Office of Public Sector Information
PART V continued
(5) The powers which by virtue of subsections (1) and (4) above are conferred in relation to any premises for the purpose of enabling an enforcing authority to determine whether any provision of the pollution control enactments in the case of that authority is being, or has been, complied with shall include power, in order to obtain the information on which that determination may be made,—
(a) to carry out experimental borings or other works on those premises; and
(b) to install, keep or maintain monitoring and other apparatus there.
(6) Except in an emergency, in any case where it is proposed to enter any premises used for residential purposes, or to take heavy equipment on to any premises which are to be entered, any entry by virtue of this section shall only be effected—
(a) after the expiration of at least seven days' notice of the proposed entry given to a person who appears to the authorised person in question to be in occupation of the premises in question, and
(b) either—
(i) with the consent of a person who is in occupation of those premises; or
(ii) under the authority of a warrant by virtue of Schedule 18 to this Act.
(7) Except in an emergency, where an authorised person proposes to enter any premises and—
(a) entry has been refused and he apprehends on reasonable grounds that the use of force may be necessary to effect entry, or
(b) he apprehends on reasonable grounds that entry is likely to be refused and that the use of force may be necessary to effect entry,
any entry on to those premises by virtue of this section shall only be effected under the authority of a warrant by virtue of Schedule 18 to this Act.
(8) In relation to any premises belonging to or used for the purposes of the United Kingdom Atomic Energy Authority, subsections (1) to (4) above shall have effect subject to section 6(3) of the Atomic Energy Authority Act 1954 (which restricts entry to such premises where they have been declared to be prohibited places for the [1911 c. 28.] purposes of the [1954 c. 32.] Official Secrets Act 1911).
(9) 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 (4)(f) above.
(10) Where an authorised person proposes to exercise the power conferred by subsection (4)(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.
(11) Before exercising the power conferred by subsection (4)(g) above in the case of any article or substance, an authorised person shall consult—
(a) such persons having duties on the premises where the article or substance is to be dismantled or subjected to the process or test, and
(b) such other 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 or cause to be done under the power.
(12) No answer given by a person in pursuance of a requirement imposed under subsection (4)(j) 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.
(13) 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.
(14) Schedule 18 to this Act shall have effect with respect to the powers of entry and related powers which are conferred by this section.
(15) In this section—
“authorised person” means a person authorised under subsection (1) or (2) above;
“emergency” means a case in which it appears to the authorised person in question—
that there is an immediate risk of serious pollution of the environment or serious harm to human health, or
that circumstances exist which are likely to endanger life or health,
and that immediate entry to any premises is necessary to verify the existence of that risk or those circumstances or to ascertain the cause of that risk or those circumstances or to effect a remedy;
“enforcing authority” means—
the Secretary of State;
the Agency;
SEPA; or
a local enforcing authority;
“local enforcing authority” means—
a local enforcing authority, within the meaning of Part I of the [1990 c. 43.] Environmental Protection Act 1990;
a local authority, within the meaning of Part IIA of that Act, in its capacity as an enforcing authority for the purposes of that Part;
a local authority for the purposes of Part IV of this Act or regulations under that Part;
“mobile plant” means plant which is designed to move or to be moved whether on roads or otherwise;
“pollution control enactments”, in relation to an enforcing authority, means the [1993 c. 12.] enactments and instruments relating to the [1989 c. 14.] pollution control functions of that authority;
“pollution control functions”, in relation to the [1965 c. 13.] Agency or SEPA, means the [1906 c. 14.] functions conferred or imposed on it by or under—
the Alkali, &c, Works Regulation Act 1906;
Part III of the [1951 c. 66.] Rivers (Prevention of Pollution) (Scotland) Act 1951;
the Rivers (Prevention of Pollution) (Scotland) Act 1965;
Part I of the [1974 c. 37.] Health and Safety at Work etc. Act 1974;
Parts I, IA and II of the [1974 c. 40.] Control of Pollution Act 1974;
the Control of Pollution (Amendment) Act 1989;
Parts I, II and IIA of the [1990 c. 43.] Environmental Protection Act 1990 (integrated pollution control, waste on land and contaminated land);
Chapter III of Part IV of the [1991 c. 56.] Water Industry Act 1991 (special category effluent);
Part III and sections 161 to 161D of the [1991 c. 57.] Water Resources Act 1991;
section 19 of the [1993 c. 11.] Clean Air Act 1993;
the Radioactive Substances Act 1993;
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;
“pollution control functions”, in relation to a local enforcing authority, means the functions conferred or imposed on, or transferred to, that authority—
by or under Part I or IIA of the [1990 c. 43.] Environmental Protection Act 1990;
by or under regulations made by virtue of Part IV of this Act; or
by or under 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;
“pollution control functions”, in relation to the Secretary of State, means any functions which are conferred or imposed upon him by or under any enactment or instrument and which relate to the control of pollution;
“premises” includes any land, vehicle, vessel or mobile plant.
(16) 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.
(1) Where, in the case of any article or substance found by him on any premises which he has power to enter, an authorised person 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) As soon as may be after any article or substance has been seized and rendered harmless under this section, the authorised person 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 authorised person 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.
(3) In this section, “authorised person” has the same meaning as in section 108 above.
(1) It is an offence for a person intentionally to obstruct an authorised person in the exercise or performance of his powers or duties.
(2) It is an offence for a person, without reasonable excuse,—
(a) to fail to comply with any requirement imposed under section 108 above;
(b) to fail or refuse to provide facilities or assistance or any information or to permit any inspection reasonably required by an authorised person in the execution of his powers or duties under or by virtue of that section; or
(c) to prevent any other person from appearing before an authorised person, or answering any question to which an authorised person may require an answer, pursuant to subsection (4) of that section.
(3) It is an offence for a person falsely to pretend to be an authorised person.
(4) A person guilty of an offence under subsection (1) above shall be liable—
(a) in the case of an offence of obstructing an authorised person in the execution of his powers under section 109 above—
(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;
(b) in any other case, on summary conviction, to a fine not exceeding level 5 on the standard scale.
(5) A person guilty of an offence under subsection (2) or (3) above shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(6) In this section—
“authorised person” means a person authorised under section 108 above and includes a person designated under paragraph 2 of Schedule 18 to this Act;
“powers and duties” includes powers or duties exercisable by virtue of a warrant under Schedule 18 to this Act.
(1) The following provisions (which restrict the admissibility in evidence of information obtained from samples) shall cease to have effect—
(a) section 19(2) to (2B) of the [1951 c. 66.] Rivers (Prevention of Pollution) (Scotland) 1951;
(b) section 49 of the [1968 c. 47.] Sewerage (Scotland) Act 1968;
(c) section 171(4) and (5) of the [1991 c. 56.] Water Industry Act 1991; and
(d) section 209(1), (2) and (4) of the [1991 c. 57.] Water Resources Act 1991.
(2) Information provided or obtained pursuant to or by virtue of a condition of a relevant licence (including information so provided or obtained, or recorded, by means of any apparatus) shall be admissible in evidence in any proceedings, whether against the person subject to the condition or any other person.
(3) For the purposes of subsection (2) above, apparatus shall be presumed in any proceedings to register or record accurately, unless the contrary is shown or the relevant licence otherwise provides.
(4) Where—
(a) by virtue of a condition of a relevant licence, an entry is required to be made in any record as to the observance of any condition of the relevant licence, and
(b) the entry has not been made,
that fact shall be admissible in any proceedings as evidence that that condition has not been observed.
(5) In this section—
“apparatus” includes any meter or other device for measuring, assessing, determining, recording or enabling to be recorded, the volume, temperature, radioactivity, rate, nature, origin, composition or effect of any substance, flow, discharge, emission, deposit or abstraction;
“condition of a relevant licence” includes any requirement to which a person is subject under, by virtue of or in consequence of a relevant licence;
“environmental licence” has the same meaning as it has in Part I above as it applies in relation to the Agency or SEPA, as the case may be;
“relevant licence” means—
any environmental licence;
any consent under Part II of the [1968 c. 47.] Sewerage (Scotland) Act 1968 to make discharges of trade effluent;
any agreement under section 37 of that Act with respect to, or to any matter connected with, the reception, treatment or disposal of such effluent;
any consent under Chapter III of Part IV of the [1991 c. 56.] Water Industry Act 1991 to make discharges of special category effluent; or
any agreement under section 129 of that Act with respect to, or to any matter connected with, the reception or disposal of such effluent.
(6) In section 25 of the Environmental Protection Act, after subsection (2) (which makes similar provision to subsection (4) above) there shall be inserted—
“(3) Subsection (2) above shall not have effect in relation to any entry required to be made in any record by virtue of a condition of a relevant licence, within the meaning of section 111 of the Environment Act 1995 (which makes corresponding provision in relation to such licences).”
Schedule 19 to this Act shall have effect.
(1) Notwithstanding any prohibition or restriction imposed by or under any enactment or rule of law, information of any description may be disclosed—
(a) by a new Agency to a Minister of the Crown, the other new Agency or a local enforcing authority,
(b) by a Minister of the Crown to a new Agency, another Minister of the Crown or a local enforcing authority, or
(c) by a local enforcing authority to a Minister of the Crown, a new Agency or another local enforcing authority,
for the purpose of facilitating the carrying out by either of the new Agencies of any of its functions, by any such Minister of any of his environmental functions or by any local enforcing authority of any of its relevant functions; and no person shall be subject to any civil or criminal liability in consequence of any disclosure made by virtue of this subsection.
(2) Nothing in this section shall authorise the disclosure to a local enforcing authority by a new Agency or another local enforcing authority of information—
(a) disclosure of which would, in the opinion of a Minister of the Crown, be contrary to the interests of national security; or
(b) which was obtained under or by virtue of the [1947 c. 39.] Statistics of Trade Act 1947 and which was disclosed to a new Agency or any of its officers by the Secretary of State.
(3) No information disclosed to any person under or by virtue of this section shall be disclosed by that person to any other person otherwise than in accordance with the provisions of this section, or any provision of any other enactment which authorises or requires the disclosure, if that information is information—
(a) which relates to a trade secret of any person or which otherwise is or might be commercially confidential in relation to any person; or
(b) whose disclosure otherwise than under or by virtue of this section would, in the opinion of a Minister of the Crown, be contrary to the interests of national security.
(4) Any authorisation by or under this section of the disclosure of information by or to any person shall also be taken to authorise the disclosure of that information by or, as the case may be, to any officer of his who is authorised by him to make the disclosure or, as the case may be, to receive the information.
(5) In this section—
“new Agency” means the Agency or SEPA;
“the environment” has the same meaning as in Part I of the [1990 c. 43.] Environmental Protection Act 1990;
“environmental functions”, in relation to a Minister of the Crown, means any function of that Minister, whether conferred or imposed under or by virtue of any enactment or otherwise, relating to the environment; and
“local enforcing authority” means—
any local authority within the meaning of Part IIA of the Environmental Protection Act 1990, and the “relevant functions” of such an authority are its functions under or by virtue of that Part;
any local authority within the meaning of Part IV of this Act, and the “relevant functions” of such an authority are its functions under or by virtue of that Part;
in relation to England, any county council for an area for which there are district councils, and the “relevant functions” of such a county council are its functions under or by virtue of Part IV of this Act; or
in relation to England and Wales, any local enforcing authority within the meaning of section 1(7) of the Environmental Protection Act 1990, and the “relevant functions” of such an authority are its functions under or by virtue of Part I of that Act.
(1) The Secretary of State may—
(a) appoint any person to exercise on his behalf, with or without payment, any function to which this paragraph applies; or
(b) refer any item to which this paragraph applies to such person as the Secretary of State may appoint for the purpose, with or without payment.
(2) The functions to which paragraph (a) of subsection (1) above applies are any of the Secretary of State’s functions of determining—
(a) an appeal under—
(i) section 31A(2)(b), 42B(5), 46C or 49B of the [1974 c. 40.] Control of Pollution Act 1974,
(ii) section 4 of the [1989 c. 14.] Control of Pollution (Amendment) Act 1989,
(iii) section 15, 22(5), 43, 62(3)(c), 66(5), 78L or 78T of the [1990 c. 43.] Environmental Protection Act 1990,
(iv) paragraph 2 or paragraph 3(3) of Schedule 6 to the [1991 c. 28.] Natural Heritage (Scotland) Act 1991,
(v) section 43, 91, 92, 96, 161C or 191B(5) of the [1991 c. 57.] Water Resources Act 1991,
(vi) section 26 of the [1993 c. 12.] Radioactive Substances Act 1993 against any decision of, or notice served by, SEPA,
(vii) paragraph 6 of Schedule 5 to the [S.I. 1994/1056.] Waste Management Licensing Regulations 1994,
or any matter involved in such an appeal;
(b) the questions, or any of the questions, which fall to be determined by the Secretary of State under section 39(1) or section 49(4) of the [1974 c. 40.] Control of Pollution Act 1974.
(3) The items to which paragraph (b) of subsection (1) above applies are—
(a) any matter involved in an appeal falling within subsection (2)(a) above;
(b) any of the questions which fall to be determined by the Secretary of State under section 39(1) or section 49(4) of the Control of Pollution Act 1974.
(4) Schedule 20 to this Act shall have effect with respect to appointments under subsection (1)(a) above.
(1) Subject to the provisions of this section, this Act shall bind the Crown.
(2) Part III of this Act and any amendments, repeals and revocations made by other provisions of this Act (other than those made by Schedule 21, which shall bind the Crown) bind the Crown to the extent that the enactments to which they relate bind the Crown.
(3) No contravention by the Crown of any provision made by or under this Act shall make the Crown criminally liable; but the High Court or, in Scotland, the Court of Session may, on the application of the Agency or, in Scotland, SEPA, declare unlawful any act or omission of the Crown which constitutes such a contravention.
(4) Notwithstanding anything in subsection (3) above, any provision made by or under this Act shall apply to persons in the public service of the Crown as it applies to other persons.
(5) If the Secretary of State certifies that it appears to him, as respects any Crown premises and any powers of entry exercisable in relation to them specified in the certificate, that it is requisite or expedient that, in the interests of national security, the powers should not be exercisable in relation to those premises, those powers shall not be exercisable in relation to those premises; and in this subsection “Crown premises” means premises held or used by or on behalf of the Crown.
(6) Nothing in this section shall be taken as in any way affecting Her Majesty in her private capacity; and this subsection shall be construed as if section 38(3) of the [1947 c. 44.] Crown Proceedings Act 1947 (interpretation of references to Her Majesty in her private capacity) were contained in this Act.
Schedule 21 to this Act shall have effect.
(1) Subject to sections 77, 80 and 89 above and the provisions of any order under this section or section 89 above, nothing in this Act shall require or authorise any function, duty or power to be carried out, performed or exercised in relation to the Isles of Scilly by the Agency; and references in the other provisions of this Act (apart from Part III) to England and Wales shall not include references to those Isles.
(2) The Secretary of State may, after consultation with the Council of the Isles of Scilly, by order make provision with respect to the carrying out in those Isles of functions (other than functions under or by virtue of Part III or IV of this Act) falling to be carried out in relation to other parts of England and Wales by the Agency.
(3) Without prejudice to the generality of the power conferred by subsection (2) above, an order under this section may apply any provision of this Act (other than a provision contained in Part III or IV) in relation to the Isles of Scilly with or without modifications.
(4) 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.
(5) The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument; and a statutory instrument containing such an order shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1) After section 10 of the [1989 c. 14.] Control of Pollution (Amendment) Act 1989 there shall be inserted—
(1) Subject to the provisions of any order under this section, this Act 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 Act 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.
(4) The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument; and a statutory instrument containing such an order shall be subject to annulment in pursuance of a resolution of either House of Parliament.”
(2) In section 11 of that Act, subsection (3) (which provides for section 107 of the [1974 c. 40.] Control of Pollution Act 1974 to have effect in relation to the application and modification of that Act to the Isles of Scilly) shall cease to have effect.
(3) For section 76 of the [1990 c. 43.] Environmental Protection Act 1990 (which provides for Part II of that Act to have effect in its application to the Isles of Scilly with modifications specified by order) there shall be substituted—
(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.”
(4) For section 222 of the [1991 c. 56.] Water Industry Act 1991 (application to Isles of Scilly) there shall be substituted—
(1) Subject to the provisions of any order under this section, this Act 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 Act 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.
(4) The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.”
(5) For section 224 of the [1991 c. 57.] Water Resources Act 1991 (application to Isles of Scilly) there shall be substituted—
(1) Subject to the provisions of any order under this section, this Act 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 Act 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.
(4) The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.”
(6) For section 75 of the [1991 c. 59.] Land Drainage Act 1991 (application to the Isles of Scilly) there shall be substituted—
(1) Subject to the provisions of any order under this section, this Act 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 Act 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.
(4) The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.”
Environment Act 1995