36 Codes of practice with respect to environmental and recreational duties.
(1) The Secretary of State shall have power by order to approve any code of practice issued (whether by him or by another person) for the purpose of—
(a) giving practical guidance to SEPA with respect to any of the matters for the purposes of which sections 32, 34(2) and 35and 34(2) above have effect; and
(b) promoting what appear to him to be desirable practices by SEPA with respect to those matters,
and may at any time by such an order approve a modification of such a code or withdraw his approval of such a code or modification.
(2) In discharging its duties under section 32, 34(2) or 35or 34(2) above, SEPA shall have regard to any code of practice, and any modifications of a code of practice, for the time being approved under this section.
(3) The Secretary of State shall not make an order under this section unless he has first consulted—
(a) SEPA;
(b) Scottish Natural Heritage;
(c) Scottish Enterprise;
(d) Highlands and Islands Enterprise;
(da) Scottish Water;
(g) the North of Scotland Water Authority; and
(h) such other persons as he considers it appropriate to consult.
(4) The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument; and any statutory instrument containing such an order shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) Each new Agency (that is to say, in this Part, the Agency or SEPA)—
(a) may do anything which, in its opinion, is calculated to facilitate, or is conducive or incidental to, the carrying out of its functions; and
(b) without prejudice to the generality of that power, may, for the purposes of, or in connection with, the carrying out of those functions, acquire and dispose of land and other property and carry out such engineering or building operations as it considers appropriate;
and the Agency may institute criminal proceedings in England and Wales.
(2) It shall be the duty of each new Agency to provide the Secretary of State or the Minister with such advice and assistance as he may request.
(3) Subject to subsection (4) below, each new Agency may provide for any person, whether in or outside the United Kingdom, advice or assistance, including training facilities, as respects any matter in which that new Agency has skill or experience.
(4) Without prejudice to any power of either new Agency apart from subsection (3) above to provide advice or assistance of the kind mentioned in that subsection, the power conferred by that subsection shall not be exercised in a case where the person for whom the advice or assistance is provided is outside the United Kingdom, except with the consent in writing of the appropriate Minister which consent may be given subject to such conditions as the Minister giving it thinks fit.
(5) Each new Agency—
(a) shall make arrangements for the carrying out of research and related activities (whether by itself or by others) in respect of matters to which its functions relate; and
(b) may make the results of any such research or related activities available to any person in return for payment of such fee as it considers appropriate.
(6) Subsection (5) above shall not be taken as preventing a new Agency from making the results of any research available to the public free of charge whenever it considers it appropriate to do so.
(7) Each new Agency may by agreement with any person charge that person a fee in respect of work done, or services or facilities provided, as a result of a request made by him for advice or assistance, whether of a general or specific character, in connection with any matter involving or relating to environmental licences.
(8) Subsection (7) above—
(a) is without prejudice to the generality of the powers of either new Agency to make charges; but
(b) is subject to any such express provision with respect to charging by the new Agency in question as is contained in the other provisions of this Part or in any other enactment.
(8A) In subsection (8) above, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.
(9) In this section “engineering or building operations”, without prejudice to the generality of that expression, includes—
(a) the construction, alteration, improvement, maintenance or demolition of any building or structure or of any reservoir, watercourse, dam, weir, well, borehole or other works; and
(b) the installation, modification or removal of any machinery or apparatus.
38 Delegation of functions by Ministers etc. to the new Agencies.
(1) Agreements may be made between—
(a) any Minister of the Crown, and
(b) a new Agency,
authorising the new Agency (or any of its employees) to exercise on behalf of that Minister, with or without payment, any eligible function of his.
(2) An agreement under subsection (1) above shall not authorise the new Agency (or any of its employees) to exercise on behalf of a Minister of the Crown any function which consists of a power to make regulations or other instruments of a legislative character or a power to fix fees or charges.
(3) An agreement under this section may provide for any eligible function to which it relates to be exercisable by the new Agency in question (or any of its employees)—
(a) either wholly or to such extent as may be specified in the agreement;
(b) either generally or in such cases or areas as may be so specified; or
(c) either unconditionally or subject to the fulfilment of such conditions as may be so specified.
(4) Subsection (5) below applies where, by virtue of an agreement under this section, a new Agency (or any of its employees) is authorised to exercise any function of a Minister of the Crown.
(5) Subject to subsection (6) below, anything done or omitted to be done by the new Agency (or an employee of the new Agency) in, or in connection with, the exercise or purported exercise of the function shall be treated for all purposes as done or omitted to be done by that Minister in his capacity as such.
(6) Subsection (5) above shall not apply—
(a) for the purposes of so much of any agreement made between that Minister and the new Agency as relates to the exercise of the function; or
(b) for the purposes of any criminal proceedings brought in respect of anything done or omitted to be done as mentioned in that subsection.
(7) An agreement under this section shall not prevent a Minister of the Crown exercising any function to which the agreement relates.
(8) Where a Minister of the Crown has power to include, in any arrangements which he makes in relation to the performance by him of an eligible function, provision for the making of payments to him—
(a) by other parties to the arrangements, or
(b) by persons who use any facilities or services provided by him pursuant to the arrangements or in relation to whom the function is otherwise exercisable,
he may include in any such arrangements provision for the making of such payments to him or a new Agency in cases where the new Agency (or any of its employees) acts on his behalf by virtue of an agreement under this section.
(9) The power conferred on a Minister of the Crown by subsection (1) above is in addition to any other power by virtue of which functions of his may be exercised by other persons on his behalf.
(10) In this section—
“eligible function” means any function of a Minister of the Crown which the Secretary of State, having regard to the functions conferred or imposed upon the new Agency in question under or by virtue of this Act or any other enactment, considers can appropriately be exercised by that new Agency (or any of its employees) on behalf of that Minister;
“enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament;
“Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975.
39 General duty of the new Agencies Agency to have regard to costs and benefits in exercising powers.
(1) Each new The Agency—
(a) in considering whether or not to exercise any power conferred upon it by or under any enactment, or
(b) in deciding the manner in which to exercise any such power,
shall, unless and to the extent that it is unreasonable for it to do so in view of the nature or purpose of the power or in the circumstances of the particular case, take into account the likely costs and benefits of the exercise or non-exercise of the power or its exercise in the manner in question.
(2) The duty imposed upon a new the Agency by subsection (1) above does not affect its obligation, nevertheless, to discharge any duties, comply with any requirements, or pursue any objectives, imposed upon or given to it otherwise than under this section.
(1) The appropriate Minister may give a new Agency directions of a general or specific character with respect to the carrying out of any of its functions.
(2) The appropriate Minister may give a new Agency such directions of a general or specific character as he considers appropriate ...—
(a) for securing that any assimilated obligation is met, or
(b) for the implementation of any international agreement to which the United Kingdom is for the time being a party.
(3) Any direction under subsection (2) above shall be published in such manner as the Minister giving it considers appropriate for the purpose of bringing the matters to which it relates to the attention of persons likely to be affected by them; and—
(a) copies of the direction shall be made available to the public; and
(b) notice shall be given—
(i) in the case of a direction given to the Agency, in the London Gazette, or
(ii) in the case of a direction given to SEPA, in the Edinburgh Gazette,
of the giving of the direction and of where a copy of the direction may be obtained.
(4) The provisions of subsection (3) above shall have effect in relation to any direction given to a new Agency under an enactment other than subsection (2) above ...—
(a) for securing that any assimilated obligation is met, or
(b) for the implementation of any international agreement to which the United Kingdom is for the time being a party,
as those provisions have effect in relation to a direction given under subsection (2) above.
(5) In determining—
(a) any appeal against, or reference or review of, a decision of a new Agency, or
(b) any application transmitted from a new Agency,
the body or person making the determination shall be bound by any direction given under this section or any other enactment by a Minister of the Crown to the new Agency to the same extent as the new Agency.
(6) Any power to give a direction under this section shall be exercisable, except in an emergency, only after consultation with the new Agency concerned.
(7) Any power of the appropriate Minister to give directions to a new Agency otherwise than by virtue of this section shall be without prejudice to any power to give directions conferred by this section.
(8) It is the duty of a new Agency to comply with any direction which is given to that new Agency by a Minister of the Crown under this section or any other enactment.
(9) In this section, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.
(9) For the purposes of this section, the “appropriate Minister” in relation to the Agency is—
(a) in any case not falling within paragraph (b), the Secretary of State;
(b) in the case of a direction under subsection (1)—
(i) which would have any effect in Wales, or
(ii) which relates to water resources management, water supply, rivers or other watercourses, control of pollution of water resources, sewerage or land drainage, and which would have any effect in the catchment areas of the rivers Dee, Wye and Severn,
the Secretary of State or the Welsh Ministers.
(10) The Secretary of State may give a direction falling within subsection (9)(b) only after consulting the Welsh Ministers.
(11) The Welsh Ministers may give a direction under this section only with the consent of the Secretary of State.
(1) Subject to the following provisions of this section and sections 41B, 41C and 4 below—
(a) in the case of any particular licence under Chapter II of Part II of the 1991 Act (abstraction and impounding), an appropriate agency may require the payment to it of such charges as may from time to time be prescribed;
(b) in relation to other environmental licences, there shall be charged by and paid to the Agency, the Natural Resources Body for Wales or SEPA such charges as may from time to time be prescribed; ...
(ba) as a means of recovering costs incurred by it in performing functions conferred by the Reservoirs Act 1975 an appropriate agency may require the payment to it of such charges as may from time to time be prescribed;
(c) as a means of recovering costs incurred by it in performing functions conferred by regulations under section 62 of the 1990 Act (dangerous or intractable waste) each of the new Agencies may require the payment to it of such charges as may from time to time be prescribed; ...
(ca) as a means of recovering costs incurred by it in performing functions conferred by the Hazardous Waste (England and Wales) Regulations 2005, the Agency may require the payment to it of such charges as may from time to time be prescribed;
(cb) as a means of recovering costs incurred by it in performing functions conferred by the Hazardous Waste (Wales) Regulations 2005, the Natural Resources Body for Wales may require the payment to it of such charges as may from time to time be prescribed;
(cc) as a means of recovering costs incurred by it in performing functions conferred by regulations made under section 62ZA of the Environmental Protection Act 1990 (special provision with respect to hazardous waste), the Agency or the Natural Resources Body for Wales may require the payment to it of such charges as may from time to time be prescribed;
(d) as a means of recovering costs incurred by it in performing functions in connection with the regulation of the importation or exportation of waste or the transit of waste for export, the Agency, the Natural Resources Body for Wales or SEPA may require the payment to it of such charges as may from time to time be prescribed;
(da) as a means of recovering costs incurred by it in performing functions conferred by regulations made under section 34CA of the Environmental Protection Act 1990 (electronic waste tracking) the Agency, the Natural Resources Body for Wales or SEPA may require the payment to it of such charges as may from time to time be prescribed;
(e) as a means of recovering costs incurred by it in performing functions conferred by Regulation (EU) 2019/1021 of the European Parliament and of the Council on persistent organic pollutants (recast) as amended from time to time, the Agency, the Natural Resources Body for Wales or SEPA may require the payment to it of such charges as may from time to time be prescribed;
(f) as a means of recovering costs incurred by it in performing functions conferred by regulations under section 79 of the Climate Change (Scotland) Act 2009 (asp 12), SEPA may require the payment to it of such charges as may from time to time be prescribed;
(f) as a means of recovering costs incurred by it in performing functions conferred by assimilated law which implemented Council Directive 2006/117/Euratom on the supervision and control of shipments of radioactive waste and spent fuel (as it had effect immediately before IP completion day), an appropriate agency may require the payment to it of such charges as may from time to time be prescribed;
(g) as a means of recovering costs incurred by it in performing functions conferred by assimilated law which implemented Directive 2006/66/EC of the European Parliament and of the Council on batteries and accumulators and waste batteries and accumulators (as it had effect immediately before IP completion day) the Agency, the Natural Resources Body for Wales or SEPA may require the payment to it of such charges as may from time to time be prescribed;
(h) as a means of recovering costs incurred by it in performing functions conferred by regulation 8A of the Greenhouse Gas Emissions Trading Scheme (Amendment) and National Inventory Regulations 2005, the Agency may require the payment to it of such charges as may from time to time be prescribed;
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(k) as a means of recovering costs incurred by it in performing functions conferred by Regulation EU 2017/852 of the European Parliament and of the Council of 17 May 2017 on mercury, and repealing Regulation (EC) No 1102/2008, the Agency, the Natural Resources Body for Wales or SEPA may require the payment to it of such charges as may from time to time be prescribed;
(l) as a means of recovering costs incurred by it in performing functions conferred by Regulation (EC) No 1005/2009 on substances that deplete the ozone layer, the Agency, the Natural Resources Body for Wales or SEPA may require the payment to it of such charges as may from time to time be prescribed;
(m) as a means of recovering costs incurred by it in performing functions conferred by Regulation (EU) No 517/2014 on fluorinated greenhouse gases and repealing Regulation (EC) No 842/2006, the Agency, the Natural Resources Body for Wales or SEPA may require the payment to it of such charges as may from time to time be prescribed;
(n) as a means of recovering costs incurred by it in performing functions conferred by regulations made under Schedule 4 or 5 to the Environment Act 2021, the Agency, the Natural Resources Body for Wales or SEPA may require the payment to it of such charges as may from time to time be prescribed;
(o) as a means of recovering costs incurred by it in performing functions conferred by the End-of-Life Vehicles (Producer Responsibility) Regulations 2005 (S.I. 2005/263), the Agency, the Natural Resources Body for Wales or SEPA may require the payment to it of such charges as may from time to time be prescribed;
(p) as a means of recovering costs incurred by it in performing functions conferred by the Waste Electrical and Electronic Equipment Regulations 2013 (S.I. 2013/3113), the Agency, the Natural Resources Body for Wales or SEPA may require the payment to it of such charges as may from time to time be prescribed;
(q) as a means of recovering costs incurred by it in performing functions relating to section 33(1) of the Environmental Protection Act 1990, the Agency or the Natural Resources Body for Wales may require the payment to it of such charges as may from time to time be prescribed;
(r) as a means of recovering costs incurred by it in performing functions relating to regulation 12(1) of the Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154) in relation to a regulated facility which is a waste operation (within the meaning of those Regulations), the Agency or the Natural Resources Body for Wales may require the payment to it of such charges as may from time to time be prescribed;
(s) as a means of recovering costs which are incurred by it in performing functions relating to sections 45A to 45AZB of the Environmental Protection Act 1990, the Agency may require the payment to it of such charges as may from time to time be prescribed;
(t) as a means of recovering costs incurred by it in performing water industry enforcement functions, the Agency or the Natural Resources Body for Wales may require the payment to it by water companies of such charges as may from time to time be prescribed;
and in this section “prescribed” means specified in, or determined under, a scheme (in this section referred to as a “charging scheme”) made under this section by the body in question.
(1A) In paragraph (d) of subsection (1) “importation”, “exportation”, “transit of waste for export” and “waste” have the meaning they have in section 141 of the Environmental Protection Act 1990.
(1B) In paragraph (t) of subsection (1)—
“water companies” means—
water undertakers and sewerage undertakers, and
water supply licensees and sewerage licensees within the meaning of the Water Industry Act 1991;
“water industry enforcement functions” means functions performed for the purpose of assessing or securing compliance by water companies (within the above meaning), or responding to failures on their part to comply, with any provision made by—
sections 205A and 205B of the Water Industry Act 1991 (pollution incident reduction plans and implementation reports),
Chapter 2 of Part 2 of the Water Resources Act 1991 (water abstraction and impounding),
Chapter 3 of that Part (drought orders and drought permits), or
the Environmental Permitting (England and Wales) Regulations 2016 (regulation of certain facilities and activities),
but, in relation to water supply licensees and sewerage licensees, includes those functions only so far as performed in respect of the activities to which their licences relate.
(2) As respects environmental licences, charges may be prescribed in respect of—
(a) the grant or variation of an environmental licence, or any application for, or for a variation of, such a licence;
(b) the subsistence of an environmental licence;
(c) the transfer (where permitted) of an environmental licence to another person, or any application for such a transfer;
(d) the renewal (where permitted) of an environmental licence, or any application for such a renewal;
(e) the surrender (where permitted) of an environmental licence, or any application for such a surrender; or
(f) any application for the revocation (where permitted) of an environmental licence.
(g) any other approval, consent, consideration or determination carried out by the Agency relating to any assimilated obligationor any application for such an approval of consent, consideration or determination;
(h) the review of an environmental licence,
(i) the consolidation of environmental licences,
(j) an application for commercial confidentiality in respect of an environmental licence.
(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) A charging scheme may, for the purposes of subsection (2)(b) above, impose—
(a) a single charge in respect of the whole of any relevant licensed period;
(b) separate charges in respect of different parts of any such period; or
(c) both such a single charge and such separate charges;
and in this subsection “relevant licensed period” means the period during which an environmental licence is in force or such part of that period as may be prescribed.
(4) Without prejudice to subsection (7)(a) below, a charging scheme may, as respects environmental licences, provide for different charges to be payable according to—
(a) the description of environmental licence in question;
(b) the description of authorised activity in question;
(c) the scale on which the authorised activity in question is carried on;
(d) the description or amount of the substance to which the authorised activity in question relates;
(e) the number of different authorised activities carried on by the same person.
(5) A charging scheme—
(a) shall specify, in relation to any charge prescribed by the scheme, the description of person who is liable to pay the charge; and
(b) may provide that it shall be a condition of an environmental licence of any particular description that any charge prescribed by a charging scheme in relation to an environmental licence of that description is paid in accordance with the scheme.
(6) Without prejudice to subsection (5)(b) above, if it appears to the Agency, the Natural Resources Body for Wales or SEPA that any charges due and payable to it in respect of the subsistence of an environmental licence have not been paid, it may, in accordance with the appropriate procedure, suspend or revoke the environmental licence to the extent that it authorises the carrying on of an authorised activity.
(7) A charging scheme may—
(a) make different provision for different cases, including different provision in relation to different persons, circumstances or localities;
(b) provide for the times at which, and the manner in which, the charges prescribed by the scheme are to be paid;
(c) revoke or amend any previous charging scheme;
(d) contain supplemental, incidental, consequential or transitional provision for the purposes of the scheme.
(8) If and to the extent that a charging scheme relates to licences under Chapter II of Part II of the 1991 Act (abstraction and impounding), the scheme shall have effect subject to any provision made by or under sections 125 to 130 of that Act (exemption from charges, imposition of special charges for spray irrigation, and charges in respect of abstraction from waters of Canal & River Trust).
(9) A new Agency shall not make a charging scheme unless the provisions of the scheme have been approved by the Secretary of State under section 42 below.
(9A) The Natural Resources Body for Wales may not make a charging scheme unless the provisions of the scheme have been approved by the Welsh Ministers under section 42.
(10) In this section—
...
“the appropriate procedure” means such procedure as may be specified or described in regulations made for the purpose by the Secretary of State;
“authorised activity” means any activity to which an environmental licence relates.
...
...
(10A) Any power of the Secretary of State to make regulations under this section is exercisable in relation to Wales only after consultation with the Welsh Ministers.
(11) Any power to make regulations under this section shall be exercisable by statutory instrument; and a statutory instrument containing any such regulations shall be subject to annulment pursuant to a resolution of either House of Parliament.
41A Charges in respect of the EU greenhouse gas emissions trading scheme
(1) Each of the charging authorities may require the payment to it of such charges as may from time to time be prescribed—
(a) as a means of recovering costs incurred by it in performing functions conferred under or by virtue of—
(i) the Greenhouse Gas Emissions Trading Scheme Regulations 2005 (S.I. 2005/925);
(ii) the Aviation Greenhouse Gas Emissions Trading Scheme Regulations 2010 (S.I. 2010/1996);
(iii) the Greenhouse Gas Emissions Trading Scheme Regulations 2012 (S.I. 2012/3038).
(b) in respect of—
(i) an application to open an account that, under the Registries Regulation 2013, is required to be held in the Kyoto Protocol Registry;
(ii) the subsistence of such an account;
(iii) the updating of information provided to the Agency in relation to such an account;
and in this section “prescribed” means specified in, or determined under, a scheme (in this section referred to as a “charging scheme”) made under this section by the charging authority in question.
(1A) A charging scheme may—
(a) make different provision for different cases, including different provision in relation to different persons, circumstances or localities;
(b) provide for the times at which, and the manner in which, the charges prescribed by the scheme are to be paid;
(c) revoke or amend any previous charging scheme;
(d) contain supplemental, incidental, consequential or transitional provision for the purposes of the scheme.
(1B) A charging scheme must specify, in relation to any charge prescribed by the scheme, the description of person who is liable to pay the charge.
(1C) A charging authority may not make a charging scheme unless the provisions of the scheme have been approved by the Secretary of State , the Welsh Ministers or the Scottish Ministers under section 42.
(2) If the Agency—
(a) proposes to prescribe charges under subsection (1)(b) or to amend any provision for such charges included in a charging scheme, and
(b) notifies another charging authority of its proposals,
the Agency and that other charging authority shall each include in a charging scheme (subject to approval by the Secretary of State , the Welsh Ministers or the Scottish Ministers under section 42) provision giving effect to the proposals.
(3) If the Agency revises any proposals of which it has given notification under subsection (2) above, and notifies the relevant charging authority accordingly, the obligations imposed by that subsection apply in relation to the proposals as revised.
(4) A notification under subsection (2) or (3) above shall include details of the amount of the proposed charges.
(5) The Natural Resources Body for Wales and SEPA shall pass on to the Agency any charges under subsection (1)(b) that they receive.
(6) A charging scheme made by the Agency may require the payment to the Agency of such charges as may from time to time be prescribed in respect of—
(a) an application to open an account in the Kyoto Protocol Registry, other than one that under the Registries Regulation 2013 is required to be held in that registry;
(b) the subsistence of such an account;
(c) the updating of information provided to the Agency in relation to such an account.
(7) In this section—
“charging authority” means the Agency, the Natural Resources Body for Wales or SEPA;
“the Registries Regulation 2013” means Commission Regulation (EU) No 389/2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 290/2004/EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and No 1193/2011, as amended from time to time; and
“the Kyoto Protocol Registry” means the registry administered on behalf of the United Kingdom for the purposes of its obligations as a party to the Kyoto Protocol to the United Nations Framework Convention on Climate Change.
41B Charging schemes in respect of abstraction and impounding licences: joint charging schemes
(1) A charging scheme under section 41 relating to licences under Chapter II of Part II of the 1991 Act may be made by both of the appropriate agencies acting jointly (referred to in this section as a “joint charging scheme”), if that scheme prescribes charges in relation to licences granted within a combined area that—
(a) is partly in England and partly in Wales; and
(b) includes all of, or any part of, the catchment areas of the rivers Dee, Wye and Severn.
(2) A joint charging scheme must—
(a) designate the combined area to which it applies; and
(b) specify the manner in which the sums recovered by way of charges prescribed by the scheme are to be apportioned between, and paid to, each appropriate agency.
(3) Subsections (9) and (9A) of section 41 do not apply to joint charging schemes.
(4) Subject to subsection (5), the appropriate agencies may not make a joint charging scheme unless the provisions of the scheme have been approved under section 42 by the Secretary of State and the Welsh Ministers acting jointly.
(5) Section 42 applies in relation to joint charging schemes as though references in that section to—
(a) anything done by or in relation to either the Secretary of State or the Welsh Ministers were references to that thing being done by or in relation to the Secretary of State and the Welsh Ministers acting jointly;
(b) a charging authority were references to both of the appropriate agencies acting jointly.
(6) This section does not affect any power of an appropriate agency to make a charging scheme under section 41.
41C Charging schemes in respect of abstraction and impounding licences: cross-border arrangements
(1) An appropriate agency may not make or revise a relevant charging scheme unless it has—
(a) notified the other appropriate agency of its proposal; and
(b) had regard to any information provided by the other appropriate agency relating to costs or expenses—
(i) which the other appropriate agency has incurred or expects to incur, and
(ii) in respect of which the other appropriate agency considers that the relevant charging scheme should make provision.
(2) Subsection (1) does not apply to a joint charging scheme made in accordance with section 41B.
(3) An appropriate agency may not, without the consent of the other appropriate agency, enter into any agreement, or any variation of an agreement, as a result of which it will be liable to incur costs or expenses—
(a) in respect of which it would expect a relevant charging scheme made by the other appropriate agency (or by both of the appropriate agencies acting jointly) to make provision; and
(b) which would, if an existing relevant charging scheme were revised to make provision for the purpose of recovering the amount required to meet those costs or expenses in full, result in a significant increase in the charges payable under that charging scheme.
(4) Either appropriate agency may refer the question of whether consent should be given for the purposes of subsection (3) for determination by the Secretary of State and the Welsh Ministers acting jointly.
(5) The Secretary of State and the Welsh Ministers, acting jointly—
(a) may give guidance to the appropriate agencies as to the exercise of the appropriate agencies’ functions under this section;
(b) must arrange for any guidance given under this subsection to be published in such manner as they consider appropriate.
(6) The appropriate agencies must have regard to any guidance given under subsection (5).
(7) In this section, “relevant charging scheme” means a charging scheme under section 41 which relates to any extent to licences granted under Chapter II of Part II of the 1991 Act in respect of abstractions from, or impounding of, waters in the catchment areas of the rivers Dee, Wye and Severn.
(1) Before submitting a proposed charging scheme to the Secretary of State or the Welsh Ministers for approval, a charging authority shall, in such manner as it considers appropriate for bringing it to the attention of persons likely to be affected by the scheme, publish a notice—
(a) setting out its proposals; and
(b) specifying the period within which representations or objections with respect to the proposals may be made to the Secretary of State or, as the case may be, the Welsh Ministers.
(2) Where any proposed charging scheme has been submitted to the Secretary of State or the Welsh Ministers for approval, he or they shall, in determining whether or not to approve the scheme or to approve it subject to modifications,—
(a) consider any representations or objections duly made to him or them and not withdrawn; and
(b) have regard to—
(i) in the case of a charging scheme made under section 41, the matter specified in subsection (3);
(ii) in the case of a charging scheme made under section 41A, the matter specified in subsection (3A).
(3) The matter mentioned in subsection (2)(b)(i) above is the desirability of ensuring that, in the case of each of the descriptions of environmental licence specified in the paragraphs of the definition of that expression in section 56 below, the amounts recovered by the charging authority in question by way of charges prescribed by charging schemes are the amounts which, taking one year with another, need to be recovered by that charging authority to meet such of the costs and expenses (whether of a revenue or capital nature)—
(a) which it incurs in carrying out its functions,
(b) in the case of environmental licences which are authorisations for radioactive substances activities under the Environmental Authorisations (Scotland) Regulations 2018—
(i) which the Food Standards Agency incurs in carrying out its functions under or in consequence of those Regulations, and
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
which the Food Standards Agency incurs in carrying out its functions in relation to environmental permits under the Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154) concerning the disposal of radioactive waste within the meaning of those Regulations.
(c) in the case of licences granted by the Agency under Chapter II of Part II of the 1991 Act (abstraction and impounding), which the Natural Resources Body for Wales incurs in carrying out its functions under Part II of that Act or section 6(2A) above in the catchment areas of the rivers Dee, Wye and Severn for purposes connected with abstractions from, or impounding of, waters in England,
(d) in the case of licences granted by the Natural Resources Body for Wales under Chapter II of Part II of the 1991 Act (abstraction and impounding), which the Agency incurs in carrying out its functions under Part II of that Act or section 6(2) above in the catchment areas of the rivers Dee, Wye and Severn for purposes connected with abstractions from, or impounding of, waters in Wales,
as the Secretary of State or, as the case may be, the Welsh Ministers may consider it appropriate to attribute to the carrying out of those functions in relation to activities to which environmental licences of the description in question relate.
(3A) The matter mentioned in subsection (2)(b)(ii) above is the desirability of ensuring that the amounts recovered by the charging authority in question by way of charges prescribed by charging schemes are the amounts which, taking one year with another, need to be recovered by that charging authority to meet such of the costs and expenses (whether of a revenue or capital nature) which it incurs in carrying out its functions in relation to the matters described in section 41A(1) as the Secretary of State or, as the case may be, the Welsh Ministers may consider it appropriate to attribute to the carrying out of those functions.
(4) Without prejudice to the generality of the expression “costs and expenses”, in determining for the purposes of subsection (3) or (3A) above the amounts of the costs and expenses which the Secretary of State considers or which the Welsh Ministers consider it appropriate to attribute to the carrying out of a charging authority's or the Food Standard Agency’s functions ..., the Secretary of State or the Welsh Ministers—
(a) shall take into account any determination of the charging authority's financial duties under section 44 below or (in the case of the Natural Resources Body for Wales) under article 13 of the Natural Resources Body for Wales (Establishment) Order 2012 (S.I.2012/1903); and
(b) may include amounts in respect of the depreciation of, and the provision of a return on, such assets as are held by the charging authority, or the Food Standards Agency, for purposes connected with the carrying out of the functions in question.
(5) If and to the extent that a charging scheme relates to any licence under Chapter II of Part II of the 1991 Act (abstraction and impounding), the Secretary of State or the Welsh Ministers (as the case may be) may consider it appropriate to attribute to the carrying out of an appropriate agency's functions in relation to activities to which such a licence relates any costs and expenses incurred by the appropriate agency in carrying out any of its functions under Part II of that Act or under section 6(2) or (2A) above.
(6) Subsection (5) above is without prejudice to what costs and expenses the Secretary of State or the Welsh Ministers may consider it appropriate to attribute to the carrying out of any functions of a charging authority, the Minister or the Secretary of State in relation to activities to which environmental licences of any particular description relate.
(7) The consent of the Treasury shall be required for the giving of approval to a charging scheme submitted by the Agency or by both of the appropriate agencies acting jointly . . ..
(8) It shall be the duty of a charging authority to take such steps as it considers appropriate for bringing the provisions of any charging scheme made by it which is for the time being in force to the attention of persons likely to be affected by them.
(9) If and to the extent that any sums recovered by a charging authority by way of charges prescribed by charging schemes may fairly be regarded as so recovered for the purpose of recovering the amount required to meet (whether in whole or in part)—such of the costs and expenses incurred by the Food Standards Agency as fall within subsection (3) above those sums shall be paid by that charging authority to the Food Standards Agency.
(9A) The Agency must pay to the Natural Resources Body for Wales any sums which the Agency recovers under a charging scheme made under section 41 (other than a joint charging scheme made in accordance with section 41B) that may fairly be regarded as recovered for the purpose of meeting (in whole or in part) any costs and expenses incurred, or deemed to have been incurred, by the Body in carrying out its functions under Part II of the 1991 Act or section 6(2A) above.
(9B) The Natural Resources Body for Wales must pay to the Agency any sums which the Body recovers under a charging scheme made under section 41 (other than a joint charging scheme made in accordance with section 41B) that may fairly be regarded as recovered for the purpose of meeting (in whole or in part) any costs and expenses incurred by the Agency in carrying out its functions under Part II of the 1991 Act or section 6(2) above, other than costs and expenses that are deemed to have been incurred by the Body.
(9C) Any sums recovered by an appropriate agency by way of charges prescribed by a joint charging scheme made in accordance with section 41B must be apportioned between, and paid to, each appropriate agency in the manner specified by the scheme pursuant to section 41B(2)(b).
(9D) For the purposes of subsections (9A) and (9B), costs or expenses are deemed to have been incurred by the Natural Resources Body for Wales if the liability for those costs or expenses was transferred from the Agency to the Body on 1st April 2013—
(a) by a transfer scheme made by the Welsh Ministers under section 23 of the Public Bodies Act 2011; or
(b) by virtue of article 10 of, and paragraph 2 of Schedule 7 to, the Natural Resources Body for Wales (Functions) Order 2013.
(10) For the purposes of subsection (9) above, any question as to the extent to which any sums may fairly be regarded as recovered for the purpose of recovering the amount required to meet the costs and expenses falling within that subsection shall be determined by the Secretary of State.
(10A) Any dispute as to the apportionment or payment of sums under subsection (9A), (9B) or (9C) shall be determined by the Secretary of State and the Welsh Ministers acting jointly.
(11) In this section “charging scheme” means a scheme made under section 41 or 41A and “charging authority” means the body that makes or proposes to make a charging scheme.
(12) In the application of this section to Scotland, the references to the Food Standards Agency are to be read as references to Food Standards Scotland.
43 Incidental power of the new Agencies to impose charges.
(1) Without prejudice to the generality of its powers by virtue of section 37(1)(a) above and subject to any such express provision with respect to charging by a new Agency as is contained in the preceding provisions of this Chapter or any other enactment, each new Agency shall have power to fix and recover charges for services and facilities provided in the course of carrying out its functions.
(2) In subsection (1) above, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.
(1) The appropriate Ministers may—
(a) after consultation with a new Agency, and
(b) in the case of the Agency only with the approval of the Treasury,
determine the financial duties of that new Agency; and different determinations may be made for different functions and activities of the new Agency.
(2) The appropriate Ministers shall give a new Agency notice of every determination of its financial duties under this section, and such a determination may—
(a) relate to a period beginning before, on, or after, the date on which it is made;
(b) contain supplemental provisions; and
(c) be varied by a subsequent determination.
(3) The appropriate Minister may, after consultation with . . . a new Agency, and, in the case of the Agency only, after consultation with Treasury, give a direction to that new Agency requiring it to pay to him an amount equal to the whole or such part as may be specified in the direction of any sum, or any sum of a description, so specified which is or has been received by that new Agency.
(4) Where it appears to the appropriate Minister that a new Agency has a surplus, whether on capital or revenue account, he may, after consultation with the Treasury (in the case of the Agency only) and the new Agency, direct the new Agency to pay to him such amount not exceeding the amount of that surplus as may be specified in the direction.
(5) In the case of the Agency—
(a) subsection (1) above is subject to section 118 of the 1991 Act (special duties with respect to flood defence revenue);
(b) subsection (3) above is subject to sections 118(1)(a) and 119(1) of the 1991 Act (special duties with respect to flood defence revenue and funds raised for fishery purposes under local enactments); and
(c) subsection (4) above is subject to sections 118(1)(b) and 119(2) of the 1991 Act (which provide for flood defence revenue and certain funds raised under local enactments to be disregarded in determining whether there is a surplus).
(1) Each new Agency shall—
(a) keep proper accounts and proper accounting records; and
(b) prepare in respect of each accounting year a statement of accounts giving a true and fair view of the state of affairs and the income and expenditure of the new Agency.
(2) Every statement of accounts prepared by a new Agency in accordance with this section shall comply with any requirement which the appropriate Ministers have in the case of the Agency only, with the consent of the Treasury, notified in writing to the new Agency and which relates to any of the following matters, namely—
(a) the information to be contained in the statement;
(b) the manner in which that information is to be presented;
(c) the methods and principles according to which the statement is to be prepared.
(3) In this section—
“accounting records”, in the case of a new Agency, includes all books, papers and other records of the new Agency relating to, or to matters dealt with in, the accounts required to be kept by virtue of this section;
“accounting year”, subject to subsection (4) below, means, in relation to a new Agency, a financial year.
(4) If the Secretary of State so directs in relation to any accounting year of either new Agency, that accounting year shall end with such date other than the next 31st March as may be specified in the direction; and, where the Secretary of State has given such a direction, the following accounting year shall begin with the day after the date so specified and, subject to any further direction under this subsection, shall end with the next 31st March.
(1) The accounts of each new Agency, with the exception of those accounts of the Agency that relate to a financial year ending on or after 31st March 2004, shall be audited by an auditor appointed for each accounting year by the Secretary of State.
(2) A person shall not be qualified for appointment under subsection (1) above unless—
(a) he is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006 ; and
(b) if the appointment were an appointment as a statutory auditor, he would not be prohibited from acting by virtue of section 1214 of that Act (independence requirement).
(3) A copy of—
(a) any accounts of a new Agency which are audited under subsection (1) above, and
(b) the report made on those accounts by the auditor,
shall be sent to each of the appropriate Ministers as soon as reasonably practicable after the report is received by the new Agency; and the Secretary of State shall lay before each House of Parliament a copy of those accounts and that report.
(3A) The Agency shall send a copy of its accounts in respect of each financial year ending on or after 31st March 2004 to the Comptroller and Auditor General as soon as reasonably practicable after the end of the financial year to which the accounts relate.
(3B) The Comptroller and Auditor General shall examine, certify and report on any accounts sent to him by the Agency under subsection (3A) and shall lay before each House of Parliament a copy of those accounts and his report on them.
(4) The Comptroller and Auditor General—
(a) shall be entitled to inspect the contents of all accounts and accounting records of a new Agency; and
(b) may report to the House of Commons the results of any inspection carried out by him under paragraph (a) above;
and section 6 of the National Audit Act 1983 (examinations of economy, efficiency and effectiveness) accordingly applies to each new Agency.
(5) In this section—
“ accounting records ” has the same meaning as in section 45 above;
“ accounting year ” has the same meaning as in section 45 above;
“ accounts ”, in relation to the Agency, includes any statement under section 45 above.
(1) SEPA shall send the statement of accounts for each accounting year to the Scottish Ministers by such time as they may direct.
(2) The Scottish Ministers shall send the statement of accounts to the Auditor General for Scotland for auditing.
(3) In this section, “accounting year” has the same meaning as in section 45 above.
The appropriate Minister may, in the case of the Agency only with the approval of the Treasury, make to a new Agency grants of such amounts, and on such terms, as he thinks fit.
(1) Each new Agency shall be entitled to borrow in accordance with the following provisions of this section, but not otherwise.
(2) Subject to subsection (5) below, each new Agency may—
(a) with the consent of the appropriate Minister, and
(b) in the case of the Agency only with the approval of the Treasury,
borrow temporarily in sterling, by way of overdraft or otherwise, from persons other than the appropriate Ministers, such sums as it may require for meeting its obligations and carrying out its functions.
(3) Subject to subsection (5) below, each new Agency may borrow from the appropriate Minister, by way of temporary loan or otherwise, such sums in sterling as it may require for meeting its obligations and carrying out its functions.
(4) Any consent under subsection (2)(a) above may be granted subject to conditions.
(5) The aggregate amount outstanding in respect of the principal of sums borrowed under this section by a new Agency shall not at any time exceed—
(a) in the case of the Agency, £100 million or such greater sum, not exceeding £160 million, as the Ministers may by order specify; or
(b) in the case of SEPA, £5 million or such greater sum, not exceeding £10 million, as the Secretary of State may by order specify.
(6) The power to make an order under subsection (5) above shall be exercisable by statutory instrument; but no order shall be made under that subsection unless a draft of the order has been laid before, and approved by a resolution of, the House of Commons.
(1) The appropriate Minister may, in the case of the Agency only,with the approval of the Treasury, lend to a new Agency any sums which it has power to borrow under section 48(3) above.
(2) Any loan made under this section by one of the appropriate Ministers shall be repaid to him at such times and by such methods, and interest on the loan shall be paid to him at such rates and at such times, as that Minister may with the approval of the Treasury from time to time determine.
(3) If in any financial year any of the appropriate Ministers lends any sums to a new Agency under this section, he shall—
(a) prepare in respect of that financial year an account of the sums so lent by him; and
(b) send that account to the Comptroller and Auditor General before the end of September in the following financial year;
and the form of the account and the manner of preparing it shall be such as the Treasury may direct.
(4) The Comptroller and Auditor General shall examine, certify and report on each account sent to him under this section and shall lay copies of it and of his report before each House of Parliament.
(5) The Treasury may issue to any of the appropriate Ministers—
(a) out of the National Loans Fund, or
(b) out of money provided by Parliament,
such sums as are necessary to enable him to make loans to a new Agency under this section; and any sums received by a Minister of the Crown in pursuance of subsection (2) above shall be paid into the National Loans Fund or, as the case may be, the Consolidated Fund.
50 Government guarantees of a new Agency’s borrowing.
(1) The appropriate Minister may, in the case of the Agency only with the consent of the Treasury, guarantee, in such manner and on such conditions as he may think fit, the repayment of the principal of, the payment of interest on, and the discharge of any other financial obligation in connection with, any sum which a new Agency borrows from any person.
(2) A Minister who gives a guarantee under this section shall forthwith lay a statement of the guarantee before each House of Parliament.
(3) Where any sum is paid out for fulfilling a guarantee under this section, the Minister who gave the guarantee shall, as soon as reasonably practicable after the end of each financial year (beginning with that in which the sum is paid out and ending with that in which all liability in respect of the principal of the sum and in respect of interest on it is finally discharged), lay before each House of Parliament a statement relating to that sum.
(4) If any sums are paid out in fulfilment of a guarantee under this section, the new Agency which borrowed the sum by reference to which the guarantee was given shall make to the Minister who gave the guarantee, at such times and in such manner as he may from time to time direct,—
(a) payments of such amounts as he may so direct in or towards repayment of the sums so paid out; and
(b) payments of interest, at such rate as he may so direct, on what is outstanding for the time being in respect of sums so paid out;
and the consent of the Treasury shall be required for the giving of a direction under this subsection in the case of the Agency only.
(1) A new Agency shall furnish the appropriate Minister with all such information as he may reasonably require relating to—
(a) the new Agency’s property;
(b) the carrying out and proposed carrying out of its functions; and
(c) its responsibilities generally.
(1A) Nothing in this section authorises the disclosure by SEPA of protected taxpayer information which was obtained by SEPA in connection with a function of Revenue Scotland delegated to it by Revenue Scotland under section 4(1)(b) of the Revenue Scotland and Tax Powers Act 2014 (asp 16).
(2) Information required under this section shall be furnished in such form and manner, and be accompanied or supplemented by such explanations, as the appropriate Minister may reasonably require.
(3) The information which a new Agency may be required to furnish to the appropriate Minister under this section shall include information which, although it is not in the possession of the new Agency or would not otherwise come into the possession of the new Agency, is information which it is reasonable to require the new Agency to obtain.
(4) A requirement for the purposes of this section shall be contained in a direction which—
(a) may describe the information to be furnished in such manner as the Minister giving the direction considers appropriate; and
(b) may require the information to be furnished on a particular occasion, in particular circumstances or from time to time.
(5) For the purposes of this section a new Agency shall—
(a) permit any person authorised for the purpose by the appropriate Minister to inspect and make copies of the contents of any accounts or other records of the new Agency; and
(b) give such explanation of them as that person or the appropriate Minister may reasonably require.
(6) In subsection (1A), “protected taxpayer information” has the meaning given by section 14 of the Revenue Scotland and Tax Powers Act 2014 (asp 16).
(1) As soon as reasonably practicable after the end of each financial year, each new Agency shall prepare a report on its activities during that year and shall send a copy of that report to each of the appropriate Ministers.
(2) Every such report shall set out any directions under section 40 above which have been given to the new Agency in question during the year to which the report relates, other than directions given under subsection (1) of that section which are identified to that new Agency in writing by the appropriate Minister as being directions the disclosure of which would, in his opinion, be contrary to the interests of national security.
(3) The Secretary of State shall lay a copy of every such report before each House of Parliament and shall arrange for copies of every such report to be published in such manner as he considers appropriate.
(4) A new Agency’s annual report shall be in such form and contain such information as may be specified in any direction given to the new Agency by the appropriate Ministers.
(1) Without prejudice to any other provision of this Act or any other enactment by virtue of which an inquiry or other hearing is authorised or required to be held, the appropriate Minister may cause an inquiry or other hearing to be held if it appears to him expedient to do so—
(a) in connection with any of the functions of a new Agency; or
(b) in connection with any of his functions in relation to a new Agency.
(1A) Without prejudice to any other provision of this Act or any other enactment by virtue of which an inquiry or other hearing is authorised or required to be held, the Welsh Ministers may cause an inquiry or other hearing to be held if it appears to them expedient to do so—
(a) in connection with any of the relevant environmental functions of the Natural Resources Body for Wales; or
(b) in connection with any of their functions in relation to the relevant environmental functions of that Body.
(2) Subsections (2) to (5) of section 250 of the Local Government Act 1972 (which contain supplementary provisions with respect to local inquiries held in pursuance of that section) shall apply to inquiries or other hearings under this section or any other enactment—
(a) in connection with any of the functions of the Agency or any of the relevant environmental functions of the Natural Resources Body for Wales, or
(b) in connection with any functions of the Secretary of State or the Minister in relation to the Agency or any functions of the Welsh Ministers in relation to the relevant environmental functions of the Natural Resources Body for Wales,
as they apply to inquiries under that section, but taking the reference in subsection (4) of that section to a local authority as including a reference to the Agency or, as the case may be, the Natural Resources Body for Wales.
(3) The provisions of subsections (2) to (8) of section 210 of the Local Government (Scotland) Act 1973 (which relate to the holding of local inquiries) shall apply to inquiries or other hearings held under this section or any other enactment—
(a) in connection with any of the functions of SEPA, or
(b) in connection with any functions of the Secretary of State in relation to SEPA,
as they apply to inquiries held under that section.
(4) In subsections (1) and (3) above, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.
(4) In this section, “relevant environmental functions” means—
(a) pollution control functions (within the meaning of section 5); and
(b) any functions relating to water resources, flood and coastal erosion risk management or fisheries.
In England and Wales, a person who is authorised by the Agency to prosecute on its behalf in proceedings before a magistrates’ court shall be entitled to prosecute in any such proceedings ....
55 Continuity of exercise of functions: the new Agencies.
(1) The abolition of—
(a) the National Rivers Authority,
(b) the London Waste Regulation Authority, or
(c) a river purification board,
shall not affect the validity of anything done by that Authority or board before the transfer date.
(2) Anything which, at the transfer date, is in the process of being done by or in relation to a transferor in the exercise of, or in connection with, any of the transferred functions may be continued by or in relation to the transferee.
(3) Anything done by or in relation to a transferor before the transfer date in the exercise of, or otherwise in connection with, any of the transferred functions, shall, so far as is required for continuing its effect on and after that date, have effect as if done by or in relation to the transferee.
(4) Subsection (3) above applies in particular to—
(a) any decision, determination, declaration, designation, agreement or instrument made by a transferor;
(b) any regulations or byelaws made by a transferor;
(c) any licence, permission, consent, approval, authorisation, exemption, dispensation or relaxation granted by or to a transferor;
(d) any notice, direction or certificate given by or to a transferor;
(e) any application, request, proposal or objection made by or to a transferor;
(f) any condition or requirement imposed by or on a transferor;
(g) any fee or charge paid by or to a transferor;
(h) any appeal allowed by or in favour of or against a transferor;
(j) any proceedings instituted by or against a transferor.
(5) Any reference in the foregoing provisions of this section to anything done by or in relation to a transferor includes a reference to anything which, by virtue of any enactment, is treated as having been done by or in relation to that transferor.
(6) Any reference to a transferor in any document constituting or relating to anything to which the foregoing provisions of this section apply shall, so far as is required for giving effect to those provisions, be construed as a reference to the transferee.
(7) The foregoing provisions of this section—
(a) are without prejudice to any provision made by this Act in relation to any particular functions; and
(b) shall not be construed as continuing in force any contract of employment made by a transferor;
and the Secretary of State may, in relation to any particular functions, by order exclude, modify or supplement any of the foregoing provisions of this section or make such other transitional provisions as he thinks necessary or expedient.
(8) Where, by virtue of any provision of Schedule 15 to this Act, the Minister is the transferor in the case of any functions, he shall have the same powers under subsection (7) above in relation to those functions as the Secretary of State.
(9) The power to make an order under subsection (7) above shall be exercisable by statutory instrument; and any statutory instrument containing such an order shall be subject to annulment pursuant to a resolution of either House of Parliament.
(10) In this section—
“the transferee”, in the case of any transferred functions, means the new Agency whose functions they become by virtue of any provision made by or under this Act;
“transferred functions” means any functions which, by virtue of any provision made by or under this Act, become functions of a new Agency; and
“transferor” means any body or person any or all of whose functions become, by virtue of any provision made by or under this Act, functions of a new Agency.
(1) In this Part of this Act, except where the context otherwise requires—
...
“the 1990 Act” means the Environmental Protection Act 1990;
“the 1991 Act” means the Water Resources Act 1991;
“appropriate agency” means the Agency or the Natural Resources Body for Wales;
“the appropriate Minister”—
in the case of the Agency, means the Secretary of State or the Minister; and
in the case of SEPA, means the Secretary of State;
“the appropriate Ministers”—
in the case of the Agency, means the Secretary of State and the Minister; and
in the case of SEPA, means the Secretary of State;
“the appropriate national authority” means—
in relation to the Agency, the Secretary of State;
in relation to the Natural Resources Body for Wales, the Welsh Ministers;
“the catchment areas of the rivers Dee, Wye and Severn” has the meaning given by article 1(3) of the National Assembly for Wales (Transfer of Functions) Order 1999;
“conservancy authority” has the meaning given by section 221(1) of the 1991 Act;
“costs” includes—
costs to any person; and
costs to the environment;
“disposal authority”—
in the application of this Part in relation to the Agency, has the same meaning as it has in Part I of the Control of Pollution Act 1974 by virtue of section 30(1) of that Act; and
in the application of this Part in relation to SEPA, has the meaning assigned to it by section 30(2) of that Act;
“the environment” means all, or any, of the following media, namely, the air, water and land (and the medium of air includes the air within buildings and the air within other natural or man-made structures above or below ground);
“environmental licence”, in the application of this Part in relation to an appropriate agency, means any of the following—
registration of a person as a carrier of controlled waste under section 2 of the Control of Pollution (Amendment) Act 1989,
a permit granted by the appropriate agency under—
regulations made under section 2 of the Pollution Prevention and Control Act 1999, other than the Greenhouse Gas Emissions Trading Scheme Regulations 2005 (S.I. 2005/925) and the Greenhouse Gas Emissions Trading Scheme Regulations 2012 (S.I. 2012/3038),
regulations made under section 61 of the Water Act 2014.
an authorisation under Part I of the 1990 Act, other than any such authorisation granted by a local enforcing authority,
...
a licence under Chapter II of Part II of the 1991 Act,
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...
registration of a person as a broker of or dealer in controlled waste under assimilated law which, in England and Wales, implemented Article 26(b) of Directive 2008/98/EC of the European Parliament and of the Council on waste, as last amended by Directive (EU) 2018/851,
registration under Schedule 2 to the Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154) of an establishment or undertaking in relation to a waste operation (within the meaning of those Regulations),
...
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...
...
...
so far as having effect in relation to England and Wales;
“environmental licence”, in the application of this Part in relation to SEPA, means any of the following—
...
...
an authorisation under regulations under section 18 of the Regulatory Reform (Scotland) Act 2014,
...
an authorisation under Part I of the 1990 Act,
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...
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so far as having effect in relation to Scotland;
...
“flood defence functions”, in relation to an appropriate agency, has the same meaning as in the 1991 Act;
“harbour authority” has the meaning given by section 221(1) of the 1991 Act;
“local authority”, in the application of this Part in relation to SEPA, means a district or islands council in Scotland;
“the Minister” means the Minister of Agriculture, Fisheries and Food;
“the Ministers” means the Secretary of State and the Minister;
“navigation authority” has the meaning given by section 221(1) of the 1991 Act;
“new Agency” means the Agency or SEPA;
“river purification authority” means a river purification authority within the meaning of the 1951 Act;
“river purification board” means a river purification board established by virtue of section 135 of the Local Government (Scotland) Act 1973;
“the transfer date” means such date as the Secretary of State may by order made by statutory instrument appoint as the transfer date for the purposes of this Part; and different dates may be appointed for the purposes of this Part—
as it applies for or in connection with transfers under or by virtue of Chapter I above, and
as it applies for or in connection with transfers under or by virtue of Chapter II above;
“waste regulation authority”—
in the application of this Part in relation to the Agency, means any authority in England or Wales which, by virtue of section 30(1) of the 1990 Act, is a waste regulation authority for the purposes of Part II of that Act; and
in the application of this Part in relation to SEPA, means any council which, by virtue of section 30(1)(g) of the 1990 Act, is a waste regulation authority for the purposes of Part II of that Act.
(2) In relation to any time on or after 1st April 1996—
(a) subsection (1) above shall have effect as if, in the definition of “local authority”, for the words “district or islands council in Scotland” there were substituted the words “council constituted under section 2 of the Local Government etc. (Scotland) Act 1994”; and
(b) in section 22(3)(a)(iv) above the reference to an islands council shall be construed as a reference to a council mentioned in section 3(1) of the Local Government etc. (Scotland) Act 1994.
(3) Where by virtue of any provision of this Part any function of a Minister of the Crown is exercisable concurrently by different Ministers, that function shall also be exercisable jointly by any two or more of those Ministers.
After section 78 of the Environmental Protection Act 1990 there shall be inserted—
Part IIA Contaminated Land
Preliminary.
78A (1) The following provisions have effect for the interpretation of this Part.
(2) “Contaminated land” is any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that—
(a) significant harm is being caused or there is a significant possibility of such harm being caused; or
(b) pollution of controlled waters is being, or is likely to be, caused;
and, in determining whether any land appears to be such land, a local authority shall, subject to subsection (5) below, act in accordance with guidance issued by the Secretary of State in accordance with section 78YA below with respect to the manner in which that determination is to be made.
(3) A “special site” is any contaminated land—
(a) which has been designated as such a site by virtue of section 78C(7) or 78D(6) below; and
(b) whose designation as such has not been terminated by the appropriate Agency under section 78Q(4) below.
(4) “Harm” means harm to the health of living organisms or other interference with the ecological systems of which they form part and, in the case of man, includes harm to his property.
(5) The questions—
(a) what harm is to be regarded as “significant”,
(b) whether the possibility of significant harm being caused is “significant”,
(c) whether pollution of controlled waters is being, or is likely to be caused,
shall be determined in accordance with guidance issued for the purpose by the Secretary of State in accordance with section 78YA below.
(6) Without prejudice to the guidance that may be issued under subsection (5) above, guidance under paragraph (a) of that subsection may make provision for different degrees of importance to be assigned to, or for the disregard of,—
(a) different descriptions of living organisms or ecological systems;
(b) different descriptions of places; or
(c) different descriptions of harm to health or property, or other interference;
and guidance under paragraph (b) of that subsection may make provision for different degrees of possibility to be regarded as “significant” (or as not being “significant”) in relation to different descriptions of significant harm.
(7) “Remediation” means—
(a) the doing of anything for the purpose of assessing the condition of—
(i) the contaminated land in question;
(ii) any controlled waters affected by that land; or
(iii) any land adjoining or adjacent to that land;
(b) the doing of any works, the carrying out of any operations or the taking of any steps in relation to any such land or waters for the purpose—
(i) of preventing or minimising, or remedying or mitigating the effects of, any significant harm, or any pollution of controlled waters, by reason of which the contaminated land is such land; or
(ii) of restoring the land or waters to their former state; or
(c) the making of subsequent inspections from time to time for the purpose of keeping under review the condition of the land or waters;
and cognate expressions shall be construed accordingly.
(8) Controlled waters are “affected by” contaminated land if (and only if) it appears to the enforcing authority that the contaminated land in question is, for the purposes of subsection (2) above, in such a condition, by reason of substances in, on or under the land, that pollution of those waters is being, or is likely to be caused.
(9) The following expressions have the meaning respectively assigned to them—
“the appropriate Agency” means—
in relation to England and Wales, the Environment Agency;
in relation to Scotland, the Scottish Environment Protection Agency;
“appropriate person” means any person who is an appropriate person, determined in accordance with section 78F below, to bear responsibility for any thing which is to be done by way of remediation in any particular case;
“charging notice” has the meaning given by section 78P(3)(b) below;
“controlled waters”—
in relation to England and Wales, has the same meaning as in Part III of the Water Resources Act 1991; and
in relation to Scotland, has the same meaning as in section 30A of the Control of Pollution Act 1974;
“creditor” has the same meaning as in the Conveyancing and Feudal Reform (Scotland) Act 1970;
“enforcing authority” means—
in relation to a special site, the appropriate Agency;
in relation to contaminated land other than a special site, the local authority in whose area the land is situated;
“heritable security” has the same meaning as in the Conveyancing and Feudal Reform (Scotland) Act 1970;
“local authority” in relation to England and Wales means—
any unitary authority;
any district council, so far as it is not a unitary authority;
the Common Council of the City of London and, as respects the Temples, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple respectively;
and in relation to Scotland means a council for an area constituted under section 2 of the Local Government etc. (Scotland) Act 1994;
“notice” means notice in writing;
“notification” means notification in writing;
“owner”, in relation to any land in England and Wales, means a person (other than a mortgagee not in possession) who, whether in his own right or as trustee for any other person, is entitled to receive the rack rent of the land, or, where the land is not let at a rack rent, would be so entitled if it were so let;
“owner”, in relation to any land in Scotland, means a person (other than a creditor in a heritable security not in possession of the security subjects) for the time being entitled to receive or who would, if the land were let, be entitled to receive, the rents of the land in connection with which the word is used and includes a trustee, factor, guardian or curator and in the case of public or municipal land includes the persons to whom the management of the land is entrusted;
“pollution of controlled waters” means the entry into controlled waters of any poisonous, noxious or polluting matter or any solid waste matter;
“prescribed” means prescribed by regulations;
“regulations” means regulations made by the Secretary of State;
“remediation declaration” has the meaning given by section 78H(6) below;
“remediation notice” has the meaning given by section 78E(1) below;
“remediation statement” has the meaning given by section 78H(7) below;
“required to be designated as a special site” shall be construed in accordance with section 78C(8) below;
“substance” means any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour;
“unitary authority” means—
the council of a county, so far as it is the council of an area for which there are no district councils;
the council of any district comprised in an area for which there is no county council;
the council of a London borough;
the council of a county borough in Wales.
Identification of contaminated land.
78B (1) Every local authority shall cause its area to be inspected from time to time for the purpose—
(a) of identifying contaminated land; and
(b) of enabling the authority to decide whether any such land is land which is required to be designated as a special site.
(2) In performing its functions under subsection (1) above a local authority shall act in accordance with any guidance issued for the purpose by the Secretary of State in accordance with section 78YA below.
(3) If a local authority identifies any contaminated land in its area, it shall give notice of that fact to—
(a) the appropriate Agency;
(b) the owner of the land;
(c) any person who appears to the authority to be in occupation of the whole or any part of the land; and
(d) each person who appears to the authority to be an appropriate person;
and any notice given under this subsection shall state by virtue of which of paragraphs (a) to (d) above it is given.
(4) If, at any time after a local authority has given any person a notice pursuant to subsection (3)(d) above in respect of any land, it appears to the enforcing authority that another person is an appropriate person, the enforcing authority shall give notice to that other person—
(a) of the fact that the local authority has identified the land in question as contaminated land; and
(b) that he appears to the enforcing authority to be an appropriate person.
Identification and designation of special sites.
78C (1) If at any time it appears to a local authority that any contaminated land in its area might be land which is required to be designated as a special site, the authority—
(a) shall decide whether or not the land is land which is required to be so designated; and
(b) if the authority decides that the land is land which is required to be so designated, shall give notice of that decision to the relevant persons.
(2) For the purposes of this section, “the relevant persons” at any time in the case of any land are the persons who at that time fall within paragraphs (a) to (d) below, that is to say—
(a) the appropriate Agency;
(b) the owner of the land;
(c) any person who appears to the local authority concerned to be in occupation of the whole or any part of the land; and
(d) each person who appears to that authority to be an appropriate person.
(3) Before making a decision under paragraph (a) of subsection (1) above in any particular case, a local authority shall request the advice of the appropriate Agency, and in making its decision shall have regard to any advice given by that Agency in response to the request.
(4) If at any time the appropriate Agency considers that any contaminated land is land which is required to be designated as a special site, that Agency may give notice of that fact to the local authority in whose area the land is situated.
(5) Where notice under subsection (4) above is given to a local authority, the authority shall decide whether the land in question—
(a) is land which is required to be designated as a special site, or
(b) is not land which is required to be so designated,
and shall give notice of that decision to the relevant persons.
(6) Where a local authority makes a decision falling within subsection (1)(b) or (5)(a) above, the decision shall, subject to section 78D below, take effect on the day after whichever of the following events first occurs, that is to say—
(a) the expiration of the period of twenty-one days beginning with the day on which the notice required by virtue of subsection (1)(b) or, as the case may be, (5)(a) above is given to the appropriate Agency; or
(b) if the appropriate Agency gives notification to the local authority in question that it agrees with the decision, the giving of that notification;
and where a decision takes effect by virtue of this subsection, the local authority shall give notice of that fact to the relevant persons.
(7) Where a decision that any land is land which is required to be designated as a special site takes effect in accordance with subsection (6) above, the notice given under subsection (1)(b) or, as the case may be, (5)(a) above shall have effect, as from the time when the decision takes effect, as the designation of that land as such a site.
(8) For the purposes of this Part, land is required to be designated as a special site if, and only if, it is land of a description prescribed for the purposes of this subsection.
(9) Regulations under subsection (8) above may make different provision for different cases or circumstances or different areas or localities and may, in particular, describe land by reference to the area or locality in which it is situated.
(10) Without prejudice to the generality of his power to prescribe any description of land for the purposes of subsection (8) above, the Secretary of State, in deciding whether to prescribe a particular description of contaminated land for those purposes, may, in particular, have regard to—
(a) whether land of the description in question appears to him to be land which is likely to be in such a condition, by reason of substances in, on or under the land that—
(i) serious harm would or might be caused, or
(ii) serious pollution of controlled waters would be, or would be likely to be, caused; or
(b) whether the appropriate Agency is likely to have expertise in dealing with the kind of significant harm, or pollution of controlled waters, by reason of which land of the description in question is contaminated land.
Referral of special site decisions to the Secretary of State.
78D (1) In any case where—
(a) a local authority gives notice of a decision to the appropriate Agency pursuant to subsection (1)(b) or (5)(b) of section 78C above, but
(b) before the expiration of the period of twenty-one days beginning with the day on which that notice is so given, that Agency gives the local authority notice that it disagrees with the decision, together with a statement of its reasons for disagreeing,
the authority shall refer the decision to the Secretary of State and shall send to him a statement of its reasons for reaching the decision.
(2) Where the appropriate Agency gives notice to a local authority under paragraph (b) of subsection (1) above, it shall also send to the Secretary of State a copy of the notice and of the statement given under that paragraph.
(3) Where a local authority refers a decision to the Secretary of State under subsection (1) above, it shall give notice of that fact to the relevant persons.
(4) Where a decision of a local authority is referred to the Secretary of State under subsection (1) above, he—
(a) may confirm or reverse the decision with respect to the whole or any part of the land to which it relates; and
(b) shall give notice of his decision on the referral—
(i) to the relevant persons; and
(ii) to the local authority.
(5) Where a decision of a local authority is referred to the Secretary of State under subsection (1) above, the decision shall not take effect until the day after that on which the Secretary of State gives the notice required by subsection (4) above to the persons there mentioned and shall then take effect as confirmed or reversed by him.
(6) Where a decision which takes effect in accordance with subsection (5) above is to the effect that at least some land is land which is required to be designated as a special site, the notice given under subsection (4)(b) above shall have effect, as from the time when the decision takes effect, as the designation of that land as such a site.
(7) In this section “the relevant persons” has the same meaning as in section 78C above.
Duty of enforcing authority to require remediation of contaminated land etc.
78E (1) In any case where—
(a) any land has been designated as a special site by virtue of section 78C(7) or 78D(6) above, or
(b) a local authority has identified any contaminated land (other than a special site) in its area,
the enforcing authority shall, in accordance with such procedure as may be prescribed and subject to the following provisions of this Part, serve on each person who is an appropriate person a notice (in this Part referred to as a “remediation notice”) specifying what that person is to do by way of remediation and the periods within which he is required to do each of the things so specified.
(2) Different remediation notices requiring the doing of different things by way of remediation may be served on different persons in consequence of the presence of different substances in, on or under any land or waters.
(3) Where two or more persons are appropriate persons in relation to any particular thing which is to be done by way of remediation, the remediation notice served on each of them shall state the proportion, determined under section 78F(7) below, of the cost of doing that thing which each of them respectively is liable to bear.
(4) The only things by way of remediation which the enforcing authority may do, or require to be done, under or by virtue of this Part are things which it considers reasonable, having regard to—
(a) the cost which is likely to be involved; and
(b) the seriousness of the harm, or pollution of controlled waters, in question.
(5) In determining for any purpose of this Part—
(a) what is to be done (whether by an appropriate person, the enforcing authority or any other person) by way of remediation in any particular case,
(b) the standard to which any land is, or waters are, to be remediated pursuant to the notice, or
(c) what is, or is not, to be regarded as reasonable for the purposes of subsection (4) above,
the enforcing authority shall have regard to any guidance issued for the purpose by the Secretary of State.
(6) Regulations may make provision for or in connection with—
(a) the form or content of remediation notices; or
(b) any steps of a procedural nature which are to be taken in connection with, or in consequence of, the service of a remediation notice.
Determination of the appropriate person to bear responsibility for remediation.
78F (1) This section has effect for the purpose of determining who is the appropriate person to bear responsibility for any particular thing which the enforcing authority determines is to be done by way of remediation in any particular case.
(2) Subject to the following provisions of this section, any person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land is an appropriate person.
(3) A person shall only be an appropriate person by virtue of subsection (2) above in relation to things which are to be done by way of remediation which are to any extent referable to substances which he caused or knowingly permitted to be present in, on or under the contaminated land in question.
(4) If no person has, after reasonable inquiry, been found who is by virtue of subsection (2) above an appropriate person to bear responsibility for the things which are to be done by way of remediation, the owner or occupier for the time being of the contaminated land in question is an appropriate person.
(5) If, in consequence of subsection (3) above, there are things which are to be done by way of remediation in relation to which no person has, after reasonable inquiry, been found who is an appropriate person by virtue of subsection (2) above, the owner or occupier for the time being of the contaminated land in question is an appropriate person in relation to those things.
(6) Where two or more persons would, apart from this subsection, be appropriate persons in relation to any particular thing which is to be done by way of remediation, the enforcing authority shall determine in accordance with guidance issued for the purpose by the Secretary of State whether any, and if so which, of them is to be treated as not being an appropriate person in relation to that thing.
(7) Where two or more persons are appropriate persons in relation to any particular thing which is to be done by way of remediation, they shall be liable to bear the cost of doing that thing in proportions determined by the enforcing authority in accordance with guidance issued for the purpose by the Secretary of State.
(8) Any guidance issued for the purposes of subsection (6) or (7) above shall be issued in accordance with section 78YA below.
(9) A person who has caused or knowingly permitted any substance (“substance A”) to be in, on or under any land shall also be taken for the purposes of this section to have caused or knowingly permitted there to be in, on or under that land any substance which is there as a result of a chemical reaction or biological process affecting substance A.
(10) A thing which is to be done by way of remediation may be regarded for the purposes of this Part as referable to the presence of any substance notwithstanding that the thing in question would not have to be done—
(a) in consequence only of the presence of that substance in any quantity; or
(b) in consequence only of the quantity of that substance which any particular person caused or knowingly permitted to be present.
Grant of, and compensation for, rights of entry etc.
78G (1) A remediation notice may require an appropriate person to do things by way of remediation, notwithstanding that he is not entitled to do those things.
(2) Any person whose consent is required before any thing required by a remediation notice may be done shall grant, or join in granting, such rights in relation to any of the relevant land or waters as will enable the appropriate person to comply with any requirements imposed by the remediation notice.
(3) Before serving a remediation notice, the enforcing authority shall reasonably endeavour to consult every person who appears to the authority—
(a) to be the owner or occupier of any of the relevant land or waters, and
(b) to be a person who might be required by subsection (2) above to grant, or join in granting, any rights,
concerning the rights which that person may be so required to grant.
(4) Subsection (3) above shall not preclude the service of a remediation notice in any case where it appears to the enforcing authority that the contaminated land in question is in such a condition, by reason of substances in, on or under the land, that there is imminent danger of serious harm, or serious pollution of controlled waters, being caused.
(5) A person who grants, or joins in granting, any rights pursuant to subsection (2) above shall be entitled, on making an application within such period as may be prescribed and in such manner as may be prescribed to such person as may be prescribed, to be paid by the appropriate person compensation of such amount as may be determined in such manner as may be prescribed.
(6) Without prejudice to the generality of the regulations that may be made by virtue of subsection (5) above, regulations by virtue of that subsection may make such provision in relation to compensation under this section as may be made by regulations by virtue of subsection (4) of section 35A above in relation to compensation under that section.
(7) In this section, “relevant land or waters” means—
(a) the contaminated land in question;
(b) any controlled waters affected by that land; or
(c) any land adjoining or adjacent to that land or those waters.
Restrictions and prohibitions on serving remediation notices.
78H (1) Before serving a remediation notice, the enforcing authority shall reasonably endeavour to consult—
(a) the person on whom the notice is to be served,
(b) the owner of any land to which the notice relates,
(c) any person who appears to that authority to be in occupation of the whole or any part of the land, and
(d) any person of such other description as may be prescribed,
concerning what is to be done by way of remediation.
(2) Regulations may make provision for, or in connection with, steps to be taken for the purposes of subsection (1) above.
(3) No remediation notice shall be served on any person by reference to any contaminated land during any of the following periods, that is to say—
(a) the period—
(i) beginning with the identification of the contaminated land in question pursuant to section 78B(1) above, and
(ii) ending with the expiration of the period of three months beginning with the day on which the notice required by subsection (3)(d) or, as the case may be, (4) of section 78B above is given to that person in respect of that land;
(b) if a decision falling within paragraph (b) of section 78C(1) above is made in relation to the contaminated land in question, the period beginning with the making of the decision and ending with the expiration of the period of three months beginning with—
(i) in a case where the decision is not referred to the Secretary of State under section 78D above, the day on which the notice required by section 78C(6) above is given, or
(ii) in a case where the decision is referred to the Secretary of State under section 78D above, the day on which he gives the notice required by subsection (4)(b) of that section;
(c) if the appropriate Agency gives a notice under subsection (4) of section 78C above to a local authority in relation to the contaminated land in question, the period beginning with the day on which that notice is given and ending with the expiration of the period of three months beginning with—
(i) in a case where notice is given under subsection (6) of that section, the day on which that notice is given;
(ii) in a case where the authority makes a decision falling within subsection (5)(b) of that section and the appropriate Agency fails to give notice under paragraph (b) of section 78D(1) above, the day following the expiration of the period of twenty-one days mentioned in that paragraph; or
(iii) in a case where the authority makes a decision falling within section 78C(5)(b) above which is referred to the Secretary of State under section 78D above, the day on which the Secretary of State gives the notice required by subsection (4)(b) of that section.
(4) Neither subsection (1) nor subsection (3) above shall preclude the service of a remediation notice in any case where it appears to the enforcing authority that the land in question is in such a condition, by reason of substances in, on or under the land, that there is imminent danger of serious harm, or serious pollution of controlled waters, being caused.
(5) The enforcing authority shall not serve a remediation notice on a person if and so long as any one or more of the following conditions is for the time being satisfied in the particular case, that is to say—
(a) the authority is satisfied, in consequence of section 78E(4) and (5) above, that there is nothing by way of remediation which could be specified in a remediation notice served on that person;
(b) the authority is satisfied that appropriate things are being, or will be, done by way of remediation without the service of a remediation notice on that person;
(c) it appears to the authority that the person on whom the notice would be served is the authority itself; or
(d) the authority is satisfied that the powers conferred on it by section 78N below to do what is appropriate by way of remediation are exercisable.
(6) Where the enforcing authority is precluded by virtue of section 78E(4) or (5) above from specifying in a remediation notice any particular thing by way of remediation which it would otherwise have specified in such a notice, the authority shall prepare and publish a document (in this Part referred to as a “remediation declaration”) which shall record—
(a) the reasons why the authority would have specified that thing; and
(b) the grounds on which the authority is satisfied that it is precluded from specifying that thing in such a notice.
(7) In any case where the enforcing authority is precluded, by virtue of paragraph (b), (c) or (d) of subsection (5) above, from serving a remediation notice, the responsible person shall prepare and publish a document (in this Part referred to as a “remediation statement”) which shall record—
(a) the things which are being, have been, or are expected to be, done by way of remediation in the particular case;
(b) the name and address of the person who is doing, has done, or is expected to do, each of those things; and
(c) the periods within which each of those things is being, or is expected to be, done.
(8) For the purposes of subsection (7) above, the “responsible person” is—
(a) in a case where the condition in paragraph (b) of subsection (5) above is satisfied, the person who is doing or has done, or who the enforcing authority is satisfied will do, the things there mentioned; or
(b) in a case where the condition in paragraph (c) or (d) of that subsection is satisfied, the enforcing authority.
(9) If a person who is required by virtue of subsection (8)(a) above to prepare and publish a remediation statement fails to do so within a reasonable time after the date on which a remediation notice specifying the things there mentioned could, apart from subsection (5) above, have been served, the enforcing authority may itself prepare and publish the statement and may recover its reasonable costs of doing so from that person.
(10) Where the enforcing authority has been precluded by virtue only of subsection (5) above from serving a remediation notice on an appropriate person but—
(a) none of the conditions in that subsection is for the time being satisfied in the particular case, and
(b) the authority is not precluded by any other provision of this Part from serving a remediation notice on that appropriate person,
the authority shall serve a remediation notice on that person; and any such notice may be so served without any further endeavours by the authority to consult persons pursuant to subsection (1) above, if and to the extent that that person has been consulted pursuant to that subsection concerning the things which will be specified in the notice.
Restrictions on liability relating to the pollution of controlled waters.
78J (1) This section applies where any land is contaminated land by virtue of paragraph (b) of subsection (2) of section 78A above (whether or not the land is also contaminated land by virtue of paragraph (a) of that subsection).
(2) Where this section applies, no remediation notice given in consequence of the land in question being contaminated land shall require a person who is an appropriate person by virtue of section 78F(4) or (5) above to do anything by way of remediation to that or any other land, or any waters, which he could not have been required to do by such a notice had paragraph (b) of section 78A(2) above (and all other references to pollution of controlled waters) been omitted from this Part.
(3) If, in a case where this section applies, a person permits, has permitted, or might permit, water from an abandoned mine or part of a mine—
(a) to enter any controlled waters, or
(b) to reach a place from which it is or, as the case may be, was likely, in the opinion of the enforcing authority, to enter such waters,
no remediation notice shall require him in consequence to do anything by way of remediation (whether to the contaminated land in question or to any other land or waters) which he could not have been required to do by such a notice had paragraph (b) of section 78A(2) above (and all other references to pollution of controlled waters) been omitted from this Part.
(4) Subsection (3) above shall not apply to the owner or former operator of any mine or part of a mine if the mine or part in question became abandoned after 31st December 1999.
(5) In determining for the purposes of subsection (4) above whether a mine or part of a mine became abandoned before, on or after 31st December 1999 in a case where the mine or part has become abandoned on two or more occasions, of which—
(a) at least one falls on or before that date, and
(b) at least one falls after that date,
the mine or part shall be regarded as becoming abandoned after that date (but without prejudice to the operation of subsection (3) above in relation to that mine or part at, or in relation to, any time before the first of those occasions which falls after that date).
(6) Where, immediately before a part of a mine becomes abandoned, that part is the only part of the mine not falling to be regarded as abandoned for the time being, the abandonment of that part shall not be regarded for the purposes of subsection (4) or (5) above as constituting the abandonment of the mine, but only of that part of it.
(7) Nothing in subsection (2) or (3) above prevents the enforcing authority from doing anything by way of remediation under section 78N below which it could have done apart from that subsection, but the authority shall not be entitled under section 78P below to recover from any person any part of the cost incurred by the authority in doing by way of remediation anything which it is precluded by subsection (2) or (3) above from requiring that person to do.
(8) In this section “mine” has the same meaning as in the Mines and Quarries Act 1954.
Liability in respect of contaminating substances which escape to other land.
78K (1) A person who has caused or knowingly permitted any substances to be in, on or under any land shall also be taken for the purposes of this Part to have caused or, as the case may be, knowingly permitted those substances to be in, on or under any other land to which they appear to have escaped.
(2) Subsections (3) and (4) below apply in any case where it appears that any substances are or have been in, on or under any land (in this section referred to as “land A”) as a result of their escape, whether directly or indirectly, from other land in, on or under which a person caused or knowingly permitted them to be.
(3) Where this subsection applies, no remediation notice shall require a person—
(a) who is the owner or occupier of land A, and
(b) who has not caused or knowingly permitted the substances in question to be in, on or under that land,
to do anything by way of remediation to any land or waters (other than land or waters of which he is the owner or occupier) in consequence of land A appearing to be in such a condition, by reason of the presence of those substances in, on or under it, that significant harm is being caused, or there is a significant possibility of such harm being caused, or that pollution of controlled waters is being, or is likely to be caused.
(4) Where this subsection applies, no remediation notice shall require a person—
(a) who is the owner or occupier of land A, and
(b) who has not caused or knowingly permitted the substances in question to be in, on or under that land,
to do anything by way of remediation in consequence of any further land in, on or under which those substances or any of them appear to be or to have been present as a result of their escape from land A (“land B”) appearing to be in such a condition, by reason of the presence of those substances in, on or under it, that significant harm is being caused, or there is a significant possibility of such harm being caused, or that pollution of controlled waters is being, or is likely to be caused, unless he is also the owner or occupier of land B.
(5) In any case where—
(a) a person (“person A”) has caused or knowingly permitted any substances to be in, on, or under any land,
(b) another person (“person B”) who has not caused or knowingly permitted those substances to be in, on or under that land becomes the owner or occupier of that land, and
(c) the substances, or any of the substances, mentioned in paragraph (a) above appear to have escaped to other land,
no remediation notice shall require person B to do anything by way of remediation to that other land in consequence of the apparent acts or omissions of person A, except to the extent that person B caused or knowingly permitted the escape.
(6) Nothing in subsection (3), (4) or (5) above prevents the enforcing authority from doing anything by way of remediation under section 78N below which it could have done apart from that subsection, but the authority shall not be entitled under section 78P below to recover from any person any part of the cost incurred by the authority in doing by way of remediation anything which it is precluded by subsection (3), (4) or (5) above from requiring that person to do.
(7) In this section, “appear” means appear to the enforcing authority, and cognate expressions shall be construed accordingly.
Appeals against remediation notices.
78L (1) A person on whom a remediation notice is served may, within the period of twenty-one days beginning with the day on which the notice is served, appeal against the notice—
(a) if it was served by a local authority, to a magistrates’ court or, in Scotland, to the sheriff by way of summary application; or
(b) if it was served by the appropriate Agency, to the Secretary of State;
and in the following provisions of this section “the appellate authority” means the magistrates’ court, the sheriff or the Secretary of State, as the case may be.
(2) On any appeal under subsection (1) above the appellate authority—
(a) shall quash the notice, if it is satisfied that there is a material defect in the notice; but
(b) subject to that, may confirm the remediation notice, with or without modification, or quash it.
(3) Where an appellate authority confirms a remediation notice, with or without modification, it may extend the period specified in the notice for doing what the notice requires to be done.
(4) Regulations may make provision with respect to—
(a) the grounds on which appeals under subsection (1) above may be made;
(b) the cases in which, grounds on which, court or tribunal to which, or person at whose instance, an appeal against a decision of a magistrates’ court or sheriff court in pursuance of an appeal under subsection (1) above shall lie; or
(c) the procedure on an appeal under subsection (1) above or on an appeal by virtue of paragraph (b) above.
(5) Regulations under subsection (4) above may (among other things)—
(a) include provisions comparable to those in section 290 of the Public Health Act 1936 (appeals against notices requiring the execution of works);
(b) prescribe the cases in which a remediation notice is, or is not, to be suspended until the appeal is decided, or until some other stage in the proceedings;
(c) prescribe the cases in which the decision on an appeal may in some respects be less favourable to the appellant than the remediation notice against which he is appealing;
(d) prescribe the cases in which the appellant may claim that a remediation notice should have been served on some other person and prescribe the procedure to be followed in those cases;
(e) make provision as respects—
(i) the particulars to be included in the notice of appeal;
(ii) the persons on whom notice of appeal is to be served and the particulars, if any, which are to accompany the notice; and
(iii) the abandonment of an appeal;
(f) make different provision for different cases or classes of case.
(6) This section, so far as relating to appeals to the Secretary of State, is subject to section 114 of the Environment Act 1995 (delegation or reference of appeals etc).
Offences of not complying with a remediation notice.
78M (1) If a person on whom an enforcing authority serves a remediation notice fails, without reasonable excuse, to comply with any of the requirements of the notice, he shall be guilty of an offence.
(2) Where the remediation notice in question is one which was required by section 78E(3) above to state, in relation to the requirement which has not been complied with, the proportion of the cost involved which the person charged with the offence is liable to bear, it shall be a defence for that person to prove that the only reason why he has not complied with the requirement is that one or more of the other persons who are liable to bear a proportion of that cost refused, or was not able, to comply with the requirement.
(3) Except in a case falling within subsection (4) below, a person who commits an offence under subsection (1) above shall be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale and to a further fine of an amount equal to one-tenth of level 5 on the standard scale for each day on which the failure continues after conviction of the offence and before the enforcing authority has begun to exercise its powers by virtue of section 78N(3)(c) below.
(4) A person who commits an offence under subsection (1) above in a case where the contaminated land to which the remediation notice relates is industrial, trade or business premises shall be liable on summary conviction to a fine not exceeding £20,000 or such greater sum as the Secretary of State may from time to time by order substitute and to a further fine of an amount equal to one-tenth of that sum for each day on which the failure continues after conviction of the offence and before the enforcing authority has begun to exercise its powers by virtue of section 78N(3)(c) below.
(5) If the enforcing authority is of the opinion that proceedings for an offence under this section would afford an ineffectual remedy against a person who has failed to comply with any of the requirements of a remediation notice which that authority has served on him, that authority may take proceedings in the High Court or, in Scotland, in any court of competent jurisdiction, for the purpose of securing compliance with the remediation notice.
(6) In this section, “industrial, trade or business premises” means premises used for any industrial, trade or business purposes or premises not so used on which matter is burnt in connection with any industrial, trade or business process, and premises are used for industrial purposes where they are used for the purposes of any treatment or process as well as where they are used for the purpose of manufacturing.
(7) No order shall be made under subsection (4) above unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
Powers of the enforcing authority to carry out remediation.
78N (1) Where this section applies, the enforcing authority shall itself have power, in a case falling within paragraph (a) or (b) of section 78E(1) above, to do what is appropriate by way of remediation to the relevant land or waters.
(2) Subsection (1) above shall not confer power on the enforcing authority to do anything by way of remediation if the authority would, in the particular case, be precluded by section 78YB below from serving a remediation notice requiring that thing to be done.
(3) This section applies in each of the following cases, that is to say—
(a) where the enforcing authority considers it necessary to do anything itself by way of remediation for the purpose of preventing the occurrence of any serious harm, or serious pollution of controlled waters, of which there is imminent danger;
(b) where an appropriate person has entered into a written agreement with the enforcing authority for that authority to do, at the cost of that person, that which he would otherwise be required to do under this Part by way of remediation;
(c) where a person on whom the enforcing authority serves a remediation notice fails to comply with any of the requirements of the notice;
(d) where the enforcing authority is precluded by section 78J or 78K above from including something by way of remediation in a remediation notice;
(e) where the enforcing authority considers that, were it to do some particular thing by way of remediation, it would decide, by virtue of subsection (2) of section 78P below or any guidance issued under that subsection,—
(i) not to seek to recover under subsection (1) of that section any of the reasonable cost incurred by it in doing that thing; or
(ii) to seek so to recover only a portion of that cost;
(f) where no person has, after reasonable inquiry, been found who is an appropriate person in relation to any particular thing.
(4) Subject to section 78E(4) and (5) above, for the purposes of this section, the things which it is appropriate for the enforcing authority to do by way of remediation are—
(a) in a case falling within paragraph (a) of subsection (3) above, anything by way of remediation which the enforcing authority considers necessary for the purpose mentioned in that paragraph;
(b) in a case falling within paragraph (b) of that subsection, anything specified in, or determined under, the agreement mentioned in that paragraph;
(c) in a case falling within paragraph (c) of that subsection, anything which the person mentioned in that paragraph was required to do by virtue of the remediation notice;
(d) in a case falling within paragraph (d) of that subsection, anything by way of remediation which the enforcing authority is precluded by section 78J or 78K above from including in a remediation notice;
(e) in a case falling within paragraph (e) or (f) of that subsection, the particular thing mentioned in the paragraph in question.
(5) In this section “the relevant land or waters” means—
(a) the contaminated land in question;
(b) any controlled waters affected by that land; or
(c) any land adjoining or adjacent to that land or those waters.
Recovery of, and security for, the cost of remediation by the enforcing authority.
78P (1) Where, by virtue of section 78N(3)(a), (c), (e) or (f) above, the enforcing authority does any particular thing by way of remediation, it shall be entitled, subject to sections 78J(7) and 78K(6) above, to recover the reasonable cost incurred in doing it from the appropriate person or, if there are two or more appropriate persons in relation to the thing in question, from those persons in proportions determined pursuant to section 78F(7) above.
(2) In deciding whether to recover the cost, and, if so, how much of the cost, which it is entitled to recover under subsection (1) above, the enforcing authority shall have regard—
(a) to any hardship which the recovery may cause to the person from whom the cost is recoverable; and
(b) to any guidance issued by the Secretary of State for the purposes of this subsection.
(3) Subsection (4) below shall apply in any case where—
(a) any cost is recoverable under subsection (1) above from a person—
(i) who is the owner of any premises which consist of or include the contaminated land in question; and
(ii) who caused or knowingly permitted the substances, or any of the substances, by reason of which the land is contaminated land to be in, on or under the land; and
(b) the enforcing authority serves a notice under this subsection (in this Part referred to as a “charging notice”) on that person.
(4) Where this subsection applies—
(a) the cost shall carry interest, at such reasonable rate as the enforcing authority may determine, from the date of service of the notice until the whole amount is paid; and
(b) subject to the following provisions of this section, the cost and accrued interest shall be a charge on the premises mentioned in subsection (3)(a)(i) above.
(5) A charging notice shall—
(a) specify the amount of the cost which the enforcing authority claims is recoverable;
(b) state the effect of subsection (4) above and the rate of interest determined by the authority under that subsection; and
(c) state the effect of subsections (7) and (8) below.
(6) On the date on which an enforcing authority serves a charging notice on a person, the authority shall also serve a copy of the notice on every other person who, to the knowledge of the authority, has an interest in the premises capable of being affected by the charge.
(7) Subject to any order under subsection (9)(b) or (c) below, the amount of any cost specified in a charging notice and the accrued interest shall be a charge on the premises—
(a) as from the end of the period of twenty-one days beginning with the service of the charging notice, or
(b) where an appeal is brought under subsection (8) below, as from the final determination or (as the case may be) the withdrawal, of the appeal,
until the cost and interest are recovered.
(8) A person served with a charging notice or a copy of a charging notice may appeal against the notice to a county court within the period of twenty-one days beginning with the date of service.
(9) On an appeal under subsection (8) above, the court may—
(a) confirm the notice without modification;
(b) order that the notice is to have effect with the substitution of a different amount for the amount originally specified in it; or
(c) order that the notice is to be of no effect.
(10) Regulations may make provision with respect to—
(a) the grounds on which appeals under this section may be made; or
(b) the procedure on any such appeal.
(11) An enforcing authority shall, for the purpose of enforcing a charge under this section, have all the same powers and remedies under the Law of Property Act 1925, and otherwise, as if it were a mortgagee by deed having powers of sale and lease, of accepting surrenders of leases and of appointing a receiver.
(12) Where any cost is a charge on premises under this section, the enforcing authority may by order declare the cost to be payable with interest by instalments within the specified period until the whole amount is paid.
(13) In subsection (12) above—
“interest” means interest at the rate determined by the enforcing authority under subsection (4) above; and
“the specified period” means such period of thirty years or less from the date of service of the charging notice as is specified in the order.
(14) Subsections (3) to (13) above do not extend to Scotland.
Special sites.
78Q (1) If, in a case where a local authority has served a remediation notice, the contaminated land in question becomes a special site, the appropriate Agency may adopt the remediation notice and, if it does so,—
(a) it shall give notice of its decision to adopt the remediation notice to the appropriate person and to the local authority;
(b) the remediation notice shall have effect, as from the time at which the appropriate Agency decides to adopt it, as a remediation notice given by that Agency; and
(c) the validity of the remediation notice shall not be affected by—
(i) the contaminated land having become a special site;
(ii) the adoption of the remediation notice by the appropriate Agency; or
(iii) anything in paragraph (b) above.
(2) Where a local authority has, by virtue of section 78N above, begun to do any thing, or any series of things, by way of remediation—
(a) the authority may continue doing that thing, or that series of things, by virtue of that section, notwithstanding that the contaminated land in question becomes a special site; and
(b) section 78P above shall apply in relation to the reasonable cost incurred by the authority in doing that thing or those things as if that authority were the enforcing authority.
(3) If and so long as any land is a special site, the appropriate Agency may from time to time inspect that land for the purpose of keeping its condition under review.
(4) If it appears to the appropriate Agency that a special site is no longer land which is required to be designated as such a site, the appropriate Agency may give notice—
(a) to the Secretary of State, and
(b) to the local authority in whose area the site is situated,
terminating the designation of the land in question as a special site as from such date as may be specified in the notice.
(5) A notice under subsection (4) above shall not prevent the land, or any of the land, to which the notice relates being designated as a special site on a subsequent occasion.
(6) In exercising its functions under subsection (3) or (4) above, the appropriate Agency shall act in accordance with any guidance given for the purpose by the Secretary of State.
Registers.
78R (1) Every enforcing authority shall maintain a register containing prescribed particulars of or relating to—
(a) remediation notices served by that authority;
(b) appeals against any such remediation notices;
(c) remediation statements or remediation declarations prepared and published under section 78H above;
(d) in relation to an enforcing authority in England and Wales, appeals against charging notices served by that authority;
(e) notices under subsection (1)(b) or (5)(a) of section 78C above which have effect by virtue of subsection (7) of that section as the designation of any land as a special site;
(f) notices under subsection (4)(b) of section 78D above which have effect by virtue of subsection (6) of that section as the designation of any land as a special site;
(g) notices given by or to the enforcing authority under section 78Q(4) above terminating the designation of any land as a special site;
(h) notifications given to that authority by persons—
(i) on whom a remediation notice has been served, or
(ii) who are or were required by virtue of section 78H(8)(a) above to prepare and publish a remediation statement,
of what they claim has been done by them by way of remediation;
(j) notifications given to that authority by owners or occupiers of land—
(i) in respect of which a remediation notice has been served, or
(ii) in respect of which a remediation statement has been prepared and published,
of what they claim has been done on the land in question by way of remediation;
(k) convictions for such offences under section 78M above as may be prescribed;
(l) such other matters relating to contaminated land as may be prescribed;
but that duty is subject to sections 78S and 78T below.
(2) The form of, and the descriptions of information to be contained in, notifications for the purposes of subsection (1)(h) or (j) above may be prescribed by the Secretary of State.
(3) No entry made in a register by virtue of subsection (1)(h) or (j) above constitutes a representation by the body maintaining the register or, in a case where the entry is made by virtue of subsection (6) below, the authority which sent the copy of the particulars in question pursuant to subsection (4) or (5) below—
(a) that what is stated in the entry to have been done has in fact been done; or
(b) as to the manner in which it has been done.
(4) Where any particulars are entered on a register maintained under this section by the appropriate Agency, the appropriate Agency shall send a copy of those particulars to the local authority in whose area is situated the land to which the particulars relate.
(5) In any case where—
(a) any land is treated by virtue of section 78X(2) below as situated in the area of a local authority other than the local authority in whose area it is in fact situated, and
(b) any particulars relating to that land are entered on the register maintained under this section by the local authority in whose area the land is so treated as situated,
that authority shall send a copy of those particulars to the local authority in whose area the land is in fact situated.
(6) Where a local authority receives a copy of any particulars sent to it pursuant to subsection (4) or (5) above, it shall enter those particulars on the register maintained by it under this section.
(7) Where information of any description is excluded by virtue of section 78T below from any register maintained under this section, a statement shall be entered in the register indicating the existence of information of that description.
(8) It shall be the duty of each enforcing authority—
(a) to secure that the registers maintained by it under this section are available, at all reasonable times, for inspection by the public free of charge; and
(b) to afford to members of the public facilities for obtaining copies of entries, on payment of reasonable charges;
and, for the purposes of this subsection, places may be prescribed by the Secretary of State at which any such registers or facilities as are mentioned in paragraph (a) or (b) above are to be available or afforded to the public in pursuance of the paragraph in question.
(9) Registers under this section may be kept in any form.
Exclusion from registers of information affecting national security.
78S (1) No information shall be included in a register maintained under section 78R above if and so long as, in the opinion of the Secretary of State, the inclusion in the register of that information, or information of that description, would be contrary to the interests of national security.
(2) The Secretary of State may, for the purpose of securing the exclusion from registers of information to which subsection (1) above applies, give to enforcing authorities directions—
(a) specifying information, or descriptions of information, to be excluded from their registers; or
(b) specifying descriptions of information to be referred to the Secretary of State for his determination;
and no information referred to the Secretary of State in pursuance of paragraph (b) above shall be included in any such register until the Secretary of State determines that it should be so included.
(3) The enforcing authority shall notify the Secretary of State of any information which it excludes from the register in pursuance of directions under subsection (2) above.
(4) A person may, as respects any information which appears to him to be information to which subsection (1) above may apply, give a notice to the Secretary of State specifying the information and indicating its apparent nature; and, if he does so—
(a) he shall notify the enforcing authority that he has done so; and
(b) no information so notified to the Secretary of State shall be included in any such register until the Secretary of State has determined that it should be so included.
Exclusion from registers of certain confidential information.
78T (1) No information relating to the affairs of any individual or business shall be included in a register maintained under section 78R above, without the consent of that individual or the person for the time being carrying on that business, if and so long as the information—
(a) is, in relation to him, commercially confidential; and
(b) is not required to be included in the register in pursuance of directions under subsection (7) below;
but information is not commercially confidential for the purposes of this section unless it is determined under this section to be so by the enforcing authority or, on appeal, by the Secretary of State.
(2) Where it appears to an enforcing authority that any information which has been obtained by the authority under or by virtue of any provision of this Part might be commercially confidential, the authority shall—
(a) give to the person to whom or whose business it relates notice that that information is required to be included in the register unless excluded under this section; and
(b) give him a reasonable opportunity—
(i) of objecting to the inclusion of the information on the ground that it is commercially confidential; and
(ii) of making representations to the authority for the purpose of justifying any such objection;
and, if any representations are made, the enforcing authority shall, having taken the representations into account, determine whether the information is or is not commercially confidential.
(3) Where, under subsection (2) above, an authority determines that information is not commercially confidential—
(a) the information shall not be entered in the register until the end of the period of twenty-one days beginning with the date on which the determination is notified to the person concerned;
(b) that person may appeal to the Secretary of State against the decision;
and, where an appeal is brought in respect of any information, the information shall not be entered in the register until the end of the period of seven days following the day on which the appeal is finally determined or withdrawn.
(4) An appeal under subsection (3) above shall, if either party to the appeal so requests or the Secretary of State so decides, take or continue in the form of a hearing (which must be held in private).
(5) Subsection (10) of section 15 above shall apply in relation to an appeal under subsection (3) above as it applies in relation to an appeal under that section.
(6) Subsection (3) above is subject to section 114 of the Environment Act 1995 (delegation or reference of appeals etc).
(7) The Secretary of State may give to the enforcing authorities directions as to specified information, or descriptions of information, which the public interest requires to be included in registers maintained under section 78R above notwithstanding that the information may be commercially confidential.
(8) Information excluded from a register shall be treated as ceasing to be commercially confidential for the purposes of this section at the expiry of the period of four years beginning with the date of the determination by virtue of which it was excluded; but the person who furnished it may apply to the authority for the information to remain excluded from the register on the ground that it is still commercially confidential and the authority shall determine whether or not that is the case.
(9) Subsections (3) to (6) above shall apply in relation to a determination under subsection (8) above as they apply in relation to a determination under subsection (2) above.
(10) Information is, for the purposes of any determination under this section, commercially confidential, in relation to any individual or person, if its being contained in the register would prejudice to an unreasonable degree the commercial interests of that individual or person.
(11) For the purposes of subsection (10) above, there shall be disregarded any prejudice to the commercial interests of any individual or person so far as relating only to the value of the contaminated land in question or otherwise to the ownership or occupation of that land.
Reports by the appropriate Agency on the state of contaminated land.
78U (1) The appropriate Agency shall—
(a) from time to time, or
(b) if the Secretary of State at any time so requests,
prepare and publish a report on the state of contaminated land in England and Wales or in Scotland, as the case may be.
(2) A local authority shall, at the written request of the appropriate Agency, furnish the appropriate Agency with such information to which this subsection applies as the appropriate Agency may require for the purpose of enabling it to perform its functions under subsection (1) above.
(3) The information to which subsection (2) above applies is such information as the local authority may have, or may reasonably be expected to obtain, with respect to the condition of contaminated land in its area, being information which the authority has acquired or may acquire in the exercise of its functions under this Part.
Site-specific guidance by the appropriate Agency concerning contaminated land.
78V (1) The appropriate Agency may issue guidance to any local authority with respect to the exercise or performance of the authority’s powers or duties under this Part in relation to any particular contaminated land; and in exercising or performing those powers or duties in relation to that land the authority shall have regard to any such guidance so issued.
(2) If and to the extent that any guidance issued under subsection (1) above to a local authority is inconsistent with any guidance issued under this Part by the Secretary of State, the local authority shall disregard the guidance under that subsection.
(3) A local authority shall, at the written request of the appropriate Agency, furnish the appropriate Agency with such information to which this subsection applies as the appropriate Agency may require for the purpose of enabling it to issue guidance for the purposes of subsection (1) above.
(4) The information to which subsection (3) above applies is such information as the local authority may have, or may reasonably be expected to obtain, with respect to any contaminated land in its area, being information which the authority has acquired, or may acquire, in the exercise of its functions under this Part.
The appropriate Agency to have regard to guidance given by the Secretary of State.
78W (1) The Secretary of State may issue guidance to the appropriate Agency with respect to the exercise or performance of that Agency’s powers or duties under this Part; and in exercising or performing those powers or duties the appropriate Agency shall have regard to any such guidance so issued.
(2) The duty imposed on the appropriate Agency by subsection (1) above is without prejudice to any duty imposed by any other provision of this Part on that Agency to act in accordance with guidance issued by the Secretary of State.
Supplementary provisions.
78X (1) Where it appears to a local authority that two or more different sites, when considered together, are in such a condition, by reason of substances in, on or under the land, that—
(a) significant harm is being caused or there is a significant possibility of such harm being caused, or
(b) pollution of controlled waters is being, or is likely to be, caused,
this Part shall apply in relation to each of those sites, whether or not the condition of the land at any of them, when considered alone, appears to the authority to be such that significant harm is being caused, or there is a significant possibility of such harm being caused, or that pollution of controlled waters is being or is likely to be caused.
(2) Where it appears to a local authority that any land outside, but adjoining or adjacent to, its area is in such a condition, by reason of substances in, on or under the land, that significant harm is being caused, or there is a significant possibility of such harm being caused, or that pollution of controlled waters is being, or is likely to be, caused within its area—
(a) the authority may, in exercising its functions under this Part, treat that land as if it were land situated within its area; and
(b) except in this subsection, any reference—
(i) to land within the area of a local authority, or
(ii) to the local authority in whose area any land is situated,
shall be construed accordingly;
but this subsection is without prejudice to the functions of the local authority in whose area the land is in fact situated.
(3) A person acting in a relevant capacity—
(a) shall not thereby be personally liable, under this Part, to bear the whole or any part of the cost of doing any thing by way of remediation, unless that thing is to any extent referable to substances whose presence in, on or under the contaminated land in question is a result of any act done or omission made by him which it was unreasonable for a person acting in that capacity to do or make; and
(b) shall not thereby be guilty of an offence under or by virtue of section 78M above unless the requirement which has not been complied with is a requirement to do some particular thing for which he is personally liable to bear the whole or any part of the cost.
(4) In subsection (3) above, “person acting in a relevant capacity” means—
(a) a person acting as an insolvency practitioner, within the meaning of section 388 of the Insolvency Act 1986 (including that section as it applies in relation to an insolvent partnership by virtue of any order made under section 421 of that Act);
(b) the official receiver acting in a capacity in which he would be regarded as acting as an insolvency practitioner within the meaning of section 388 of the Insolvency Act 1986 if subsection (5) of that section were disregarded;
(c) the official receiver acting as receiver or manager;
(d) a person acting as a special manager under section 177 or 370 of the Insolvency Act 1986;
(e) the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the Bankruptcy (Scotland) Act 1985);
(f) a person acting as a receiver or receiver and manager—
(i) under or by virtue of any enactment; or
(ii) by virtue of his appointment as such by an order of a court or by any other instrument.
(5) Regulations may make different provision for different cases or circumstances.
Application to the Isles of Scilly.
78Y (1) Subject to the provisions of any order under this section, this Part shall not apply in relation to the Isles of Scilly.
(2) The Secretary of State may, after consultation with the Council of the Isles of Scilly, by order provide for the application of any provisions of this Part to the Isles of Scilly; and any such order may provide for the application of those provisions to those Isles with such modifications as may be specified in the order.
(3) An order under this section may—
(a) make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and
(b) contain such supplemental, consequential and transitional provision as the Secretary of State considers appropriate, including provision saving provision repealed by or under any enactment.
Supplementary provisions with respect to guidance by the Secretary of State.
78YA (1) Any power of the Secretary of State to issue guidance under this Part shall only be exercisable after consultation with the appropriate Agency and such other bodies or persons as he may consider it appropriate to consult in relation to the guidance in question.
(2) A draft of any guidance proposed to be issued under section 78A(2) or (5), 78B(2) or 78F(6) or (7) above shall be laid before each House of Parliament and the guidance shall not be issued until after the period of 40 days beginning with the day on which the draft was so laid or, if the draft is laid on different days, the later of the two days.
(3) If, within the period mentioned in subsection (2) above, either House resolves that the guidance, the draft of which was laid before it, should not be issued, the Secretary of State shall not issue that guidance.
(4) In reckoning any period of 40 days for the purposes of subsection (2) or (3) above, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(5) The Secretary of State shall arrange for any guidance issued by him under this Part to be published in such manner as he considers appropriate.
Interaction of this Part with other enactments.
78YB (1) A remediation notice shall not be served if and to the extent that it appears to the enforcing authority that the powers of the appropriate Agency under section 27 above may be exercised in relation to—
(a) the significant harm (if any), and
(b) the pollution of controlled waters (if any),
by reason of which the contaminated land in question is such land.
(2) Nothing in this Part shall apply in relation to any land in respect of which there is for the time being in force a site licence under Part II above, except to the extent that any significant harm, or pollution of controlled waters, by reason of which that land would otherwise fall to be regarded as contaminated land is attributable to causes other than—
(a) breach of the conditions of the licence; or
(b) the carrying on, in accordance with the conditions of the licence, of any activity authorised by the licence.
(3) If, in a case falling within subsection (1) or (7) of section 59 above, the land in question is contaminated land, or becomes such land by reason of the deposit of the controlled waste in question, a remediation notice shall not be served in respect of that land by reason of that waste or any consequences of its deposit, if and to the extent that it appears to the enforcing authority that the powers of a waste regulation authority or waste collection authority under that section may be exercised in relation to that waste or the consequences of its deposit.
(4) No remediation notice shall require a person to do anything the effect of which would be to impede or prevent the making of a discharge in pursuance of a consent given under Chapter II of Part III of the Water Resources Act 1991 (pollution offences) or, in relation to Scotland, in pursuance of a consent given under Part II of the Control of Pollution Act 1974.
This Part and radioactivity.
78YC Except as provided by regulations, nothing in this Part applies in relation to harm, or pollution of controlled waters, so far as attributable to any radioactivity possessed by any substance; but regulations may—
(a) provide for prescribed provisions of this Part to have effect with such modifications as the Secretary of State considers appropriate for the purpose of dealing with harm, or pollution of controlled waters, so far as attributable to any radioactivity possessed by any substances; or
(b) make such modifications of the Radioactive Substances Act 1993 or any other Act as the Secretary of State considers appropriate.
After Chapter II of Part III of the Water Resources Act 1991 (pollution offences) there shall be inserted—
Chapter IIA Abandoned Mines
Introductory.
91A (1) For the purposes of this Chapter, “abandonment”, in relation to a mine,—
(a) subject to paragraph (b) below, includes—
(i) the discontinuance of any or all of the operations for the removal of water from the mine;
(ii) the cessation of working of any relevant seam, vein or vein-system;
(iii) the cessation of use of any shaft or outlet of the mine;
(iv) in the case of a mine in which activities other than mining activities are carried on (whether or not mining activities are also carried on in the mine)—
(A) the discontinuance of some or all of those other activities in the mine; and
(B) any substantial change in the operations for the removal of water from the mine; but
(b) does not include—
(i) any disclaimer under section 178 or 315 of the Insolvency Act 1986 (power of liquidator, or trustee of a bankrupt’s estate, to disclaim onerous property) by the official receiver acting in a compulsory capacity; or
(ii) the abandonment of any rights, interests or liabilities by the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the Bankruptcy (Scotland) Act 1985);
and cognate expressions shall be construed accordingly.
(2) In this Chapter, except where the context otherwise requires—
“the 1954 Act” means the Mines and Quarries Act 1954;
“acting in a compulsory capacity”, in the case of the official receiver, means acting as—
liquidator of a company;
receiver or manager of a bankrupt’s estate, pursuant to section 287 of the Insolvency Act 1986;
trustee of a bankrupt’s estate;
liquidator of an insolvent partnership;
trustee of an insolvent partnership;
trustee, or receiver or manager, of the insolvent estate of a deceased person;
“mine” has the same meaning as in the 1954 Act;
“the official receiver” has the same meaning as it has in the Insolvency Act 1986 by virtue of section 399(1) of that Act;
“prescribed” means prescribed in regulations;
“regulations” means regulations made by the Secretary of State;
“relevant seam, vein or vein-system”, in the case of any mine, means any seam, vein or vein-system for the purpose of, or in connection with, whose working any excavation constituting or comprised in the mine was made.
Mine operators to give the Agency six months’ notice of any proposed abandonment.
91B (1) If, in the case of any mine, there is to be an abandonment at any time after the expiration of the initial period, it shall be the duty of the operator of the mine to give notice of the proposed abandonment to the Agency at least six months before the abandonment takes effect.
(2) A notice under subsection (1) above shall contain such information (if any) as is prescribed for the purpose, which may include information about the operator’s opinion as to any consequences of the abandonment.
(3) A person who fails to give the notice required by subsection (1) above shall be guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(4) A person shall not be guilty of an offence under subsection (3) above if—
(a) the abandonment happens in an emergency in order to avoid danger to life or health; and
(b) notice of the abandonment, containing such information as may be prescribed, is given as soon as reasonably practicable after the abandonment has happened.
(5) Where the operator of a mine is—
(a) the official receiver acting in a compulsory capacity, or
(b) the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the Bankruptcy (Scotland) Act 1985),
he shall not be guilty of an offence under subsection (3) above by reason of any failure to give the notice required by subsection (1) above if, as soon as reasonably practicable (whether before or after the abandonment), he gives to the Agency notice of the abandonment or proposed abandonment, containing such information as may be prescribed.
(6) Where a person gives notice under subsection (1), (4)(b) or (5) above, he shall publish prescribed particulars of, or relating to, the notice in one or more local newspapers circulating in the locality where the mine is situated.
(7) Where the Agency—
(a) receives notice under this section or otherwise learns of an abandonment or proposed abandonment in the case of any mine, and
(b) considers that, in consequence of the abandonment or proposed abandonment taking effect, any land has or is likely to become contaminated land, within the meaning of Part IIA of the Environmental Protection Act 1990,
it shall be the duty of the Agency to inform the local authority in whose area that land is situated of the abandonment or proposed abandonment.
(8) In this section—
“the initial period” means the period of six months beginning with the day on which subsection (1) above comes into force;
“local authority” means—
any unitary authority;
any district council, so far as it is not a unitary authority;
the Common Council of the City of London and, as respects the Temples, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple respectively;
“unitary authority” means—
the council of a county, so far as it is the council of an area for which there are no district councils;
the council of any district comprised in an area for which there is no county council;
the council of a London borough;
the council of a county borough in Wales.
After Part I of the Control of Pollution Act 1974 (waste on land) there shall be inserted—
Part IA Abandoned Mines
Introductory.
30Y (1) For the purposes of this Part, “abandonment”, in relation to a mine,—
(a) subject to paragraph (b) below, includes—
(i) the discontinuance of any or all of the operations for the removal of water from the mine;
(ii) the cessation of working of any relevant seam, vein or vein-system;
(iii) the cessation of use of any shaft or outlet of the mine;
(iv) in the case of a mine in which activities other than mining activities are carried on (whether or not mining activities are also carried on in the mine)—
(A) the discontinuance of some or all of those other activities in the mine; and
(B) any substantial change in the operations for the removal of water from the mine; but
(b) does not include—
(i) the abandonment of any rights, interests or liabilities by the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the Bankruptcy (Scotland) Act 1985); or
(ii) any disclaimer under section 178 or 315 of the Insolvency Act 1986 (power of liquidator, or trustee of bankrupt’s estate, to disclaim onerous property) by the official receiver acting in a compulsory capacity;
and cognate expressions shall be construed accordingly.
(2) In this Part, except where the context otherwise requires—
“acting in a compulsory capacity”, in the case of the official receiver, means acting as—
liquidator of a company;
receiver or manager of a bankrupt’s estate, pursuant to section 287 of the Insolvency Act 1986;
trustee of a bankrupt’s estate;
liquidator of an insolvent partnership;
trustee of an insolvent partnership;
trustee, or receiver or manager, of the insolvent estate of a deceased person;
“the official receiver” has the same meaning as it has in the Insolvency Act 1986 by virtue of section 399(1) of that Act;
“relevant seam, vein or vein-system”, in the case of any mine, means any seam, vein or vein-system for the purpose of, or in connection with, whose working any excavation constituting or comprised in the mine was made.
(3) This Part extends only to Scotland.
Mine operators to give SEPA six months’ notice of any proposed abandonment.
30Z (1) If, in the case of any mine, there is to be an abandonment at any time after the expiration of the initial period, it shall be the duty of the operator of the mine to give notice of the proposed abandonment to SEPA at least six months before the abandonment takes effect.
(2) A notice under subsection (1) above shall contain such information (if any) as is prescribed for the purpose, which may include information about the operator’s opinion as to any consequences of the abandonment.
(3) A person who fails to give the notice required by subsection (1) above shall be guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(4) A person shall not be guilty of an offence under subsection (3) above if—
(a) the abandonment happens in an emergency in order to avoid danger to life or health; and
(b) notice of the abandonment, containing such information as may be prescribed, is given as soon as reasonably practicable after the abandonment has happened.
(5) Where the operator of a mine is—
(a) the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the Bankruptcy (Scotland) Act 1985); or
(b) the official receiver acting in a compulsory capacity,
he shall not be guilty of an offence under subsection (3) above by reason of any failure to give the notice required by subsection (1) above if, as soon as is reasonably practicable (whether before or after the abandonment), he gives to SEPA notice of the abandonment or proposed abandonment, containing such information as may be prescribed.
(6) Where a person gives notice under subsection (1), (4)(b) or (5) above, he shall publish prescribed particulars of, or relating to, the notice in one or more local newspapers circulating in the locality where the mine is situated.
(7) Where SEPA—
(a) receives notice under this section or otherwise learns of an abandonment or proposed abandonment in the case of any mine, and
(b) considers that, in consequence of the abandonment or proposed abandonment taking effect, any land has or is likely to become contaminated land, within the meaning of Part IIA of the Environmental Protection Act 1990,
it shall be the duty of SEPA to inform the local authority in whose area that land is situated of the abandonment or proposed abandonment.
(8) In this section—
“the initial period” means the period of six months beginning with the day on which subsection (1) above comes into force;
“local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994.
60 Amendments to sections 89 and 161 of the Water Resources Act 1991.
(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) In section 161 of that Act (anti-pollution works and operations) in subsection (1), after paragraph (b) there shall be inserted the words— “ and, in either case, the Agency shall be entitled to carry out investigations for the purpose of establishing the source of the matter and the identity of the person who has caused or knowingly permitted it to be present in controlled waters or at a place from which it was likely, in the opinion of the Agency, to enter controlled waters. ”
(4) In subsection (3) of that section (Agency entitled to recover expenses of works or operations from the person responsible for the pollution) for the words “or operations” there shall be substituted the words “ operations or investigations ”.
(5) In subsection (4) of that section (exception for expenses of works or operations in respect of water from an abandoned mine)—
(a) for the words “or operations” there shall be substituted the words “ operations or investigations ”; and
(b) after the words “an abandoned mine” there shall be inserted the words “ or an abandoned part of a mine ”.
(6) After that subsection there shall be inserted—
(4A) Subsection (4) above shall not apply to the owner or former operator of any mine or part of a mine if the mine or part in question became abandoned after 31st December 1999.
(4B) Subsections (3B) and (3C) of section 89 above shall apply in relation to subsections (4) and (4A) above as they apply in relation to subsections (3) and (3A) of that section.
(7) In subsection (6) of that section (definitions), after the definition of “controlled waters” there shall be inserted—
“expenses” includes costs;
.
(1) In section 5 of the National Parks and Access to the Countryside Act 1949 (National Parks) for subsection (1) (which provides that Part II of that Act has effect for the purpose of preserving and enhancing the natural beauty of the areas specified in subsection (2) of that section and for the purpose of promoting their enjoyment by the public) there shall be substituted—
(1) The provisions of this Part of this Act shall have effect for the purpose—
(a) of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas specified in the next following subsection; and
(b) of promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public.
(2) The amendment made by subsection (1) above is without prejudice to the continuing validity of any designation of an area as a National Park under subsection (3) of that section.
(3) The following enactments (which refer to the purposes specified in section 5(1) of the National Parks and Access to the Countryside Act 1949), that is to say—
(a) sections 6(3) and (4)(g), 11 and 101(3) of that Act, and
(b) sections 2(5)(b) and 13(4) of the Countryside Act 1968,
shall have effect in accordance with subsection (4) below.
(4) In the application of any provision specified in subsection (3) above, any reference to the purposes specified in subsection (1) of section 5 of the National Parks and Access to the Countryside Act 1949—
(a) in relation to any particular National Park, shall be construed as a reference to the substituted purposes as from the time when a National Park authority becomes the local planning authority for that Park; and
(b) in relation to National Parks generally, shall be construed as a reference—
(i) to the original purposes, so far as relating to National Parks in the case of which the National Park authority has not become the local planning authority since the coming into force of this section, and
(ii) to the substituted purposes, so far as relating to National Parks in the case of which the National Park authority has become the local planning authority since the coming into force of this section.
(5) In subsection (4) above—
“original purposes” means the purposes specified in subsection (1) of section 5 of that Act, as originally enacted;
“substituted purposes” means the purposes specified in that subsection as substituted by subsection (1) above.
62 Duty of certain bodies and persons to have regard to the purposes for which National Parks are designated.
(1) After section 11 of the National Parks and Access to the Countryside Act 1949 (general powers of local planning authorities in relation to National Parks) there shall be inserted—
Duty of certain bodies and persons to have regard to the purposes for which National Parks are designated.
11A (1) A National Park authority, in pursuing in relation to the National Park the purposes specified in subsection (1) of section five of this Act, shall seek to foster the economic and social well-being of local communities within the National Park, but without incurring significant expenditure in doing so, and shall for that purpose co-operate with local authorities and public bodies whose functions include the promotion of economic or social development within the area of the National Park.
(2) In exercising or performing any functions in relation to, or so as to affect, land in a National Park, any relevant authority shall have regard to the purposes specified in subsection (1) of section five of this Act and, if it appears that there is a conflict between those purposes, shall attach greater weight to the purpose of conserving and enhancing the natural beauty, wildlife and cultural heritage of the area comprised in the National Park.
(3) For the purposes of this section “relevant authority” means—
(a) any Minister of the Crown,
(b) any public body,
(c) any statutory undertaker, or
(d) any person holding public office.
(4) In subsection (3) of this section—
“public body” includes—
any local authority, joint board or joint committee;
any National Park authority;
“public office” means—
an office under Her Majesty;
an office created or continued in existence by a public general Act of Parliament; or
an office the remuneration in respect of which is paid out of money provided by Parliament.
(5) In subsection (4) of this section, “joint board” and “joint committee” mean—
(a) a joint or special planning board for a National Park reconstituted by order under paragraph 1 or 3 of Schedule 17 to the Local Government Act 1972, or a joint planning board within the Emeaning of section 2 of the Town and Country Planning Act 1990;
(b) a joint committee appointed under section 102(1)(b) of the Local Government Act 1972.
(6) In this section, “local authority”—
(a) in relation to England, means a county council, district council or parish council;
(b) in relation to Wales, means a county council, county borough council, district council or community council.
(2) The duty imposed by subsection (1) of the section 11A inserted by subsection (1) above shall take effect, in the case of any particular National Park, as from the time when a National Park authority becomes the local planning authority for that Park.
(1) The Secretary of State may—
(a) in the case of any National Park for which there is an existing authority, or
(b) in connection with the designation of any area as a new such Park,
by order establish an authority (to be known as “a National Park authority”) to carry out in relation to that Park the functions conferred on such an authority by or under this Part.
(2) An order under this section may provide, in relation to any National Park for which there is an existing authority—
(a) for the existing authority to cease to have any functions in relation to that Park as from the time when a National Park authority becomes the local planning authority for that Park;
(b) for such (if any) of the functions of the existing authority as, by virtue of this Part, are not as from that time to be functions of the National Park authority for that Park to become functions of the person on whom they would be conferred if the area in question were not in a National Park; and
(c) for the winding up of the existing authority and for that authority to cease to exist, or to be dissolved, as from such time as may be specified in the order.
(3) Subject to any order under subsection (4) below, where there is a variation of the area of a National Park for which there is or is to be a National Park authority, the Park for which that authority is or is to be the authority shall be deemed, as from the time when the variation takes effect, to be that area as varied.
(4) Where provision is made for the variation of the area of a National Park for which there is or is to be a National Park authority, the Secretary of State may by order make such transitional provision as he thinks fit with respect to—
(a) any functions which, in relation to any area that becomes part of the National Park, are by virtue of the variation to become functions of that authority; and
(b) any functions which, in relation to any area that ceases to be part of the National Park, are by virtue of the variation to become functions of a person other than that authority.
(5) Schedule 7 to this Act shall have effect with respect to National Park authorities.
(1) This Part so far as it relates to the establishment and functions of National Park authorities shall have effect for the purposes specified in section 5(1) of the National Parks and Access to the Countryside Act 1949 (purposes of conserving and enhancing the natural beauty, wildlife and cultural heritage of National Parks and of promoting opportunities for the understanding and enjoyment of the special qualities of those Parks by the public).
(2) Sections 37 and 38 of the Countryside Act 1968 (general duties as to the protection of interests of the countryside and the avoidance of pollution) shall apply to National Park authorities as they apply to local authorities.
(3) The functions of a National Park authority in the period (if any) between the time when it is established and the time when it becomes the local planning authority for the relevant Park shall be confined to the taking of such steps as the authority, after consultation with the Secretary of State and any existing authority for that Park, considers appropriate for securing that it is able properly to carry out its functions after that time.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) The powers of a National Park authority shall include power to do anything which, in the opinion of that authority, is calculated to facilitate, or is conducive or incidental to—
(a) the accomplishment of the purposes mentioned in subsection (1) above; or
(b) the carrying out of any functions conferred on it by virtue of any other enactment.
Paragraph (b) is subject to subsection (6A).
(6) The powers conferred on a National Park authority by subsection (5) above shall not include either—
(a) power to do anything in contravention of any restriction imposed by virtue of this Part in relation to any express power of the authority; or
(b) a power to raise money (whether by borrowing or otherwise) in a manner which is not authorised apart from that subsection;
but the things that may be done in exercise of those powers shall not be treated as excluding anything by reason only that it involves the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights.
(6A) Subsection (5)(b) does not apply in relation to a National Park authority for a National Park in England (see instead section 65A for general powers of such authorities).
(7) Schedule 8 to this Act shall have effect with respect to the supplemental and incidental powers of a National Park authority.
65A English National Park authorities: general powers
(1) An English National Park authority may do—
(a) anything it considers appropriate for the purposes of the carrying out of any of its functions (its “functional purposes”),
(b) anything it considers appropriate for purposes incidental (whether directly or indirectly) to its functional purposes,
(c) anything it considers to be connected with—
(i) any of its functions, or
(ii) anything it may do under paragraph (a) or (b), and
(d) for a commercial purpose, anything which it may do under any of paragraphs (a) to (c) otherwise than for a commercial purpose.
(2) Where subsection (1) confers power on an English National Park authority to do something, it confers power (subject to section 65B) to do it anywhere in the United Kingdom or elsewhere.
(3) Power conferred on an English National Park authority by subsection (1) is in addition to, and is not limited by, the other powers of the authority.
(4) In this section, and in sections 65B and 65C, “English National Park authority” means a National Park authority for a National Park in England.
(1) Section 65A(1) does not enable an English National Park authority to do anything which it is unable to do by virtue of a pre-commencement limitation.
(2) Section 65A(1) does not enable an English National Park authority to do anything which it is unable to do by virtue of a post-commencement limitation which is expressed to apply—
(a) to its power under section 65A(1),
(b) to all of its powers, or
(c) to all of its powers but with exceptions that do not include its power under section 65A(1).
(3) If exercise of a pre-commencement power of an English National Park authority is subject to restrictions, those restrictions apply also to exercise of the power conferred on it by section 65A(1) so far as that power is overlapped by the pre-commencement power.
(4) Section 65A(1) does not authorise an English National Park authority to borrow money.
(5) Section 65A(1)(a) to (c) do not authorise an English National Park authority to charge a person for anything it does otherwise than for a commercial purpose.
(6) Section 65A(1)(d) does not authorise an English National Park authority to do things for a commercial purpose in relation to a person if a statutory provision requires the authority to do those things in relation to the person.
(7) Where under section 65A(1)(d) an English National Park authority does things for a commercial purpose, it must do them through—
(a) a company within the meaning given by section 1(1) of the Companies Act 2006, or
(b) a registered society within the meaning of the Co-operative and Community Benefit Societies Act 2014.
(8) In this section—
“post-commencement limitation” means a prohibition, restriction or other limitation imposed by a statutory provision that—
is contained in an Act passed after the end of the Session in which the Cities and Local Government Devolution Act 2016 is passed, or
is contained in an instrument made under an Act and comes into force on or after the commencement of section 22 of that 2016 Act;
“pre-commencement limitation” means a prohibition, restriction or other limitation imposed by a statutory provision that—
is contained in an Act passed no later than the end of the Session in which the Cities and Local Government Devolution Act 2016 is passed, or
is contained in an instrument made under an Act and comes into force before the commencement of section 22 of that 2016 Act;
“pre-commencement power” means power conferred by a statutory provision that—
is contained in an Act passed no later than the end of the Session in which the Cities and Local Government Devolution Act 2016 is passed, or
is contained in an instrument made under an Act and comes into force before the commencement of section 22 of that 2016 Act;
“statutory provision” means a provision of an Act or of an instrument made under an Act.
65C Power to make provision supplemental to section 65A
(1) The Secretary of State may by regulations make provision preventing an English National Park authority from doing under section 65A(1) anything which is specified, or is of a description specified, in the regulations.
(2) The Secretary of State may by regulations provide for the exercise by English National Park authorities of the power conferred by section 65A(1) to be subject to conditions, whether generally or in relation to doing anything specified, or of a description specified, in the regulations.
(3) Before making regulations under subsection (1) or (2) the Secretary of State must consult—
(a) such representatives of English National Park authorities, and
(b) such other persons (if any),
as the Secretary of State considers appropriate.
(4) Subsection (3) does not apply to regulations under subsection (1) or (2) which are made only for the purpose of amending earlier such regulations—
(a) so as to extend the earlier regulations, or any provision of the earlier regulations, to English National Park authorities, or
(b) so that the earlier regulations, or any provision of the earlier regulations, cease to apply English National Park authorities.
65D Procedure etc for regulations under section 65C
(1) The power to make regulations under section 65C—
(a) is exercisable by statutory instrument;
(b) includes power to make different provision for different purposes;
(c) includes power to make incidental, supplementary, consequential, transitional, transitory or saving provision;
(d) may, in particular, be exercised by amending, repealing, revoking or otherwise modifying any provision made by or under an Act passed before the Cities and Local Government Devolution Act 2016 or in the same Session as that Act.
(2) A statutory instrument containing regulations under section 65C may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(3) Subsection (2) does not apply to a statutory instrument that contains regulations only of the following kind—
(a) regulations under section 65C(1) that make provision for the purpose mentioned in section 65C(4)(b);
(b) regulations under section 65C(2) that make provision for that purpose or for imposing conditions on the doing of things for a commercial purpose;
(c) regulations made by virtue of subsection (1)(c) that do not contain provision amending or repealing a provision of an Act.
(4) A statutory instrument to which subsection (2) does not apply is subject to annulment by resolution of either House of Parliament.
(5) If a draft of regulations under section 65C would, apart from this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not a hybrid instrument.
(1) Subject to subsection (2) below, every National Park authority shall, within three years after its operational date, prepare and publish a plan, to be known as a National Park Management Plan, which formulates its policy for the management of the relevant Park and for the carrying out of its functions in relation to that Park.
(2) A National Park authority for a Park wholly or mainly comprising any area which, immediately before the authority’s operational date, was or was included in an area for which there was a National Park Plan prepared and published under paragraph 18 of Schedule 17 to the 1972 Act (National Park plans) shall not be required to prepare a Management Plan under subsection (1) above if, within six months of that date, it adopts the existing National Park Plan as its Management Plan and publishes notice that it has done so.
(3) Where a National Park authority is proposing to adopt a plan under subsection (2) above, it may review the plan before adopting it and shall do so if the plan would have fallen to be reviewed under paragraph 18 of Schedule 17 to the 1972 Act in the period of twelve months beginning with the authority’s operational date.
(4) A National Park authority shall review its National Park Management Plan within the period of five years of its operational date and, after the first review, at intervals of not more than five years.
(5) Where a National Park authority has adopted a plan under subsection (2) above as its National Park Management Plan and has not reviewed that Plan before adopting it, the first review of that Plan under subsection (4) above shall take place no later than the time when the adopted plan would otherwise have fallen to be reviewed under paragraph 18 of Schedule 17 to the 1972 Act.
(6) Where a National Park authority reviews any plan under this section, it shall—
(a) determine on that review whether it would be expedient to amend the plan and what (if any) amendments would be appropriate;
(b) make any amendments that it considers appropriate; and
(c) publish a report on the review specifying any amendments made.
(7) A National Park authority which is proposing to publish, adopt or review any plan under this section shall—
(a) give notice of the proposal to every principal council and corporate joint committee whose area is wholly or partly comprised in the relevant Park and, according to whether that Park is in England or in Wales, to Natural England or to the Natural Resources Body for Wales;
(b) send a copy of the plan, together (where appropriate) with any proposed amendments of the plan, to every body to which notice of the proposal is required to be given by paragraph (a) above; and
(c) take into consideration any observations made by any such body.
(7A) A National Park authority for a park in Wales which is proposing to publish, adopt or review any plan under this section must have regard to—
(a) the state of natural resources report published under section 8 of the Environment (Wales) Act 2016, ...
(b) any area statement published under section 11 of that Act for an area that includes all or part of the park , and
(c) the sustainable land management report published under section 6 of the Agriculture (Wales) Act 2023
(8) A National Park authority shall send to the Secretary of State a copy of every plan, notice or report which it is required to publish under this section.
(9) In this section “operational date”, in relation to a National Park authority, means the date on which the authority becomes the local planning authority for the relevant Park.
(10) In this section “corporate joint committee” means a corporate joint committee to which Part 6 of the Planning and Compulsory Purchase Act 2004 applies by virtue of regulations under Part 5 of the Local Government and Elections (Wales) Act 2021.
66A National Park Management Plans (England): further provision
(1) The Secretary of State may by regulations make provision—
(a) requiring a National Park Management Plan for a park in England to contribute to the meeting of any target set under Chapter 1 of Part 1 of the Environment Act 2021;
(b) setting out how such a Management Plan must contribute to the meeting of such targets;
(c) setting out how such a Management Plan must further the purposes specified in section 5(1) of the National Parks and Access to the Countryside Act 1949.
(2) The Secretary of State may by regulations make provision—
(a) requiring a relevant authority other than a devolved Welsh authority to contribute to the preparation, implementation or review of a National Park Management Plan for a park in England;
(b) setting out how such a relevant authority may or must do so.
(3) In this section—
“devolved Welsh authority” has the same meaning as in the Government of Wales Act 2006 (see, in particular, section 157A of that Act);
“relevant authority” has the same meaning as in section 11A of the National Parks and Access to the Countryside Act 1949.