Environment Act 1995 (c. 25)

(The document as of February, 2008)

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(7) In this section--

"prescribed" means prescribed in regulations made by the Secretary of State;
"relevant land" means--
(a)
any land or waters in relation to which the works notice in question requires, or may require, works or operations to be carried out; or
(b)
any land adjoining or adjacent to that land or those waters;
"works notice" means a works notice under section 161A above.

161C Appeals against works notices.

(1) A person on whom a works 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 to the Secretary of State.

(2) On any appeal under this section the Secretary of State--

(a) shall quash the notice, if he is satisfied that there is a material defect in the notice; but

(b) subject to that, may confirm the notice, with or without modification, or quash it.

(3) The Secretary of State may by regulations 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.

(4) Regulations under subsection (3) above may (among other things)--

(a) include provisions comparable to those in section 290 of the [1936 c. 49.] Public Health Act 1936 (appeals against notices requiring the execution of works);

(b) prescribe the cases in which a works 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 works notice against which he is appealing;

(d) prescribe the cases in which the appellant may claim that a works 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; or

(iii) the abandonment of an appeal.

(5) In this section "works notice" means a works notice under section 161A above.

(6) This section is subject to section 114 of the 1995 Act (delegation or reference of appeals).

161D Consequences of not complying with a works notice.

(1) If a person on whom the Agency serves a works notice fails to comply with any of the requirements of the notice, he shall be guilty of an offence.

(2) A person who commits an offence under subsection (1) above shall be liable--

(a) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding £20,000 or to both;

(b) on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both.

(3) If a person on whom a works notice has been served fails to comply with any of the requirements of the notice, the Agency may do what that person was required to do and may recover from him any costs or expenses reasonably incurred by the Agency in doing it.

(4) If the Agency is of the opinion that proceedings for an offence under subsection (1) above would afford an ineffectual remedy against a person who has failed to comply with the requirements of a works notice, the Agency may take proceedings in the High Court for the purpose of securing compliance with the notice.

(5) In this section "works notice" means a works notice under section 161A above. "

163 In section 162 of that Act (other powers to deal with foul water or pollution) in subsection (1) (which refers to section 161 of that Act) for the words "section 161" there shall be substituted the words "sections 161 to 161D".

164 In section 166 of that Act (power to carry out works for purposes of flood warning system) in subsection (1) (which is expressed to be without prejudice to the Agency's other powers by virtue of section 4) for the words "section 4 above" there shall be substituted the words "section 37 of the 1995 Act (incidental general powers of the Agency)".

165 In section 169 of that Act (powers of entry for enforcement purposes) at the beginning of subsection (3) there shall be inserted the words "Subject to subsection (4) below," and after that subsection there shall be added--

" (4) The powers conferred by this section shall not have effect for the purposes of any of the Agency's pollution control functions, within the meaning of section 108 of the 1995 Act. "

166 In section 172 of that Act (powers of entry for other purposes) at the beginning of subsection (3) there shall be inserted the words "Subject to subsection (3A) below," and after that subsection there shall be added--

" (3A) The powers conferred by this section shall not have effect for the purposes of any of the Agency's pollution control functions, within the meaning of section 108 of the 1995 Act. "

167 In section 174 of that Act (impersonation of persons exercising powers of entry) in subsection (1) (which creates a summary offence punishable by a fine not exceeding level 4) for the words from "liable, on summary conviction," onwards there shall be substituted the words " liable--

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both. "

168 Section 187 of that Act (annual report of the Authority) shall cease to have effect.

169 (1) Section 190 of that Act (pollution control register) shall be amended in accordance with the following provisions of this paragraph.

(2) In subsection (1) (which requires a register to be kept containing prescribed particulars of the items there specified) after the words "prescribed particulars of" there shall be inserted the words "or relating to".

(3) Paragraph (d) of that subsection (which relates to certificates under paragraph 1(7) of Schedule 10) shall be omitted.

(4) Paragraph (f) of that subsection, and the word "and" immediately preceding it, shall be omitted and at the end of that subsection there shall be added--

" (g) applications made to the Agency for the variation of discharge consents;

(h) enforcement notices served under section 90B above;

(j) revocations, under paragraph 7 of Schedule 10 to this Act, of discharge consents;

(k) appeals under section 91 above;

(l) directions given by the Secretary of State in relation to the Agency's functions under the water pollution provisions of this Act;

(m) convictions, for offences under Part III of this Act, of persons who have the benefit of discharge consents;

(n) information obtained or furnished in pursuance of conditions of discharge consents;

(o) works notices under section 161A above;

(p) appeals under section 161C above;

(q) convictions for offences under section 161D above;

(r) such other matters relating to the quality of water or the pollution of water as may be prescribed by the Secretary of State.

(1A) Where information of any description is excluded from any register by virtue of section 191B below, a statement shall be entered in the register indicating the existence of information of that description. "

(5) In subsection (2) (registers to be available for inspection by, and facilities for obtaining copies of entries to be afforded to, the public) after paragraph (b) there shall be added the words-- " 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. "

(6) After subsection (3) there shall be added--

" (4) The Secretary of State may give to the Agency directions requiring the removal from any register maintained by it under this section of any specified information which is not prescribed for inclusion under subsection (1) above or which, by virtue of section 191A or 191B below, ought to have been excluded from the register.

(5) In this section "discharge consent" has the same meaning as in section 91 above. "

170 After section 191 of that Act (register for the purposes of works discharges) there shall be inserted--

" 191A Exclusion from registers of information affecting national security.

(1) No information shall be included in a register kept or maintained by the Agency under any provision of this Act if and so long as, in the opinion of the Secretary of State, the inclusion in such a 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 the Agency 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 Agency shall notify the Secretary of State of any information it excludes from a 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 Agency 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.

191B Exclusion from registers of certain confidential information.

(1) No information relating to the affairs of any individual or business shall, without the consent of that individual or the person for the time being carrying on that business, be included in a register kept or maintained by the Agency under any provision of this Act, 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 Agency or, on appeal, by the Secretary of State.

(2) Where information is furnished to the Agency for the purpose of--

(a) an application for a discharge consent or for the variation of a discharge consent,

(b) complying with any condition of a discharge consent, or

then, if the person furnishing it applies to the Agency to have the information excluded from any register kept or maintained by the Agency under any provision of this Act, on the ground that it is commercially confidential (as regards himself or another person), the Agency shall determine whether the information is or is not commercially confidential.

(3) A determination under subsection (2) above must be made within the period of fourteen days beginning with the date of the application and if the Agency fails to make a determination within that period it shall be treated as having determined that the information is commercially confidential.

(4) Where it appears to the Agency that any information (other than information furnished in circumstances within subsection (2) above) which has been obtained by the Agency under or by virtue of any provision of any enactment might be commercially confidential, the Agency shall--

(a) give to the person to whom or whose business it relates notice that that information is required to be included in a register kept or maintained by the Agency under any provision of this Act, 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 Agency for the purpose of justifying any such objection;

and, if any representations are made, the Agency shall, having taken the representations into account, determine whether the information is or is not commercially confidential.

(5) Where, under subsection (2) or (4) above, the Agency determines that information is not commercially confidential--

(a) the information shall not be entered on 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; and

(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 on the register until the end of the period of seven days following the day on which the appeal is finally determined or withdrawn.

(6) Subsections (2A), (2C) and (2K) of section 91 above shall apply in relation to appeals under subsection (5) above; but--

(a) subsection (2C) of that section shall have effect for the purposes of this subsection with the substitution for the words from "(which may" onwards of the words "(which must be held in private)"; and

(b) subsection (5) above is subject to section 114 of the 1995 Act (delegation or reference of appeals etc).

(7) The Secretary of State may give to the Agency directions as to specified information, or descriptions of information, which the public interest requires to be included in registers kept or maintained by the Agency under any provision of this Act 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 Agency for the information to remain excluded from the register on the ground that it is still commercially confidential and the Agency shall determine whether or not that is the case.

(9) Subsections (5) and (6) above shall apply in relation to a determination under subsection (8) above as they apply in relation to a determination under subsection (2) or (4) above.

(10) The Secretary of State may by regulations substitute (whether in all cases or in such classes or descriptions of case as may be specified in the regulations) for the period for the time being specified in subsection (3) above such other period as he considers appropriate.

(11) 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.

(12) In this section "discharge consent" has the same meaning as in section 91 above. "

171 Section 196 of that Act (provision of information by the Authority to Ministers) shall cease to have effect.

172 (1) In section 202 of that Act (information and assistance required in connection with the control of pollution) in subsection (4) (which creates a summary offence punishable by a fine not exceeding level 5 on the standard scale) for the words from "liable, on summary conviction," onwards there shall be substituted the words " liable--

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both. "

(2) Subsection (5) of that section (which is superseded in consequence of the amendment made by sub-paragraph (1) above) shall cease to have effect.

173 (1) Section 204 of that Act (restriction on disclosure of information with respect to any particular business) shall be amended in accordance with the following provisions of this paragraph.

(2) In subsection (2)(a) (exception for disclosure of information for purposes of functions under certain enactments)--

(a) for the words "the Authority" there shall be substituted the words "the Agency, the Scottish Environment Protection Agency"; and

(b) for the words "or the Water Act 1989" there shall be substituted the words ", the [1989 c. 15.] Water Act 1989, Part I or IIA of the [1989 c. 15.] Environmental Protection Act 1990 or the 1995 Act".

(3) In subsection (3), in paragraph (a) (which provides that nothing in subsection (1) shall limit the matters which may be included in reports made by specified bodies under specified enactments)--

(a) after sub-paragraph (i), there shall be inserted--

" (ia) the Scottish Environment Protection Agency; " ; and

(b) for the words "or that Act of 1991" there shall be substituted the words ", Part I or IIA of the [1990 c. 43.] Environmental Protection Act 1990, that Act of 1991 or the 1995 Act".

(4) In paragraph (b) of that subsection, after the words "that Act" there shall be inserted the words "of 1991".

174 Sections 213 to 215 of that Act (local inquiries) shall cease to have effect.

175 Section 218 of that Act (no judicial disqualification by virtue of liability to pay charges to the Authority) shall cease to have effect.

176 In section 219 of that Act (powers to make regulations)--

(a) in subsection (2), the words "Subject to subsection (3) below,", and

(b) subsection (3) (which restricts certain powers to make regulations),

shall cease to have effect.

177 (1) Section 221(1) of that Act (general interpretation) shall be amended in accordance with the following provisions of this paragraph.

(2) Before the definition of "abstraction" there shall be inserted--

" "the 1995 Act" means the Environment Act 1995; " .

(3) After the definition of "accessories" there shall be inserted--

" "the Agency" means the Environment Agency; " .

(4) The definition of "the Authority" shall be omitted.

(5) The definition of "constituent council" shall be omitted.

(6) After the definition of "enactment" there shall be inserted--

" "enforcement notice" has the meaning given by section 90B above; " .

(7) For the definition of "flood defence functions" there shall be substituted--

" "flood defence functions", in relation to the Agency, means--

(a) its functions with respect to flood defence and land drainage by virtue of Part IV of this Act, the [1991 c. 59.] Land Drainage Act 1991 and section 6 of the 1995 Act;

(b) those functions transferred to the Agency by section 2(1)(a)(iii) of the 1995 Act which were previously transferred to the Authority by virtue of section 136(8) of the [1989 c. 15.] Water Act 1989 and paragraph 1(3) of Schedule 15 to that Act (transfer of land drainage functions under local statutory provisions and subordinate legislation); and

(8) For the definition of "flood defence provisions" there shall be substituted--

" "flood defence provisions", in relation to this Act, means--

(a) any of the following provisions of this Act, that is to say--

(i)

Part IV;

(ii)

sections 133 to 141 (including Schedule 15), 143, 147 to 149, 155, 165 to 167, 180, 193, 194 and paragraph 5 of Schedule 25;

(b) any of the following provisions of the 1995 Act, that is to say--

(i)

section 6(4) (general supervision of flood defence);

(ii)

section 53 (inquiries and other hearings); and

(iii)

Schedule 5 (membership and proceedings of regional and local flood defence committees); and

(c) any other provision of this Act or the 1995 Act so far as it relates to a provision falling within paragraph (a) or (b) above; " .

(9) For the definition of "the related water resources provisions" there shall be substituted--

" "the related water resources provisions", in relation to Chapter II of Part II of this Act, means--

(a) the following provisions of this Act, that is to say, the provisions--

(i)

of sections 21 to 23 (including Schedule 5);

(ii)

of sections 120, 125 to 130, 158, 189, 199 to 201, 206(3), 209(3), 211(1) and 216; and

(iii)

of paragraph 1 of Schedule 25; and

(b) the following provisions of the 1995 Act, that is to say, the provisions--

(i)

of sections 41 and 42 (charging schemes) as they have effect by virtue of subsection (1)(a) of section 41 (licences under Chapter II of Part II of this Act); and

(ii)

of subsections (1) and (2) of section 53 (inquiries and other hearings); " .

(10) In the definition of "water pollution provisions"--

(a) in paragraph (b)--

(i) after the words "161" there shall be inserted the words "to 161D"; and

(ii) for the words "203 and 213(2) above" there shall be substituted the words "and 203"; and

(b) after paragraph (c), there shall be added the words-- " and the following provisions of the 1995 Act, that is to say, the provisions of subsections (1) and (2) of section 53. "

178 Schedule 1 to that Act (the National Rivers Authority) shall cease to have effect.

179 Schedules 3 and 4 to that Act (boundaries of regional flood defence areas and membership and proceedings of regional and local flood defence committees) shall cease to have effect.

180 In Schedule 5 to that Act (procedure relating to statements on minimum acceptable flow) in paragraph 2(3)(g) (copy of notice to be served on person authorised by a licence under Part I of the [1989 c. 29.] Electricity Act 1989 to generate electricity) after the words "to generate electricity" there shall be added the words "who has a right to abstract water from any such waters or related inland waters".

181 In Schedule 6 to that Act (orders providing for exemption from restrictions on abstraction) in paragraph 1(4)(h) (copy of notice to be served on person authorised by a licence under Part I of the Electricity Act 1989 to generate electricity) after the words "to generate electricity" there shall be added the words "who has a right to abstract water from any such source of supply or related inland waters".

182 In Schedule 10 to that Act (discharge consents) after paragraph 7 (restriction on variation and revocation of consent and previous variation) there shall be added--

" General review of consents

8 (1) If it appears appropriate to the Secretary of State to do so he may at any time direct the Authority to review--

(a) the consents given under paragraphs 2 and 5 above, or

(b) any description of such consents,

and the conditions (if any) to which those consents are subject.

(2) A direction given by virtue of sub-paragraph (1) above--

(a) shall specify the purpose for which, and

(b) may specify the manner in which,

the review is to be conducted.

(3) After carrying out a review pursuant to a direction given by virtue of sub-paragraph (1) above, the Authority shall submit to the Secretary of State its proposals (if any) for--

(a) the modification of the conditions of any consent reviewed pursuant to the direction, or

(b) in the case of any unconditional consent reviewed pursuant to the direction, subjecting the consent to conditions.

(4) Where the Secretary of State has received any proposals from the Authority under sub-paragraph (3) above in relation to any consent he may, if it appears appropriate to him to do so, direct the Authority to do, in relation to that consent, anything mentioned in paragraph 6(2)(b) or (c) above.

(5) A direction given by virtue of sub-paragraph (4) above may only direct the Authority to do, in relation to any consent,--

(a) any such thing as the Authority has proposed should be done in relation to that consent, or

(b) any such thing with such modifications as appear to the Secretary of State to be appropriate. "

183 For that Schedule there shall be substituted--

" Schedule 10 Discharge consents

Application for consent

1 (1) An application for a consent, for the purposes of section 88(1)(a) of this Act, for any discharges--

(a) shall be made to the Agency on a form provided for the purpose by the Agency; and

(b) must be advertised by or on behalf of the applicant in such manner as may be required by regulations made by the Secretary of State.

(2) Regulations made by the Secretary of State may make provision for enabling the Agency to direct or determine that any such advertising of an application as is required under sub-paragraph (1)(b) above may, in any case, be dispensed with if, in that case, it appears to the Agency to be appropriate for that advertising to be dispensed with.

(3) The applicant for such a consent must provide to the Agency, either on, or together with, the form mentioned in sub-paragraph (1) above--

(a) such information as the Agency may reasonably require; and

(b) such information as may be prescribed for the purpose by the Secretary of State;

but, subject to paragraph 3(3) below and without prejudice to the effect (if any) of any other contravention of the requirements of this Schedule in relation to an application under this paragraph, a failure to provide information in pursuance of this sub-paragraph shall not invalidate an application.

(4) The Agency may give the applicant notice requiring him to provide it with such further information of any description specified in the notice as it may require for the purpose of determining the application.

(5) An application made in accordance with this paragraph which relates to proposed discharges at two or more places may be treated by the Agency as separate applications for consents for discharges at each of those places.

Consultation in connection with applications

2 (1) Subject to sub-paragraph (2) below, the Agency shall give notice of any application under paragraph 1 above, together with a copy of the application, to the persons who are prescribed or directed to be consulted under this paragraph and shall do so within the specified period for notification.

(2) The Secretary of State may, by regulations, exempt any class of application from the requirements of this paragraph or exclude any class of information contained in applications from those requirements, in all cases or as respects specified classes only of persons to be consulted.

(3) Any representations made by the persons so consulted within the period allowed shall be considered by the Agency in determining the application.

(4) For the purposes of sub-paragraph (1) above--

(a) persons are prescribed to be consulted on any description of application if they are persons specified for the purposes of applications of that description in regulations made by the Secretary of State;

(b) persons are directed to be consulted on any particular application if the Secretary of State specifies them in a direction given to the Agency;

and the "specified period for notification" is the period specified in the regulations or in the direction.

(5) Any representations made by any other persons within the period allowed shall also be considered by the Agency in determining the application.

(6) Subject to sub-paragraph (7) below, the period allowed for making representations is--

(a) in the case of persons prescribed or directed to be consulted, the period of six weeks beginning with the date on which notice of the application was given under sub-paragraph (1) above, and

(b) in the case of other persons, the period of six weeks beginning with the date on which the making of the application was advertised in pursuance of paragraph 1(1)(b) above.

(7) The Secretary of State may, by regulations, substitute for any period for the time being specified in sub-paragraph (6)(a) or (b) above, such other period as he considers appropriate.

Consideration and determination of applications

3 (1) On an application under paragraph 1 above the Agency shall be under a duty, if the requirements--

(a) of that paragraph, and

(b) of any regulations made under paragraph 1 or 2 above or of any directions under paragraph 2 above,

are complied with, to consider whether to give the consent applied for, either unconditionally or subject to conditions, or to refuse it.

(2) Subject to the following provisions of this Schedule, on an application made in accordance with paragraph 1 above, the applicant may treat the consent applied for as having been refused if it is not given within the period of four months beginning with the day on which the application is received or within such longer period as may be agreed in writing between the Agency and the applicant.

(3) Where any person, having made an application to the Agency for a consent, has failed to comply with his obligation under paragraph 1(3) or (4) above to provide information to the Agency, the Agency may refuse to proceed with the application, or refuse to proceed with it until the information is provided.

(4) The conditions subject to which a consent may be given under this paragraph shall be such conditions as the Agency may think fit and, in particular, may include conditions--

(a) as to the places at which the discharges to which the consent relates may be made and as to the design and construction of any outlets for the discharges;

(b) as to the nature, origin, composition, temperature, volume and rate of the discharges and as to the periods during which the discharges may be made;

(c) as to the steps to be taken, in relation to the discharges or by way of subjecting any substance likely to affect the description of matter discharged to treatment or any other process, for minimising the polluting effects of the discharges on any controlled waters;

(d) as to the provision of facilities for taking samples of the matter discharged and, in particular, as to the provision, maintenance and use of manholes, inspection chambers, observation wells and boreholes in connection with the discharges;

(e) as to the provision, maintenance and testing of meters for measuring or recording the volume and rate of the discharges and apparatus for determining the nature, composition and temperature of the discharges;

(f) as to the keeping of records of the nature, origin, composition, temperature, volume and rate of the discharges and, in particular, of records of readings of meters and other recording apparatus provided in accordance with any other condition attached to the consent; and

(g) as to the making of returns and the giving of other information to the Authority about the nature, origin, composition, temperature, volume and rate of the discharges;

and it is hereby declared that a consent may be given under this paragraph subject to different conditions in respect of different periods.

(5) The Secretary of State may, by regulations, substitute for any period for the time being specified in sub-paragraph (2) above, such other period as he considers appropriate.

4 The Secretary of State may give the Agency a direction with respect to any particular application, or any description of applications, for consent under paragraph 1 above requiring the Agency not to determine or not to proceed with the application or applications of that description until the expiry of any such period as may be specified in the direction, or until directed by the Secretary of State that it may do so, as the case may be.

Reference to Secretary of State of certain applications for consent

5 (1) The Secretary of State may, either in consequence of representations or objections made to him or otherwise, direct the Agency to transmit to him for determination such applications for consent under paragraph 1 above as are specified in the direction or are of a description so specified.

(2) Where a direction is given to the Agency under this paragraph, the Agency shall comply with the direction and inform every applicant to whose application the direction relates of the transmission of his application to the Secretary of State.

(3) Paragraphs 1(1) and 2 above shall have effect in relation to an application transmitted to the Secretary of State under this paragraph with such modifications as may be prescribed.

(4) Where an application is transmitted to the Secretary of State under this paragraph, the Secretary of State may at any time after the application is transmitted and before it is granted or refused--

(a) cause a local inquiry to be held with respect to the application; or

(b) afford the applicant and the Agency an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

(5) The Secretary of State shall exercise his power under sub-paragraph (4) above in any case where a request to be heard with respect to the application is made to him in the prescribed manner by the applicant or by the Agency.

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