enforcement undertakings).
(4) The regulations may include provision for the imposition of sanctions of that kind whether or not—
(a) the conduct in respect of which the sanction is imposed constitutes an offence,
(b) the enforcement authority is a regulator for the purposes of Part 3 of the Regulatory Enforcement and Sanctions Act 2008, or
(c) the relevant national authority may make provision for the imposition of sanctions under that Part.
Section 66
Powers to search and seize vehicles in connection with waste offences
1 In section 5(6) of the Control of Pollution (Amendment) Act 1989 (constable’s power to seize vehicles and contents)—
(a) in paragraph (b) after “presence of” insert “or at the request of”;
(b) in paragraph (c) for “without such an officer present” substitute “in any other case”.
2 In section 34B(6) of the Environmental Protection Act 1990 (constable’s power to seize vehicles and contents)—
(a) in paragraph (b) after “presence of” insert “or at the request of”;
(b) in paragraph (c) for “without such an officer present” substitute “in any other case”.
Powers of direction in relation to waste
3 (1) Section 57 of the Environmental Protection Act 1990 (power to give directions) is amended as follows.
(2) In subsection (2) omit the words from “with a view” to the end.
(3) After subsection (2) insert—
(2A) The appropriate Minister may, by notice in writing—
(a) direct a registered waste carrier to collect waste which is being kept on specified land and deliver it to a specified person on specified terms;
(b) direct any person who—
(i) is keeping waste on any land, or
(ii) owns or occupies land on which waste is being kept,
to facilitate collection of the waste by a specified registered waste carrier to whom a direction in respect of the waste is given under paragraph (a).
(4) In subsection (4), for “of treating or disposing of” substitute “in relation to”.
(5) After subsection (4) insert—
(4A) A direction under subsection (2A)(b) may require the person to whom it is given—
(a) to pay to the specified registered waste carrier the reasonable costs of collecting and delivering the waste;
(b) to pay to the specified person to whom the waste is delivered (“P”) the reasonable costs incurred by P in relation to the waste (including any costs P is required by a direction under this section to pay to another person).
(6) In subsection (7) for the words from “, where” to the end substitute “pay any costs mentioned in subsection (4).”
(7) After subsection (7) insert—
(7A) The appropriate Minister may pay any costs mentioned in subsection (4A).
(8) In subsection (8), before the definition of “specified” insert—
“appropriate Minister” means—
the Secretary of State, in relation to waste being kept on land in England, and
the Welsh Ministers, in relation to waste being kept on land in Wales;
“registered waste carrier” means a person registered under the Control of Pollution (Amendment) Act 1989 as a carrier of controlled waste;
.
Powers of entry in relation to pollution control etc
4 The Environment Act 1995 is amended as follows.
5 (1) Section 108 (powers of enforcing authorities and their authorised officers) is amended as follows.
(2) In subsection (4), after paragraph (k) insert—
(ka) as regards any premises which an English or Welsh authorised person has power to enter by virtue of paragraph (a), for the purposes of an examination or investigation under paragraph (c)—
(i) to search the premises;
(ii) to seize and remove documents or anything else found on the premises (other than an article or substance within paragraph (g));
(iii) to require any information which is stored in electronic form and is accessible from the premises to be produced in a form in which it can be removed and—
(a) in which it is visible and legible, or
(b) from which it can readily be produced in a visible and legible form;
(iv) to operate any equipment found on the premises for the purposes of producing such information in such a form;
.
(3) In subsection (6), omit paragraph (a).
(4) After subsection (7) insert—
(7A) An English or Welsh authorised person may not exercise the powers in subsection (4)(ka) without—
(a) the consent of a person entitled to grant access to material on or accessible from the premises, or
(b) the authority of a warrant by virtue of Schedule 18 to this Act.
This is subject to subsections (7B) and (7C).
(7B) An English or Welsh authorised person may exercise a power in subsection (4)(ka)(ii) to (ka)(iv) in relation to a thing without consent or the authority of a warrant if the person has reasonable grounds for believing that—
(a) it is evidence of a failure to comply with any provision of the pollution control enactments or flood risk activity enactments, and
(b) exercising the power is necessary to prevent it being concealed, lost, altered or destroyed.
(7C) Subsection (7A) does not require consent or the authority of a warrant for doing something within the powers in subsection (4)(ka) if, and so far as, it may be done without them in exercise of another power conferred by subsection (4).
(7D) Where anything seized or removed from premises under subsection (4)(ka) contains protected material, that material—
(a) may not be used for the purposes of an examination or investigation under subsection (4)(c), and
(b) must be returned to the premises from which it was removed, or to the person who had possession or control of it immediately before it was removed, as soon as reasonably practicable after it is identified as protected material.
(7E) Subsection (7D) does not prevent any part of a thing containing protected material which is not protected material being used for the purposes of an examination or investigation, retained or copied.
(7F) “Protected material” means—
(a) material subject to legal professional privilege,
(b) excluded material within the meaning of section 11 of the Police and Criminal Evidence Act 1984, or
(c) journalistic material, within the meaning of section 13 of that Act, which is not excluded material.
(5) After subsection (12) insert—
(12A) Subject to subsection (7D), anything seized or removed under subsection (4)(ka) may be retained for so long as is necessary in all the circumstances.
(6) In subsection (15)—
(a) after the definition of “authorised person” insert—
“document” includes anything in which information of any description is recorded (by any means) and any part of such a thing;
;
(b) after the definition of “enforcing authority” insert—
“English or Welsh authorised person” means a person authorised under subsection (1) or (2) by the Secretary of State, the Welsh Ministers, the Agency, the Natural Resources Body for Wales, a waste collection authority or a local enforcing authority in England or Wales;
;
(c) in the definition of “pollution control functions” in relation to a waste collection authority, in paragraph (a) after “46” insert “to 46D”.
6 (1) Schedule 18 (supplemental provision about powers of entry) is amended as follows.
(2) In paragraph 2—
(a) after sub-paragraph (2) insert—
(2A) A justice of the peace may by warrant authorise an English or Welsh authorised person, designated for the purpose by the person who authorised them, to exercise the powers in section 108(4)(ka) in accordance with the warrant and, if need be, by force.
(2B) The justice may do so only if satisfied that there are reasonable grounds for believing that—
(a) there is material on or accessible from the premises in question which is likely to be of substantial value (by itself or together with other material) to an examination or investigation under section 108(4)(c), and
(b) it is impracticable to communicate with a person entitled to grant access to it, or access to it is unlikely to be granted unless a warrant is produced.
;
(b) omit sub-paragraph (3).
(3) In paragraph 3 after “shall” insert “, if so required,”.
SCHEDULE 11 Local air quality management framework
Section 72
1 The Environment Act 1995 is amended as follows.
2 (1) Section 80 (national air quality strategy) is amended as follows.
(2) Omit subsection (3).
(3) After subsection (4) insert—
(4A) The strategy must be reviewed, and if appropriate modified—
(a) within the period of 12 months beginning with the day on which this subsection comes into force, and
(b) within each period of 5 years beginning with the day on which the person carrying out the review completed their most recent review under this subsection.
3 After that section insert—
Duty to report on air quality in England
80A As soon as reasonably practicable after the end of each financial year, beginning with the financial year in which this section comes into force, the Secretary of State must lay a statement before Parliament that sets out—
(a) the Secretary of State’s assessment of the progress made in meeting air quality objectives, and air quality standards, in relation to England, and
(b) the steps the Secretary of State has taken in that year in support of the meeting of those objectives and standards.
4 After section 81 insert—
Functions of relevant public authorities etc
81A (1) The following persons must have regard to the strategy when exercising any function of a public nature that could affect the quality of air—
(a) relevant public authorities;
(b) local authorities in England;
(c) county councils for areas in England for which there are district councils.
(2) In this Part, “relevant public authority” means a person designated in accordance with subsection (3) as a relevant public authority in relation to an area in England.
(3) The Secretary of State may by regulations designate a person as a relevant public authority in relation to an area in England if the person’s functions include functions of a public nature in relation to that area.
(4) Before making regulations under subsection (3) the Secretary of State must consult—
(a) the person that is proposed to be designated, and
(b) such other persons as the Secretary of State considers appropriate.
(5) The requirement in subsection (4) may be met by consultation carried out before this section comes into force.
(6) For the purposes of subsections (2) and (3), reference to England includes the territorial sea adjacent to England, which for this purpose does not include—
(a) any part of the territorial sea which is adjacent to Wales for the purposes of the Government of Wales Act 2006 (see section 158 of that Act), or
(b) any part of the territorial sea which is adjacent to Scotland for the purposes of the Scotland Act 1998 (see section 126 of that Act).
5 (1) Section 82 (local authority reviews) is amended as follows.
(2) In subsection (3)—
(a) for “If” substitute “This subsection applies to a local authority where”;
(b) omit the words from “, the local authority shall” to the end.
(3) After subsection (3) insert—
(4) Where subsection (3) applies to a local authority, it must identify any parts of its area in which it appears that air quality standards or objectives are not likely to be achieved within the relevant period.
(5) Where subsection (3) applies to a local authority in England, it must also—
(a) identify relevant sources of emissions that it considers are, or will be, responsible (in whole or in part) for any failure to achieve air quality standards or objectives in its area,
(b) in the case of a relevant source within the area of a neighbouring authority, identify that authority, and
(c) in the case of a relevant source within an area in relation to which a relevant public authority or the Agency has functions of a public nature, identify that person in relation to that source.
(6) For the purposes of subsection (5), a source is “relevant” if—
(a) it is within the area of the local authority,
(b) it is within the area of a neighbouring authority in England, or
(c) it is within an area in relation to which a relevant public authority or the Agency has functions of a public nature and the local authority considers that the exercise of those functions is relevant to the source of the emissions.
6 After section 83 insert—
Duties of English local authorities in relation to designated areas
83A (1) This section applies in relation to a local authority in England.
(2) A local authority must, for the purpose of securing that air quality standards and objectives are achieved in an air quality management area designated by that authority, prepare an action plan in relation to that area.
(3) An action plan is a written plan that sets out how the local authority will exercise its functions in order to secure that air quality standards and objectives are achieved in the area to which the plan relates.
(4) An action plan must also set out how the local authority will exercise its functions to secure that air quality standards and objectives are maintained after they have been achieved in the area to which the plan relates.
(5) An action plan must set out particular measures the local authority will take to secure the achievement, and maintenance, of air quality standards and objectives in the area to which the plan relates, and must in relation to each measure specify a date by which it will be carried out.
(6) A local authority may revise an action plan at any time, and must revise an action plan if it considers that there is a need for further or different measures to be taken to secure that air quality standards and objectives are achieved or maintained in the area to which the plan relates.
(7) Subsections (8) to (10) apply where a district council in an area for which there is a county council is preparing an action plan, or a revision of an action plan.
(8) Where the county council disagrees with the contents of the proposed plan, or the proposed revision of a plan, a referral of the matter may be made to the Secretary of State by—
(a) the county council;
(b) the district council preparing the plan or revision.
(9) The Secretary of State may, on a reference made under subsection (8), confirm (with or without modifications) or reject the proposed action plan, or revision of an action plan.
(10) Where a reference has been made under subsection (8), the district council may not finally determine the proposed action plan or revision of an action plan, except in accordance with the decision of the Secretary of State on the reference or in pursuance of a direction made by the Secretary of State under section 85.
7 (1) Section 84 (duties of local authorities in relation to designated areas) is amended as follows.
(2) In the heading, after “of” insert “Scottish and Welsh”.
(3) Before subsection (2) insert—
(1A) This section applies in relation to a local authority in Scotland or Wales.
(4) Omit subsection (5).
8 After section 85 insert—
Duty of air quality partners to co-operate
85A (1) For the purposes of this Part, an “air quality partner” of a local authority means a person identified by that authority in accordance with section 82(5)(b) or (c).
(2) An air quality partner of a local authority must provide the authority with such assistance in connection with the carrying out of any of the authority’s functions under this Part as the authority requests.
(3) An air quality partner may refuse a request under subsection (2) to the extent it considers the request unreasonable.
Role of air quality partners in relation to action plans
85B (1) Where a local authority in England intends to prepare an action plan it must notify each of its air quality partners that it intends to do so.
(2) Where an air quality partner of a local authority has been given a notification under subsection (1) it must, before the end of the relevant period, provide the authority with proposals for particular measures the partner will take to contribute to the achievement, and maintenance, of air quality standards and objectives in the area to which the plan relates.
(3) An air quality partner that provides proposals under subsection (2) must—
(a) in those proposals, specify a date for each particular measure by which it will be carried out, and
(b) as far as is reasonably practicable, carry out those measures by those dates.
(4) An action plan prepared by a local authority in England must set out any proposals provided to it by its air quality partners under subsection (2) (including the dates specified by those partners by virtue of subsection (3)(a)).
(5) The Secretary of State may direct an air quality partner to make further proposals under subsection (2) by a date specified in the direction where the Secretary of State considers the proposals made by the partner under that subsection are insufficient or otherwise inappropriate.
(6) A direction under subsection (5) may make provision about the extent to which the further proposals are to supplement or replace any other proposals made under subsection (2) by the air quality partner.
(7) An air quality partner must comply with any direction given to it under this section.
9 (1) Section 86 (functions of county councils for areas for which there are district councils) is amended as follows.
(2) Omit subsection (1).
(3) In subsection (2), for the words before paragraph (a) substitute “A county council for an area in England for which there are district councils may make recommendations to any of those district councils with respect to the carrying out of—”.
(4) After subsection (2) insert—
(2A) Where a district council of a district in England for which there is a county council intends to prepare an action plan it must notify the county council that it intends to do so.
(5) For subsections (3) to (5) substitute—
(3) Where a county council has been given a notification by a district council under subsection (2A) it must, before the end of the relevant period, provide the district council with proposals for particular measures the county council will take to contribute to the achievement, and maintenance, of air quality standards and objectives in the area to which the plan relates.
(4) A county council that provides proposals under subsection (3) must—
(a) in those proposals, specify a date for each particular measure by which it will be carried out, and
(b) as far as is reasonably practicable, carry out those measures by those dates.
(5) An action plan prepared by a district council of a district in England for which there is a county council must set out any proposals provided to it by the county council under subsection (3) (including the dates specified by the county council by virtue of subsection (4)(a)).
(6) In subsection (6), in paragraph (a), after “district council” insert “of a district in England for which there is a county council”.
(7) In subsection (7)—
(a) in paragraph (a), omit the words from “above or” to the end;
(b) in paragraph (b)—
(i) omit “or statement”;
(ii) omit “or (4) above”;
(c) in paragraph (c)—
(i) omit “or statement”;
(ii) omit “or (4) above”.
10 For section 86A substitute—
Role of the Mayor of London in relation to action plans
86A (1) Where a local authority in London intends to prepare an action plan it must notify the Mayor of London (referred to in this section as “the Mayor”).
(2) Where the Mayor has been given a notification under subsection (1) by a local authority in London the Mayor must, before the end of the relevant period, provide the authority with proposals for particular measures the Mayor will take to contribute to the achievement, and maintenance, of air quality standards and objectives in the area to which the plan relates.
(3) Where the Mayor provides proposals under subsection (2), the Mayor must—
(a) in those proposals, specify a date for each particular measure by which it will be carried out, and
(b) as far as is reasonably practicable, carry out those measures by those dates.
(4) An action plan prepared by a local authority in London must set out any proposals provided to it by the Mayor under subsection (2) (including the dates specified by the Mayor by virtue of subsection (3)(a)).
Role of combined authorities in relation to action plans
86B (1) Where a local authority in the area of a combined authority intends to prepare an action plan it must notify the combined authority.
(2) Where a combined authority has been given a notification under subsection (1) by a local authority, the combined authority must, before the end of the relevant period, provide the local authority with proposals for particular measures the combined authority will take to contribute to the achievement, and maintenance, of air quality standards and objectives in the area to which the plan relates.
(3) Where a combined authority provides proposals under subsection (2), the combined authority must—
(a) in those proposals, specify a date for each particular measure by which it will be carried out, and
(b) as far as is reasonably practicable, carry out those measures by those dates.
(4) An action plan prepared by a local authority in the area of a combined authority must set out any proposals provided to it under subsection (2) (including the dates specified by virtue of subsection (3)(a)).
(5) In this section “combined authority” has the meaning it has in Part 6 of the Local Democracy, Economic Development and Construction Act 2009 (see section 120 of that Act).
11 (1) Section 87 (regulations) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (c), after “authorities” insert “, relevant county councils, relevant public authorities or the Agency”;
(b) in paragraph (j), after “otherwise)” insert “, relevant county councils, relevant public authorities, the Agency”;
(c) in paragraph (l), after “authorities” insert “, relevant county councils, relevant public authorities or the Agency”;
(d) in paragraph (m)—
(i) after “local authority” insert “, a relevant county council, a relevant public authority or the Agency”;
(ii) after “the authority”, in both places it occurs, insert “, council or Agency”.
(3) After that subsection insert—
(2A) In subsection (2) “relevant county council” means a county council for an area in England for which there are district councils.
12 In section 88, in subsection (3), after “district councils” insert “, relevant public authorities and the Agency”.
13 In section 91 (interpretation), in subsection (1)—
(a) for the definition of “action plan” substitute—
“action plan” is to be construed—
in relation to England, in accordance with section 83A;
otherwise, in accordance with section 84(2);
;
(b) at the appropriate places insert—
“air quality partner” has the meaning given by section 85A(1);
;
“neighbouring authority”, in relation to a local authority (“the principal authority”), means another local authority whose area is contiguous with the area of the principal authority;
;
“relevant public authority” has the meaning given by section 81A(2);
.
14 In Schedule 11 (air quality: supplemental provisions), in paragraph 1(2), for paragraph (d) substitute—
(d) every neighbouring authority;
.
Section 73
PART 1 Principal amendments to the Clean Air Act 1993: England
1 The Clean Air Act 1993 is amended as follows.
2 After section 19 insert—
Regulation of smoke and fuel in smoke control areas in England
Penalty for emission of smoke in smoke control area in England
19A Schedule 1A makes provision for financial penalties in relation to the emission of smoke in smoke control areas in England.
3 After Schedule 1 insert—
SCHEDULE 1A
Penalty for emission of smoke in smoke control area in England
Key definitions
1 In this Schedule—
“relevant chimney” means—
a chimney of a building to which a smoke control order in England applies, or
a chimney which serves the furnace of any fixed boiler or industrial plant to which a smoke control order in England applies;
“person liable”, in relation to a relevant chimney, means—
if the chimney is the chimney of a building, the occupier of the building, or
if the chimney serves the furnace of any fixed boiler or industrial plant, the person having possession of the boiler or plant.
Notice of intent
2 (1) This paragraph applies where a local authority is satisfied, on the balance of probabilities, that on a particular occasion smoke has been emitted from a relevant chimney within a smoke control area declared by that authority.
(2) The local authority may give to the person liable a notice under this paragraph (a “notice of intent”).
(3) A notice of intent must—
(a) inform the person that the local authority is satisfied as specified in sub-paragraph (1),
(b) specify the occasion referred to in sub-paragraph (1),
(c) inform the person that the local authority proposes to impose a financial penalty under this Schedule (including the proposed amount of the penalty), and
(d) give details regarding the person’s right to object to the imposition of a financial penalty.
Amount of penalty
3 (1) The minimum amount of a financial penalty that may be imposed under this Schedule is £175.
(2) The maximum amount of a financial penalty that may be imposed under this Schedule is £300.
(3) The Secretary of State may by regulations amend sub-paragraph (1) or (2) so as to substitute a different amount for the amount specified there.
(4) Regulations under sub-paragraph (3) may not be made unless a draft of the regulations has been laid before, and approved by resolution of, each House of Parliament.
Right to object to proposed financial penalty
4 (1) A person to whom a notice of intent is given may, within the period of 28 days beginning with the day after that on which the notice was given—
(a) object in writing to the local authority on a ground specified in sub-paragraph (2), and
(b) provide evidence that supports the objection.
(2) The grounds of objection referred to in sub-paragraph (1) are—
(a) that there was no emission of smoke from the chimney on the occasion specified in the notice of intent;
(b) that the chimney was not a chimney to which a smoke control order applied on the occasion specified in the notice of intent;
(c) that the person to whom the notice of intent was given was not a person liable in relation to the chimney on the occasion specified in the notice of intent;
(d) that there are other compelling reasons why the financial penalty should not be imposed.
(3) Where a person objects on the ground specified in sub-paragraph (2)(c), the objection must include the name and address of the person who was the person liable on the occasion specified in the notice of intent (if known).
(4) The Secretary of State may by regulations amend this paragraph so as to amend the grounds of objection listed in sub-paragraph (2).
(5) Before making regulations under sub-paragraph (4) the Secretary of State must consult anyone that the Secretary of State considers may have an interest in the proposed regulations.
(6) Regulations under sub-paragraph (4) may not be made unless a draft of the regulations has been laid before, and approved by resolution of, each House of Parliament.
Decision regarding a final notice
5 (1) Where a local authority in England has given a notice of intent to a person, the authority may impose a financial penalty on the person if the local authority so decides within—
(a) the period of 56 days beginning with the day on which an objection is made under paragraph 4, or
(b) if no such objection is made, the period of 56 days beginning with the day after the day on which the period mentioned in paragraph 4(1) ended.
(2) If the local authority decides not to impose a financial penalty on a person, or does not decide to impose a financial penalty on the person within the period specified in sub-paragraph (1), the authority must give a notice to that person that informs the person that a financial penalty will not be imposed.
Final notice
6 (1) This paragraph applies where a local authority in England decides to impose a financial penalty on a person who was given a notice of intent.
(2) The local authority may impose a financial penalty by a notice given to that person (a “final notice”).
(3) A final notice must specify—
(a) the amount of the financial penalty,
(b) the reasons for imposing the penalty,
(c) information about how to pay the penalty,
(d) the period for payment of the penalty, and
(e) information about rights of appeal.
(4) The final notice must require the financial penalty to be paid within the period of 28 days beginning with the day after that on which the notice was given.
Withdrawal or amendment of notices
7 (1) A local authority may at any time—
(a) withdraw a notice of intent or a final notice, or
(b) reduce the amount of the financial penalty specified in a final notice.
(2) The power in sub-paragraph (1) is to be exercised by giving notice to the person to whom the notice of intent or final notice was given.
Appeals
8 (1) A person on whom a financial penalty is imposed by a final notice may, within the period of 28 days beginning with the day after that on which the notice was given, appeal against the notice to the First-tier Tribunal.
(2) The grounds for an appeal under this paragraph are that the decision to impose the financial penalty was—
(a) based on an error of fact,
(b) wrong in law, or
(c) unreasonable.
(3) If a person appeals under this paragraph, the final notice is suspended until the appeal is finally determined or withdrawn.
(4) On an appeal under this paragraph the First-tier Tribunal may—
(a) quash the final notice,
(b) confirm the final notice,
(c) vary the final notice by reducing the amount of the financial penalty, or
(d) remit to the local authority the decision whether to—
(i) withdraw or confirm the final notice, or
(ii) vary the final notice by reducing the amount of the financial penalty.
Recovery of penalties
9 A financial penalty is recoverable as a civil debt due to the local authority that imposed the penalty.
Delegation
10 (1) A local authority may delegate to a person the exercise of any of the authority’s functions under this Schedule.
(2) A delegation under this paragraph must be made by giving notice to the person.
Notices
11 (1) A notice under this Schedule must be in writing.
(2) A notice under this Schedule may be given to a person by—
(a) handing it to the person,
(b) leaving it at the person’s address,
(c) sending it by post to the person at their address, or
(d) with the person’s consent, sending it to them electronically.
Notices: vessels which are moored
12 (1) This paragraph applies in relation to a vessel which is moored in a smoke control area in England and is subject to the operation of this Schedule (see section 44).
(2) If the local authority is unable to give a notice of intent to the occupier of the vessel who is not the registered owner of the vessel, the local authority may give the notice to the registered owner of the vessel instead.
(3) In such a case, the ground for objecting to the proposed financial penalty mentioned in paragraph 4(2)(c) does not apply.
(4) Where a notice of intent is given to a person in respect of a vessel, that person may object under paragraph 4 on the further ground that, on the occasion specified in the notice, the emission of smoke was solely due to the use of the vessel’s engine to propel the vessel or to provide electric power to the vessel.
4 After section 19A (as inserted by paragraph 2 above)—
Acquisition and sale of controlled solid fuel in England
19B (1) A person who acquires in England any controlled solid fuel for use in—
(a) a building to which a smoke control order in England applies,
(b) a fireplace to which such an order applies, or
(c) a fixed boiler or industrial plant to which such an order applies,
is guilty of an offence.
(2) Where a smoke control order in England applies to a moored vessel (see section 44), subsection (1)(a) does not apply in relation to the acquisition of controlled solid fuel for use in the propulsion of the vessel or to provide electric power to the vessel.
(3) Subsection (1)(b) does not apply where the fireplace was an approved fireplace at the time of the acquisition.
(4) A person who—
(a) offers controlled solid fuel for sale by retail in England where the fuel is to be taken away by a purchaser, and
(b) fails to take reasonable steps to notify potential purchasers that it is an offence to acquire that fuel for any of the uses mentioned in subsection (1),
is guilty of an offence.
(5) A person who sells any controlled solid fuel by retail in England for delivery by that person, or on that person’s behalf, to—
(a) a building to which a smoke control order in England applies, or
(b) premises in which there is any fixed boiler or industrial plant to which such an order applies,
is guilty of an offence.
(6) In proceedings for an offence under subsection (5) it is a defence for the person accused to prove that the person believed and had reasonable grounds for believing that—
(a) the building referred to in subsection (5)(a) was not one to which the smoke control order in question applied, or
(b) the fuel was acquired for use in—
(i) a fireplace that was, at the time of the delivery, an approved fireplace, or
(ii) a boiler or plant to which the smoke control order did not apply.
(7) A person guilty of an offence under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(8) A person guilty of an offence under subsection (4) or (5) is liable on summary conviction to a fine.
Exemptions relating to particular areas in England
19C (1) The Secretary of State may, if it appears to the Secretary of State to be necessary or expedient to do so, by order suspend or relax the operation of—
(a) Schedule 1A (penalty for emission of smoke), or
(b) section 19B(1), (4) or (5) (offences relating to acquisition and sale of fuel),
in relation to the whole or part of a smoke control area in England.
(2) Before making an order under subsection (1) the Secretary of State must consult the local authority that declared the smoke control area in question unless satisfied that, on account of urgency, such consultation is impracticable.
(3) As soon as practicable after the making of such an order the local authority must take such steps as appear to them suitable for bringing the effect of the order to the notice of persons affected.
Interpretation: “approved fireplace” and “controlled solid fuel”
19D (1) In section 19B, “approved fireplace” means a fireplace of a type specified in a list published by the Secretary of State.
(2) The Secretary of State may only specify a type of fireplace in the list if satisfied that such a fireplace can, if used in compliance with any conditions specified in the list, be used for burning controlled solid fuel without producing any smoke or a substantial quantity of smoke.
(3) In section 19B and this section, “controlled solid fuel” means any solid fuel other than an approved fuel.
(4) In subsection (3), “approved fuel” means a solid fuel specified in a list which has been published by the Secretary of State for the purposes of this section.
5 After section 26 insert—
Duty of local authority to reimburse for adaptations of vessels in England
26A (1) This section applies where—
(a) a local authority in England makes a smoke control order,
(b) as a result of the order a vessel will, when the order comes into operation, be within a smoke control area and subject to the operation of Schedule 1A,
(c) the owner or occupier of the vessel has a right to moor the vessel at a single mooring place within that area for the period which—
(i) begins on the day on which the smoke control order is made, and
(ii) ends six months after it comes into operation, and
(d) the owner or occupier does not have access to a mains electricity or gas supply at the mooring place.
(2) If—
(a) before the coming into operation of the order, the owner or occupier incurs expenditure on adaptations to or in connection with the vessel to avoid the imposition of a penalty under Schedule 1A,
(b) the expenditure is incurred with the approval of the local authority given for the purpose of this section, and
(c) the adaptations are completed to the satisfaction of the local authority,
the authority must pay to the owner or occupier of the vessel 70% of the expenditure.
(3) That amount must be paid in equal instalments every month for a period of six months.
(4) But the duty to pay instalments under this section ceases if, at any time after the coming into operation of the smoke control order—
(a) the owner or occupier of the vessel ceases to have the right to moor the vessel at the single mooring place mentioned in subsection (1)(c), or
(b) the vessel is absent from the smoke control area for a period of, or periods together totalling, three months.
6 After section 28 insert—
Guidance for local authorities in England
28A A local authority in England must have regard to any guidance published by the Secretary of State about the exercise of the authority’s functions under this Part.
7 In section 44 (vessels), after subsection (2) insert—
(2A) A smoke control order made under section 18 by a local authority in England may provide for vessels which are moored in the smoke control area to be subject to the operation of Schedule 1A.
(2B) For the purposes of a smoke control order which so provides—
(a) any reference in Part 3 and in section 54 to a building is to be read with any necessary modifications as a reference to such a vessel, but
(b) references in sections 24 and 25 to dwellings do not include such vessels.
(2C) In subsection (2A) the reference to vessels which are moored includes a vessel which is unmoored but which is stationary at a mooring place in circumstances where it might reasonably be moored.
8 In section 56 (rights of entry and inspection etc), for subsection (2) substitute—
(2) Subsection (1) does not apply in relation to a private dwelling except in relation to—
(a) a private dwelling in relation to which adaptations are required under section 24(1), or
(b) a private dwelling that is a vessel in relation to which there is a duty to make payments under section 26A(3).
PART 3 Minor and consequential amendments
Minor and consequential amendments to the Clean Air Act 1993
12 The Clean Air Act 1993 is amended as follows.
13 (1) Section 18 (declaration of smoke control area by local authority) is amended as follows.
(2) In subsection (2)—
(a) in paragraph (b)—
(i) after “smoke” insert “in Wales”;
(ii) before “to” insert “or Schedule 1A (penalty for emission of smoke in England)”;
(b) in paragraph (c), after “section” insert “or Schedule”.
(3) After subsection (2) insert—
(2A) For the purposes of this Part a smoke control order in England “applies” to a building, fireplace, fixed boiler or industrial plant if the operation of Schedule 1A is not excluded in relation to it by virtue of subsection (2)(b) or (c).
14 (1) Section 20 (prohibition on emission of smoke in smoke control area) is amended as follows.
(2) In the heading, at the end insert “in Wales”.
(3) In subsections (1) and (2), after “area” insert “in Wales”.
(4) Omit subsections (5ZA) to (5ZC).
(5) If at the time of the coming into force of this paragraph Part 2 of this Schedule is not in force, in subsection (6)—
(a) omit “Except as provided by subsection (5ZA),”;
(b) for “Secretary of State” substitute “Welsh Ministers”.
15 (1) Section 21 (power to exempt certain fireplaces) is amended as follows.
(2) In the heading, at the end insert “in Wales”.
(3) Omit subsections (A1) to (A4).
(4) If at the time of the coming into force of this paragraph Part 2 of this Schedule is not in force, in subsection (5)—
(a) omit “Except where subsection (A1) applies,”;
(b) for “Secretary of State” substitute “Welsh Ministers”;
(c) for “he is” substitute “they are”.
16 (1) Section 22 (exemptions relating to particular areas) is amended as follows.
(2) In the heading, at the end insert “in Wales”.
(3) In subsection (1)—
(a) for “Secretary of State” substitute “Welsh Ministers”;
(b) for “him” substitute “them”;
(c) after “area”, in both places, insert “in Wales”.
(4) In subsection (2)—
(a) for “Secretary of State” substitute “Welsh Ministers”;
(b) for “he is” substitute “they are”.
17 (1) Section 23 (acquisition and sale of unauthorised fuel in a smoke control area) is amended as follows.
(2) In the heading, at the end insert “in Wales”.
(3) In subsection (1)—
(a) in paragraph (a), after “area” in both places insert “in Wales”;
(b) in paragraph (b), after “area” insert “in Wales”;
(c) in paragraph (c)—
(i) after “fuel” insert “in Wales”;
(ii) in sub-paragraph (i), after “area” insert “in Wales”.
(4) In subsection (3), after “area” insert “in Wales”.
(5) In subsection (4)—
(a) for “Secretary of State” substitute “Welsh Ministers”;
(b) after first “area” insert “in Wales”.
(6) In subsection (5)—
(a) after first “fuel” insert “in Wales”;
(b) after “premises” insert “in Wales”.
18 In section 24 (power to require adaptations of fireplaces), in subsection (1)—
(a) after second “area” insert “in Wales”;
(b) at the end insert “or the imposition of a financial penalty under Schedule 1A (penalty for emission of smoke in England)”.
19 In section 26 (power to make grants for fireplaces in churches etc)—
(a) in subsection (1)—
(i) after second “area” insert “in Wales”;
(ii) before “, the local authority” insert “or the imposition of a financial penalty under Schedule 1A (penalty for emission of smoke in England)”;
(b) after subsection (2) insert—
(3) Where a smoke control order in England applies to a vessel which is moored (see section 44), subsection (2)(c) applies to the vessel as it applies in relation to premises.
20 In section 27 (references to adaptations)—
(a) in the heading, at the end insert “or Schedule 1A”;
(b) in subsection (1)—
(i) after “area” insert “in Wales”;
(ii) before “shall be read” insert “or the imposition of a financial penalty under Schedule 1A (penalty for emission of smoke in England)”;
(iii) at the end insert “or incurring liability under Schedule 1A”;
(c) in subsection (3), after “Act” insert “or liability under Schedule 1A to this Act”;
(d) in subsection (4), at the end insert “, and to any vessel to which section 26 or 26A (adaptations of vessels in England) applies”.
21 In section 28 (expenditure on execution of works), in subsection (3), at the end insert “, and to any vessel to which section 26 or section 26A (adaptations of vessels in England) applies”.
22 In section 29 (interpretation)—
(a) in the definition of “old private dwelling”, omit the final “and”;
(b) in the definition of “smoke control order”, at the end insert “and”;
(c) after that definition insert—
“smoke control order in England” means a smoke control order made by a local authority in England.
23 In section 63 (orders and regulations)—
(a) in subsection (2), after “47(2)” insert “or paragraph 3(4) or 4(6) of Schedule 1A”;
(b) in subsection (3), after “section” insert “19C,”.
24 (1) Schedule 1 (coming into operation of smoke control orders) is amended as follows.
(2) In paragraph 5—
(a) after “area” insert “in Wales”;
(b) before “may” insert “or Schedule 1A (penalty for emission of smoke in England)”.
(3) After paragraph 6 insert—
6A When a local authority in England has made an order, the authority must—
(a) inform the Secretary of State that it has done so, and
(b) provide the date on which the order is to come, or came, into operation.
Minor amendments to other legislation
25 In section 79 of the Environmental Protection Act 1990 (statutory nuisances), in subsection (3)(i), insert “in Wales”.
PART 4 Smoke control areas in England: transitional provision
26 Where a local authority in England has made a smoke control order under section 18 of the Clean Air Act 1993, any limitations or exemptions from the operation of section 20 of that Act (prohibition of emissions of smoke) made by that order under section 18(2)(b) or (c) of that Act that apply immediately before the commencement of Parts 1 and 3 of this Schedule continue to apply as if they were limitations or exemptions from the operation of Schedule 1A to that Act (penalty for emission of smoke), as inserted by paragraph 3 of this Schedule.