PART II continued
(4) The Secretary of State may by regulations make provision as to the procedure to be followed in connection with the taking of, and the dealing with, samples under subsection (3)(f) above.
(5) Where an inspector proposes to exercise the power conferred by subsection (3)(g) above in the case of an article or substance found on any premises, he shall, if so requested by a person who at the time is present on and has responsibilities in relation to those premises, cause anything which is to be done by virtue of that power to be done in the presence of that person.
(6) Before exercising the power conferred by subsection (3)(g) above in the case of any article or substance, an inspector shall consult such persons as appear to him appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which he proposes to do under the power.
(7) Where under the power conferred by subsection (3)(h) above an inspector takes possession of any article or substance found on any premises, he shall leave there, either with a responsible person or, if that is impracticable, fixed in a conspicuous position, a notice giving particulars of that article or substance sufficient to identify it and stating that he has taken possession of it under that power; and before taking possession of any such substance under that power an inspector shall, if it is practical for him to do so, take a sample of it and give to a responsible person at the premises a portion of the sample marked in a manner sufficient to identify it.
(8) No answer given by a person in pursuance of a requirement imposed under subsection (3)(i) above shall be admissible in evidence in England and Wales against that person in any proceedings or in Scotland against that person in any criminal proceedings.
(9) Any person who—
(a) fails, without reasonable excuse, to comply with any requirement imposed under this section;
(b) prevents any other person from appearing before or from answering any question to which an inspector may by virtue of subsection (3) above require an answer; or
(c) intentionally obstructs an inspector in the exercise or performance of his powers or duties;
shall be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.
(10) The powers conferred by subsection (3)(a), (c), (e) and (f) above shall also be exercisable by any person authorised for the purpose in writing by the Secretary of State.
(11) Nothing in this section shall be taken to compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court or, in relation to Scotland, on an order for the production of documents in an action in the Court of Session.
(1) Where, in the case of any article or substance found by him on any premises which he has power to enter, an inspector has reasonable cause to believe that, in the circumstances in which he finds it, the article or substance is a cause of imminent danger of serious pollution of the environment or serious harm to human health, he may seize it and cause it to be rendered harmless (whether by destruction or otherwise).
(2) Before there is rendered harmless under this section—
(a) any article that forms part of a batch of similar articles; or
(b) any substance,
the inspector shall, if it is practicable for him to do so, take a sample of it and give to a responsible person at the premises where the article or substance was found by him a portion of the sample marked in a manner sufficient to identify it.
(3) As soon as may be after any article or substance has been seized and rendered harmless under this section, the inspector shall prepare and sign a written report giving particulars of the circumstances in which the article or substance was seized and so dealt with by him, and shall—
(a) give a signed copy of the report to a responsible person at the premises where the article or substance was found by him; and
(b) unless that person is the owner of the article or substance, also serve a signed copy of the report on the owner;
and if, where paragraph (b) above applies, the inspector cannot after reasonable inquiry ascertain the name or address of the owner, the copy may be served on him by giving it to the person to whom a copy was given under paragraph (a) above.
(4) Any person who intentionally obstructs an inspector in the exercise of his powers under this section shall be 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.
(1) For the purpose of the discharge of his functions under this Part, the Secretary of State may, by notice in writing served on a waste regulation authority, require the authority to furnish such information about the discharge of its functions under this Part as he may require.
(2) For the purpose of the discharge of their respective functions under this Part—
(a) the Secretary of State, and
(b) a waste regulation authority,
may, by notice in writing served on him, require any person to furnish such information specified in the notice as the Secretary of State or the authority, as the case may be, reasonably considers he or it needs, in such form and within such period following service of the notice as is so specified.
(3) A person who—
(a) fails, without reasonable excuse, to comply with a requirement imposed under subsection (2) above; or
(b) in furnishing any information in compliance with such a requirement, makes any statement which he knows to be false or misleading in a material particular, or recklessly makes a statement which is false or misleading in a material particular;
shall be liable—
(i) on summary conviction, to a fine not exceeding the statutory maximum;
(ii) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both.
(1) If the Secretary of State is satisfied that a waste regulation authority has failed, in any respect, to discharge any function under this Part which it ought to have discharged, he may make an order declaring the authority to be in default.
(2) The failure to discharge any such function may be a failure in a class of case to which the function relates or a failure in a particular case.
(3) An order made under subsection (1) above which declares an authority to be in default may, for the purpose of remedying the default, direct the authority (“the defaulting authority”) to perform any function specified in the order (whether in relation to a class of case or a particular case) and may specify the manner in which and the time or times within which the function is to be performed by the authority.
(4) If the defaulting authority fails to comply with any direction contained in such an order the Secretary of State may, instead of enforcing the order by mandamus, make an order transferring to himself any function of the authority specified in the order, whether in relation to all the classes of case to which the function relates or to such of those classes or, as the case may be, such particular case as is specified in the order.
(5) Where any function of a defaulting authority is transferred under subsection (4) above, the amount of any expenses which the Secretary of State certifies were incurred by him in performing the function shall on demand be paid to him by the defaulting authority.
(6) Any expenses required to be paid by a defaulting authority under subsection (5) above shall be defrayed by the authority in like manner, and shall be debited to the like account, as if the functions had not been transferred and the expenses had been incurred by the authority in performing them.
(7) The Secretary of State may by order vary or revoke any order previously made by him under this section.
(8) An order transferring any functions of a defaulting authority may provide for the transfer to the Secretary of State of such of the property, rights, liabilities and obligations of the authority as he considers appropriate; and where such an order is revoked the Secretary of State may, by the revoking order or a subsequent order, make such provision as he considers appropriate with respect to the property, rights, liabilities and obligations held by him for the purposes of the transferred function.
(9) Any order under this section may include such incidental, supplemental and transitional provisions as the Secretary of State considers appropriate.
(10) This section shall not apply to Scotland.
(1) An appeal against any decision of a magistrates' court under this Part (other than a decision made in criminal proceedings) shall lie to the Crown Court at the instance of any party to the proceedings in which the decision was given if such an appeal does not lie to the Crown Court by virtue of any other enactment.
(2) In Scotland an appeal against any decision of the sheriff under this Part (other than a decision made in criminal proceedings) shall lie to the Court of Session at the instance of any party to the proceedings in which the decision was given if such an appeal does not lie to the Court of Session by virtue of any other enactment.
(3) Where a person appeals to the Crown Court or the Court of Session against a decision of a magistrates' court or the sheriff dismissing an appeal against any requirement imposed under this Part which was suspended pending determination of that appeal, the requirement shall again be suspended pending the determination of the appeal to the Crown Court or Court of Session.
(4) Where an appeal against a decision of any authority lies to a magistrates' court or to the sheriff by virtue of any provision of this Part, it shall be the duty of the authority to include in any document by which it notifies the decision to the person concerned a statement indicating that such an appeal lies and specifying the time within which it must be brought.
(5) Where on an appeal to any court against or arising out of a decision of any authority under this Part the court varies or reverses the decision it shall be the duty of the authority to act in accordance with the court’s decision.
(6) Where any damage is caused by waste which has been deposited in or on land, any person who deposited it, or knowingly caused or knowingly permitted it to be deposited, in either case so as to commit an offence under section 33(1) or 63(2) above, is liable for the damage except where the damage—
(a) was due wholly to the fault of the person who suffered it; or
(b) was suffered by a person who voluntarily accepted the risk of the damage being caused;
but without prejudice to any liability arising otherwise than under this subsection.
(7) The matters which may be proved by way of defence under section 33(7) above may be proved also by way of defence to an action brought under subsection (6) above.
(8) In subsection (6) above—
“damage” includes the death of, or injury to, any person (including any disease and any impairment of physical or mental condition); and
“fault” has the same meaning as in the [1945 c. 28.] Law Reform (Contributory Negligence) Act 1945.
(9) For the purposes of the following enactments—
(a) the [1976 c. 30.] Fatal Accidents Act 1976;
(b) the Law Reform (Contributory Negligence) Act 1945; and
(c) the [1980 c. 58.] Limitation Act 1980;
and for the purposes of any action of damages in Scotland arising out of the death of, or personal injury to, any person, any damage for which a person is liable under subsection (6) above shall be treated as due to his fault.
(1) The following provisions apply for the purposes of the discharge by a waste regulation authority of any function under this Part which requires the authority to determine whether a person is or is not a fit and proper person to hold a waste management licence.
(2) Whether a person is or is not a fit and proper person to hold a licence is to be determined by reference to the carrying on by him of the activities which are or are to be authorised by the licence and the fulfilment of the requirements of the licence.
(3) Subject to subsection (4) below, a person shall be treated as not being a fit and proper person if it appears to the authority—
(a) that he or another relevant person has been convicted of a relevant offence;
(b) that the management of the activities which are or are to be authorised by the licence are not or will not be in the hands of a technically competent person; or
(c) that the person who holds or is to hold the licence has not made and either has no intention of making or is in no position to make financial provision adequate to discharge the obligations arising from the licence.
(4) The authority may, if it considers it proper to do so in any particular case, treat a person as a fit and proper person notwithstanding that subsection (3)(a) above applies in his case.
(5) It shall be the duty of waste regulation authorities to have regard to any guidance issued to them by the Secretary of State with respect to the discharge of their functions of making the determinations to which this section applies.
(6) The Secretary of State may, by regulations, prescribe the offences that are relevant for the purposes of subsection (3)(a) above and the qualifications and experience required of a person for the purposes of subsection (3)(b) above.
(7) For the purposes of subsection (3)(a) above, another relevant person shall be treated, in relation to the licence holder or proposed licence holder, as the case may be, as having been convicted of a relevant offence if—
(a) any person has been convicted of a relevant offence committed by him in the course of his employment by the holder or, as the case may be, the proposed holder of the licence or in the course of the carrying on of any business by a partnership one of the members of which was the holder or, as the case may be, the proposed holder of the licence;
(b) a body corporate has been convicted of a relevant offence committed when the holder or, as the case may be, the proposed holder of the licence was a director, manager, secretary or other similar officer of that body corporate; or
(c) where the holder or, as the case may be, the proposed holder of the licence is a body corporate, a person who is a director, manager, secretary or other similar officer of that body corporate—
(i) has been convicted of a relevant offence; or
(ii) was a director, manager, secretary or other similar officer of another body corporate at a time when a relevant offence for which that other body corporate has been convicted was committed.
(1) The following provisions apply for the interpretation of this Part.
(2) “Waste” includes—
(a) any substance which constitutes a scrap material or an effluent or other unwanted surplus substance arising from the application of any process; and
(b) any substance or article which requires to be disposed of as being broken, worn out, contaminated or otherwise spoiled;
but does not include a substance which is an explosive within the meaning of the [1875 c. 17.] Explosives Act 1875.
(3) Any thing which is discarded or otherwise dealt with as if it were waste shall be presumed to be waste unless the contrary is proved.
(4) “Controlled waste” means household, industrial and commercial waste or any such waste.
(5) Subject to subsection (8) below, “household waste” means waste from—
(a) domestic property, that is to say, a building or self-contained part of a building which is used wholly for the purposes of living accommodation;
(b) a caravan (as defined in section 29(1) of the [1960 c. 62.] Caravan Sites and Control of Development Act 1960) which usually and for the time being is situated on a caravan site (within the meaning of that Act);
(c) a residential home;
(d) premises forming part of a university or school or other educational establishment;
(e) premises forming part of a hospital or nursing home.
(6) Subject to subsection (8) below, “industrial waste” means waste from any of the following premises—
(a) any factory (within the meaning of the [1961 c. 34.] Factories Act 1961);
(b) any premises used for the purposes of, or in connection with, the provision to the public of transport services by land, water or air;
(c) any premises used for the purposes of, or in connection with, the supply to the public of gas, water or electricity or the provision of sewerage services; or
(d) any premises used for the purposes of, or in connection with, the provision to the public of postal or telecommunications services.
(7) Subject to subsection (8) below, “commercial waste” means waste from premises used wholly or mainly for the purposes of a trade or business or the purposes of sport, recreation or entertainment excluding—
(a) household waste;
(b) industrial waste;
(c) waste from any mine or quarry and waste from premises used for agriculture within the meaning of the [1947 c. 48.] Agriculture Act 1947 or, in Scotland, the [1948 c. 45.] Agriculture (Scotland) Act 1948; and
(d) waste of any other description prescribed by regulations made by the Secretary of State for the purposes of this paragraph.
(8) Regulations made by the Secretary of State may provide that waste of a description prescribed in the regulations shall be treated for the purposes of provisions of this Part prescribed in the regulations as being or not being household waste or industrial waste or commercial waste; but no regulations shall be made in respect of such waste as is mentioned in subsection (7)(c) above and references to waste in subsection (7) above and this subsection do not include sewage (including matter in or from a privy) except so far as the regulations provide otherwise.
(9) “Special waste” means controlled waste as respects which regulations are in force under section 62 above.
This Part shall have effect in its application to the Isles of Scilly with such modifications as the Secretary of State may by order specify.
(1) This section has effect for the purposes of the transition from the provisions of Part I of the [1974 c. 40.] Control of Pollution Act 1974 (“the 1974 Act”) to the corresponding provisions of this Part of this Act and in this section—
“existing disposal authority” has the same meaning as in section 32 above;
“existing disposal licence” means a disposal licence under section 5 of the 1974 Act subsisting on the day appointed under section 164(3) below for the repeal of sections 3 to 10 of the 1974 Act and “relevant appointed day for licences” shall be construed accordingly;
“existing disposal plan” means a plan under section 2 of the 1974 Act subsisting on the day appointed under section 164(3) below for the repeal of that section and “relevant appointed day for plans” shall be construed accordingly;
“relevant part of its undertaking”, in relation to an existing disposal authority, has the same meaning as in section 32 above; and
“the vesting date”, in relation to an existing disposal authority and its waste disposal contractors, means the vesting date under Schedule 2 to this Act.
(2) An existing disposal licence shall, on and after the relevant appointed day for licences, be treated as a site licence until it expires or otherwise ceases to have effect; and accordingly it shall be variable and subject to revocation or suspension under this Part of this Act and may not be surrendered or transferred except under this Part of this Act.
(3) The restriction imposed by section 33(1) above shall not apply in relation to land occupied by an existing disposal authority for which a resolution of the authority subsists under section 11 of the 1974 Act on the relevant appointed day for licences until the following date, that is to say—
(a) in the case of an authority which transfers the relevant part of its undertaking in accordance with a scheme under Schedule 2 to this Act, the date which is the vesting date for that authority; and
(b) in any other case, the date on which the authority transfers, or ceases itself to carry on, the relevant part of its undertaking or ceases to provide places at which and plant and equipment by means of which controlled waste can be disposed of or deposited for the purposes of disposal.
(4) Any existing disposal plan of an existing disposal authority shall, on and after the relevant appointed day for plans, be treated as the plan of that authority under section 50 above and that section shall accordingly have effect as if references in it to “the plan” included the existing disposal plan of that authority.
(5) Subsection (4) above applies to Scotland and, for the purposes of that application, “existing disposal authority” means any authority constituted as a disposal authority for any area before the day appointed for this section to come into force and “that authority” means the waste disposal authority for that area under section 30(2) above.
(6) Subject to subsection (7) below, as respects any existing disposal authority—
(a) the restriction imposed by section 51(1) of this Act on the means whereby the authority arranges for the disposal of controlled waste shall not apply to the authority—
(i) in the case of an authority which transfers the relevant part of its undertaking in accordance with a scheme under Schedule 2 to this Act, until the date which is the vesting date for that authority; and
(ii) in any other case, until the date on which the authority transfers, or ceases itself to carry on, the relevant part of its undertaking or ceases to provide places at which and plant and equipment by means of which controlled waste can be disposed of or deposited for the purposes of disposal; and
(b) on and after that date, section 14(4) of the 1974 Act shall not authorise the authority to arrange for the disposal of controlled waste except by means of arrangements made (in accordance with Part II of Schedule 2 to this Act) with waste disposal contractors.
(7) The Secretary of State may, as respects any existing disposal authority, direct that the restriction imposed by section 51(1) above shall not apply in the case of that authority until such date as he specifies in the direction and where he does so paragraph (a) of subsection (6) above shall not apply and paragraph (b) shall be read as referring to the date so specified.
(8) In section 14(4) of the 1974 Act, after the words “this subsection”, there shall be inserted the words “but subject to subsection (6) of section 77 of the Environmental Protection Act 1990 as respects any time after the date applicable to the authority under paragraph (a) or (b) of that subsection”.
(9) As respects any existing disposal authority, until the date which is, under subsection (6)(a) above, the date until which the restriction imposed by section 51(1) of this Act is disapplied,—
(a) the powers conferred on a waste disposal authority by section 55(2)(a) and (b) of this Act as respects the recycling of waste and the use of waste to produce heat or electricity shall be treated as powers which the authority may exercise itself; and
(b) the power conferred on a waste disposal authority by section 48(4) of this Act to object to a waste collection authority having waste recycled where the disposal authority has made arrangements with a waste disposal contractor for the contractor to recycle the waste shall be available to the waste disposal authority where it itself has the waste recycled.
Except as provided by regulations made by the Secretary of State under this section, nothing in this Part applies to radioactive waste within the meaning of the [1960 c. 34.] Radioactive Substances Act 1960; 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 purposes of dealing with such radioactive waste;
(b) make such modifications of the Radioactive Substances Act 1960 and any other Act as the Secretary of State considers appropriate.