Environment Act 1995 (c. 25)

(The document as of February, 2008)

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25 Assessing flood risk

(1) Without prejudice to section 92 of the [1970 c. 40.] Agriculture Act 1970 (provision of flood warning systems), SEPA shall have the function of assessing, as far as it considers it appropriate, the risk of flooding in any area of Scotland.

(2) If requested by a planning authority to do so, SEPA shall, on the basis of such information as it holds with respect to the risk of flooding in any part of the authority's area, provide the authority with advice as to such risk.

26 Power of SEPA to purchase land compulsorily

(1) The Secretary of State may authorise SEPA, for the purpose of any of its functions, to purchase land compulsorily.

(2) The [1947 c. 42.] Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 shall apply in relation to the compulsory purchase of land under this section as if this section had been in force immediately before the commencement of that Act and, in relation to such purchase of land, SEPA shall be treated as if it were a local authority within the meaning of that Act.

27 Power of SEPA to obtain information about land

(1) Where, with a view to performing a function conferred on it by any enactment, SEPA considers that it ought to have information connected with any land, it may serve on one or more of the persons mentioned in subsection (2) below a notice--

(a) specifying the land, the function and the enactment; and

(b) requiring the recipient of the notice to furnish to SEPA, within such period of not less than 14 days from the date of service of the notice as is specified in the notice--

(i) the nature of his interest in the land; and

(ii) the name and address of each person whom he believes is, as respects the land, a person mentioned in subsection (2) below.

(2) The persons referred to in subsection (1) above are--

(a) the occupier of the land;

(b) any person--

(i) who has an interest in the land as owner, creditor in a heritable security or lessee; or

(ii) who directly or indirectly receives rent for the land; and

(c) any person who, in pursuance of an agreement between himself and a person interested in the land, is authorised to manage the land or to arrange for the letting of it.

(3) A person who--

(a) fails to comply with the requirements of a notice served on him in pursuance of subsection (1) above; or

(b) in furnishing any information in compliance with such a notice makes a statement which he knows to be false in a material particular or recklessly makes a statement which is false in a material particular,

shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

28 Power of SEPA to promote or oppose private legislation

(1) SEPA may, where it is satisfied that it is expedient to do so--

(a) with the consent of the Secretary of State, petition for the issue of a provisional order under the [1936 c. 52.] Private Legislation Procedure (Scotland) Act 1936; or

(b) oppose any private legislation in Parliament.

(2) An application for the consent mentioned in paragraph (a) of subsection (1) above shall be accompanied by a concise summary of the purposes of the order petitioned for.

(3) In paragraph (b) of subsection (1) above, "private legislation in Parliament" includes--

(a) a provisional order and a Confirmation Bill relating to such an order; and

(b) any local or personal Bill.

29 Procedure relating to making of byelaws

The following provisions of the [1973 c. 65.] Local Government (Scotland) Act 1973--

(a) section 202 (procedure etc. for byelaws);

(b) section 202C (revocation of byelaws);

shall apply in relation to SEPA as they apply in relation to a local authority, provided that in the application of the said section 202 to SEPA for subsection (13) there shall be substituted--

" (13) The Scottish Environment Protection Agency shall send a copy of any byelaws made by it to the proper officer of the local authority for any area to the whole or any part of which the byelaws will apply. " .

30 Records held by SEPA

(1) Subject to subsection (3) below--

(a) this section applies to all records (in whatever form or medium)--

(i) transferred to and vested in SEPA by or under section 22 above;

(ii) created or acquired by it in the exercise of any of its functions; or

(iii) otherwise in its keeping;

(b) SEPA shall ensure that the records, other than such as are mentioned in paragraph (c) below, are preserved and managed in accordance with such arrangements as it, after consulting the Keeper of the Records of Scotland, shall put into effect;

(d) SEPA may from time to time revise the arrangements mentioned in paragraph (b) above but before making any material change to those arrangements shall consult the Keeper; and

(e) SEPA--

(i) shall secure that the Keeper has, at all reasonable hours, unrestricted access to the records preserved by it;

(ii) may afford members of the public, free of charge or on payment of reasonable charges, facilities for inspecting and for obtaining copies or extracts from those records.

(2) Nothing in subsection (1)(e)(ii) above permits infringement of copyright or contravention of conditions subject to which records are in SEPA's keeping.

(3) Insofar as any provision of any enactment, being a provision which relates to records of a specific kind, is (but for this subsection) inconsistent with subsection (1) above, that subsection is subject to the provision in question.

General powers and duties

31 Guidance on sustainable development and other aims and objectives

(1) The Secretary of State shall from time to time give guidance to SEPA with respect to aims and objectives which he considers it appropriate for SEPA to pursue in the performance of its functions.

(2) The guidance given under subsection (1) above must include guidance with respect to the contribution which, having regard to SEPA's responsibilities and resources, the Secretary of State considers it appropriate for SEPA to make, by the performance of its functions, towards attaining the objective of achieving sustainable development.

(3) In performing its functions, SEPA shall have regard to guidance given under this section.

(4) The power to give guidance to SEPA under this section shall be exercisable only after consultation with SEPA and such other bodies or persons as the Secretary of State considers it appropriate to consult in relation to the guidance in question.

(5) A draft of any guidance proposed to be given under this section shall be laid before each House of Parliament and the guidance shall not be given 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.

(6) If, within the period mentioned in subsection (5) above, either House resolves that the guidance, the draft of which was laid before it, should not be given, the Secretary of State shall not give that guidance.

(7) In reckoning any period of 40 days for the purposes of subsection (5) or (6) 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.

(8) The Secretary of State shall arrange for any guidance given under this section to be published in such manner as he considers appropriate.

32 General environmental and recreational duties

(1) It shall be the duty of the Secretary of State and of SEPA, in formulating or considering any proposals relating to any functions of SEPA--

(a) to have regard to the desirability of conserving and enhancing the natural heritage of Scotland;

(b) to have regard to the desirability of protecting and conserving buildings, sites and objects of archaeological, architectural, engineering or historic interest;

(c) to take into account any effect which the proposals would have on the natural heritage of Scotland or on any such buildings, sites or objects; and

(d) to have regard to the social and economic needs of any area or description of area of Scotland and, in particular, to such needs of rural areas.

(2) Subject to subsection (1) above, it shall be the duty of the Secretary of State and of SEPA, in formulating or considering any proposals relating to any functions of SEPA--

(a) to have regard to the desirability of preserving for the public any freedom of access (including access for recreational purposes) to areas of forest, woodland, mountains, moor, bog, cliff, foreshore, loch or reservoir and other places of natural beauty;

(b) to have regard to the desirability of maintaining the availability to the public of any facility for visiting or inspecting any building, site or object of archaeological, architectural, engineering or historic interest; and

(c) to take into account any effect which the proposals would have on any such freedom of access or on the availability of any such facility.

(3) In this section--

"building" includes structure; and
"the natural heritage of Scotland" has the same meaning as in section 1(3) of the [1991 c. 28.] Natural Heritage (Scotland) Act 1991.

33 General duties with respect to pollution control

(1) SEPA's pollution control powers shall be exercisable for the purpose of preventing or minimising, or remedying or mitigating the effects of, pollution of the environment.

(2) SEPA shall, for the purpose--

(a) of facilitating the carrying out of its pollution control functions; or

(b) of enabling it to form an opinion of the general state of pollution of the environment,

compile information relating to such pollution (whether the information is acquired by SEPA carrying out observations or is obtained in any other way).

(3) If required by the Secretary of State to do so, SEPA shall--

(a) carry out assessments (whether generally or for such particular purpose as may be specified in the requirement) of the effect, or likely effect, on the environment of existing or potential levels of pollution of the environment and report its findings to the Secretary of State; or

(b) prepare and send to the Secretary of State a report identifying--

(i) the options which SEPA considers to be available for preventing or minimising, or remedying or mitigating the effects of, pollution of the environment, whether generally or in cases or circumstances specified in the requirement; and

(ii) the costs and benefits of such options as are identified by SEPA pursuant to sub-paragraph (i) above.

(4) SEPA shall follow developments in technology and techniques for preventing or minimising, or remedying or mitigating the effects of, pollution of the environment.

(5) In this section, "pollution control powers" and "pollution control functions" in relation to SEPA, mean respectively its powers or its functions under or by virtue of--

(a) the [1906 c. 14.] Alkali, &c. Works Regulation Act 1906;

(b) Part III of the 1951 Act, the [1965 c. 13.] Rivers (Prevention of Pollution) (Scotland) Act 1965 and Parts I, IA and II of the [1974 c. 40.] Control of Pollution Act 1974;

(d) the [1989 c. 14.] Control of Pollution (Amendment) Act 1989;

(e) Parts I, II and IIA of the 1990 Act;

(f) section 19 of the [1993 c. 11.] Clean Air Act 1993;

(g) the [1993 c. 12.] Radioactive Substances Act 1993; and

(h) regulations made by virtue of section 2(2) of the [1972 c. 68.] European Communities Act 1972, to the extent that the regulations relate to pollution.

34 General duties with respect to water

(1) It shall be the duty of SEPA--

(a) to promote the cleanliness of--

(i) rivers, other inland waters and ground waters in Scotland; and

(ii) the tidal waters of Scotland; and

(b) to conserve so far as practicable the water resources of Scotland.

(2) Without prejudice to section 32 above, it shall be the duty of SEPA, to such extent as it considers desirable, generally to promote--

(a) the conservation and enhancement of the natural beauty and amenity of inland and coastal waters and of land associated with such waters; and

(b) the conservation of flora and fauna which are dependent on an aquatic environment.

(3) Subsection (1) above is without prejudice to section 1 of the [1980 c. 45.] Water (Scotland) Act 1980 (general duties of Secretary of State and water authorities as respects water resources and supplies).

(4) In subsection (1) above, "tidal waters" means any part of the sea or the tidal part of any river, watercourse or inland water (whether natural or artificial) and includes the waters of any enclosed dock which adjoins tidal waters.

35 Environmental duties as respects Natural Heritage Areas and sites of special interest

(1) Where an area of land--

(a) has been designated, under section 6(2) of the [1991 c. 28.] Natural Heritage (Scotland) Act 1991 (in this section referred to as "the 1991 Act") as a Natural Heritage Area; or

(b) is, in the opinion of Scottish Natural Heritage (in this section referred to as "SNH"), of special interest by reason of its flora, fauna or geological or physiographical features,

and SNH consider that it may at any time be affected by schemes, works, operations or activities of SEPA or by an authorisation given by SEPA, SNH shall give notice to SEPA in accordance with subsection (2) below.

(2) A notice under subsection (1) above shall specify--

(a) in the case of an area of land mentioned in paragraph (a) of that subsection, SNH's reasons for considering that the area is of outstanding value to the natural heritage of Scotland; and

(b) in the case of an area of land mentioned in paragraph (b) of that subsection, SNH's reasons for holding the opinion there mentioned.

(3) Where SNH has given notice under subsection (1) above in respect of an area of land and--

(a) in the case of an area of land mentioned in paragraph (a) of that subsection, the designation is cancelled or varied under section 6(7) of the 1991 Act; or

(b) in the case of an area of land mentioned in paragraph (b) of that subsection, SNH ceases to be of the opinion there mentioned,

SNH shall forthwith notify SEPA of that fact.

(4) Where SEPA has received notice under subsection (1) above with respect to any area of land, it shall (unless SNH has given notice under subsection (3) above with respect to the land) consult SNH before carrying out or authorising any schemes, works, operations or activities which appear to SEPA to be likely--

(a) in the case of an area of land mentioned in subsection (1)(a), significantly to prejudice the value of the land, or any part of it, as a Natural Heritage Area; and

(b) in the case of an area of land mentioned in subsection (1)(b), to destroy or damage any of the flora or fauna or features by reason of which SNH formed the opinion there mentioned.

(5) Subsection (4) above shall not apply in relation to anything done in an emergency if particulars of what is done and of the emergency are notified by SEPA to SNH as soon as practicable after the thing is done.

(6) In this section, "authorisation" includes any consent, licence or permission.

(7) Any expression used in this section and in Part I of the 1991 Act and not defined in this Act shall be construed in accordance with that Part.

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 35 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 35 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;

(d) Highlands and Islands Enterprise;

(e) the East of Scotland Water Authority;

(f) the West of Scotland Water Authority;

(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.

Chapter III Miscellaneous, General and Supplemental Provisions Relating to the New Agencies

Additional general powers and duties

37 Incidental general functions

(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.

(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

(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;
"Minister of the Crown" has the same meaning as in the Ministers of the [1975 c. 26.] Crown Act 1975.

39 General duty of the new Agencies to have regard to costs and benefits in exercising powers

(1) Each new 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 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.

40 Ministerial directions to the new Agencies

(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 for the implementation of--

(a) any obligations of the United Kingdom under the Community Treaties, or

(b) 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 for the implementation of--

(a) any obligations of the United Kingdom under the Community Treaties, or

(b) 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.

Charging schemes

41 Power to make schemes imposing charges

(1) Subject to the following provisions of this section and section 42 below--

(a) in the case of any particular licence under Chapter II of Part II of the 1991 Act (abstraction and impounding), the 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 a new Agency such charges as may from time to time be prescribed; and

(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;

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 new Agency in question.

(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.

(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

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;

(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 a new Agency 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;

(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 the British Waterways Board).

(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.

(10) In this section--

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