Office of Public Sector Information
SCHEDULE 22 continued
(2) Before issuing the licence, the waste regulation authority shall serve on every person appearing to the authority to be a person falling within subsection (3) below a notice which complies with the requirements set out in subsection (4) below.
(3) A person falls within this subsection if—
(a) he is the owner, lessee or occupier of any land; and
(b) that land is land in relation to which it is likely that, as a consequence of the licence being issued subject to the condition in question, rights will have to be granted by virtue of section 35(4) above to the holder of the licence.
(4) A notice served under subsection (2) above shall—
(a) set out the condition in question;
(b) indicate the nature of the works or other things which that condition might require the holder of the licence to carry out or do; and
(c) specify the date by which, and the manner in which, any representations relating to the condition or its possible effects are to be made to the waste regulation authority by the person on whom the notice is served.
(5) The date which, pursuant to subsection (4)(c) above, is specified in a notice shall be a date not earlier than the date on which expires the period—
(a) beginning with the date on which the notice is served, and
(b) of such length as may be prescribed in regulations made by the Secretary of State.
(6) Before the waste regulation authority issues the licence it must, subject to subsection (7) below, consider any representations made in relation to the condition in question, or its possible effects, by any person on whom a notice has been served under subsection (2) above.
(7) Subsection (6) above does not require the waste regulation authority to consider any representations made by a person after the date specified in the notice served on him under subsection (2) above as the date by which his representations in relation to the condition or its possible effects are to be made.
(8) In subsection (3) above—
“owner”, in relation to any land in England and Wales, means the person who—
is for the time being receiving the rack-rent of the land, whether on his own account or as agent or trustee for another person; or
would receive the rack-rent if the land were let at a rack-rent,
but does not include a mortgagee not in possession; and
“owner”, in relation to any land in Scotland, means a person (other than a creditor in a heritable security not in possession of the security subjects) for the time being entitled to receive or who would, if the land were let, be entitled to receive, the rents of the land in connection with which the word is used and includes a trustee, factor, guardian or curator and in the case of public or municipal land includes the persons to whom the management of the land is entrusted.”.
70 (1) In section 37 of that Act (variation of licences) in subsection (1)(b) (which requires an application to be accompanied by the prescribed fee) for the words “the prescribed fee payable under section 41 below,” there shall be substituted the words “the charge prescribed for the purpose by a charging scheme under section 41 of the Environment Act 1995,”.
(2) In subsection (5) of that section (which applies certain provisions of section 36) the words “(5), (6),” and “(8)” shall be omitted.
(3) After subsection (6) of that section (cases where an application for modification is deemed to have been rejected) there shall be added—
“(7) This section shall have effect subject to section 37A below.”
71 After section 37 of that Act there shall be inserted—
(1) This section applies where—
(a) a waste regulation authority proposes to modify a licence under section 37(1) or (2)(a) above; and
(b) the licence, if modified as proposed, would be subject to a relevant new condition.
(2) For the purposes of this section, a “relevant new condition” is any condition by virtue of which the holder of the licence might be required to carry out any works or do any other thing—
(a) which he might not be entitled to carry out or do, and
(b) which he could not be required to carry out or do by virtue of the conditions to which, prior to the modification, the licence is subject.
(3) Before modifying the licence, the waste regulation authority shall serve on every person appearing to the authority to be a person falling within subsection (4) below a notice which complies with the requirements set out in subsection (5) below.
(4) A person falls within this subsection if—
(a) he is the owner, lessee or occupier of any land; and
(b) that land is land in relation to which it is likely that, as a consequence of the licence being modified so as to be subject to the relevant new condition in question, rights will have to be granted by virtue of section 35(4) above to the holder of the licence.
(5) A notice served under subsection (3) above shall—
(a) set out the relevant new condition in question;
(b) indicate the nature of the works or other things which that condition might require the holder of the licence to carry out or do but which he could not be required to carry out or do by virtue of the conditions (if any) to which, prior to the modification, the licence is subject; and
(c) specify the date by which, and the manner in which, any representations relating to the condition or its possible effects are to be made to the waste regulation authority by the person on whom the notice is served.
(6) The date which, pursuant to subsection (5)(c) above, is specified in a notice shall be a date not earlier than the date on which expires the period—
(a) beginning with the date on which the notice is served, and
(b) of such length as may be prescribed in regulations made by the Secretary of State.
(7) Before the waste regulation authority issues the licence it must, subject to subsection (8) below, consider any representations made in relation to the condition in question, or its possible effects, by any person on whom a notice has been served under subsection (3) above.
(8) Subsection (7) above does not require the waste regulation authority to consider any representations made by a person after the date specified in the notice served on him under subsection (3) above as the date by which his representations in relation to the condition or its possible effects are to be made.
(9) A waste regulation authority may postpone the service of any notice or the consideration of any representations required under the foregoing provisions of this section so far as the authority considers that by reason of an emergency it is appropriate to do so.
(10) In subsection (3) above, “owner” has the same meaning as it has in subsection (3) of section 36A above by virtue of subsection (8) of that section.”.
72 (1) In section 38 of that Act (revocation and suspension of licences) after subsection (9) (power to require certain measures to be taken where licence suspended) there shall be inserted—
“(9A) A requirement imposed under subsection (9) above may require the holder of a licence to carry out works or do other things notwithstanding that he is not entitled to carry out the works or do the thing and any person whose consent would be required shall grant, or join in granting, the holder of the licence such rights in relation to the land as will enable the holder of the licence to comply with any requirements imposed on him under that subsection.
(9B) Subsections (2) to (8) of section 36A above shall, with the necessary modifications, apply where the authority proposes to impose a requirement under subsection (9) above which may require the holder of a licence to carry out any such works or do any such thing as is mentioned in subsection (9A) above as they apply where the authority proposes to issue a licence subject to any such condition as is mentioned in subsection (1) of that section, but as if—
(a) the reference in subsection (3) of that section to section 35(4) above were a reference to subsection (9A) above; and
(b) any reference in those subsections—
(i) to the condition, or the condition in question, were a reference to the requirement; and
(ii) to issuing a licence were a reference to serving a notice, under subsection (12) below, effecting the requirement.
(9C) The authority may postpone the service of any notice or the consideration of any representations required under section 36A above, as applied by subsection (9B) above, so far as the authority considers that by reason of an emergency it is appropriate to do so.”
(2) After subsection (12) of that section (revocations and suspensions etc. to be effected by service of notice) there shall be added—
“(13) If a waste regulation authority is of the opinion that proceedings for an offence under subsection (10) or (11) above would afford an ineffectual remedy against a person who has failed to comply with any requirement imposed under subsection (9) above, the authority may take proceedings in the High Court or, in Scotland, in any court of competent jurisdiction for the purpose of securing compliance with the requirement.”
73 (1) Section 39 of that Act (surrender of licences) shall be amended in accordance with the following provisions of this paragraph.
(2) In subsection (3) (application for surrender of a site licence) for the words from “in such form” onwards there shall be substituted the words “on a form provided by the authority for the purpose, giving such information and accompanied by such evidence as the authority reasonably requires and accompanied by the charge prescribed for the purpose by a charging scheme under section 41 of the Environment Act 1995.”
(3) In subsection (7) (consideration of representations before accepting surrender of a licence)—
(a) for the words “the National Rivers Authority” and “the Authority” there shall be substituted the words “the appropriate planning authority”; and
(b) the words following paragraph (b) shall cease to have effect.
(4) Subsection (8) (which makes provision for Scotland in place of subsection (7)) shall cease to have effect.
(5) In subsection (11) (meaning of “the allowed period”) for the words “subsections (7) and (8) above” there shall be substituted the words “subsection (7) above”.
(6) After subsection (11) there shall be added—
“(12) In this section—
“the appropriate planning authority” means—
where the relevant land is situated in the area of a London borough council, that London borough council;
where the relevant land is situated in the City of London, the Common Council of the City of London;
where the relevant land is situated in a non-metropolitan county in England, the council of that county;
where the relevant land is situated in a National Park or the Broads, the National Park authority for that National Park or, as the case may be, the Broads Authority;
where the relevant land is situated elsewhere in England or Wales, the council of the district or, in Wales, the county or county borough, in which the land is situated;
where the relevant land is situated in Scotland, the council constituted under section 2 of the [1994 c. 39.] Local Government etc. (Scotland) Act 1994 for the area in which the land is situated;
“the Broads” has the same meaning as in the [1988 c. 4.] Norfolk and Suffolk Broads Act 1988;
“National Park authority”, subject to subsection (13) below, means a National Park authority established under section 63 of the Environment Act 1995 which has become the local planning authority for the National Park in question;
“the relevant land”, in the case of any site licence, means the land to which the licence relates.
(13) As respects any period before a National Park authority established under section 63 of the Environment Act 1995 in relation to a National Park becomes the local planning authority for that National Park, any reference in this section to a National Park authority shall be taken as a reference to the National Park Committee or joint or special planning board for that National Park.
(14) The Secretary of State may by regulations amend the definition of “appropriate planning authority” in subsection (12) above.”
74 In section 40 of that Act (transfer of licences) in subsection (3) (mode of making application for transfer of licence) for the words from “in such form” to “section 41 below” there shall be substituted the words “on a form provided by the authority for the purpose, accompanied by such information as the authority may reasonably require, the charge prescribed for the purpose by a charging scheme under section 41 of the Environment Act 1995”.
75 Section 41 of that Act (fees and charges for licences) shall cease to have effect.
76 (1) Section 42 of that Act (supervision of licensed activities) shall be amended in accordance with the following provisions of this paragraph.
(2) Subsection (2) (consultation with the National Rivers Authority etc) shall cease to have effect.
(3) In subsection (4) (recovery of expenditure from the holder or, if it has been surrendered, the former holder of a licence) for the words “the holder of the licence or, if the licence has been surrendered, from the former holder of it” there shall be substituted the words “the holder, or (as the case may be) the former holder, of the licence”.
(4) In subsection (5) (powers where it appears that a condition of a licence is not being complied with) after the words “is not being complied with” there shall be inserted the words “or is likely not to be complied with,”.
(5) For paragraph (a) of that subsection there shall be substituted—
“(a) serve on the holder of the licence a notice—
(i) stating that the authority is of the opinion that a condition of the licence is not being complied with or, as the case may be, is likely not to be complied with;
(ii) specifying the matters which constitute the non-compliance or, as the case may be, which make the anticipated non-compliance likely;
(iii) specifying the steps which must be taken to remedy the non-compliance or, as the case may be, to prevent the anticipated non-compliance from occurring; and
(iv) specifying the period within which those steps must be taken; and”.
(6) In paragraph (b) of that subsection (powers which become exercisable on non-compliance) for the words “has not complied with the condition within that time,” there shall be substituted the words “has not taken the steps specified in the notice within the period so specified,”.
(7) After subsection (6) (power to revoke or suspend a licence) there shall be inserted—
“(6A) If a waste regulation authority is of the opinion that revocation or suspension of the licence, whether entirely or to any extent, under subsection (6) above would afford an ineffectual remedy against a person who has failed to comply with any requirement imposed under subsection (5)(a) above, the authority may take proceedings in the High Court or, in Scotland, in any court of competent jurisdiction for the purpose of securing compliance with the requirement.”
(8) In subsection (7) (application of certain provisions of section 38 to revocation or suspension of a licence)—
(a) for the words from “subsections (5)” to “38” there shall be substituted the words “subsections (5) and (12) or, as the case may be, subsections (8) to (12) of section 38”; and
(b) the words from “and the power” onwards shall cease to have effect.
77 In section 43 of that Act, in subsection (2), paragraphs (a) and (b) (reference of matters involved in appeals under that section to, and determination of such appeals by, persons appointed by the Secretary of State) shall cease to have effect and after that section there shall be inserted—
“(2A) This section is subject to section 114 of the Environment Act 1995 (delegation or reference of appeals etc).”
78 Section 50 of that Act (waste disposal plans of waste regulation authorities) shall cease to have effect.
79 Section 61 of that Act (duty of waste regulation authorities as respects closed landfills) shall cease to have effect.
80 (1) Section 62 of that Act (special provision with respect to certain dangerous and intractable waste) shall be amended in accordance with the following provisions of this paragraph.
(2) In subsection (3), for paragraph (a) (regulations providing for the supervision of certain activities and the recovery of the costs from persons carrying on the activities) there shall be substituted—
“(a) for the supervision by waste regulation authorities—
(i) of activities authorised by virtue of the regulations or of activities by virtue of carrying on which persons are subject to provisions of the regulations, or
(ii) of persons who carry on activities authorised by virtue of the regulations or who are subject to provisions of the regulations,
and for the recovery from persons falling within sub-paragraph (ii) above of the costs incurred by waste regulation authorities in performing functions conferred upon those authorities by the regulations;”.
(3) After that subsection (which also includes provision for regulations to provide for appeals to the Secretary of State) there shall be added—
“(3A) This section is subject to section 114 of the Environment Act 1995 (delegation or reference of appeals etc).”
81 In section 63 of that Act (waste other than controlled waste) for subsection (2) (offences relating to the deposit of waste which is not controlled waste but which, if it were such waste, would be special waste) there shall be substituted—
“(2) A person who deposits, or knowingly causes or knowingly permits the deposit of, any waste—
(a) which is not controlled waste, but
(b) which, if it were controlled waste, would be special waste,
in a case where he would be guilty of an offence under section 33 above if the waste were special waste and any waste management licence were not in force, shall, subject to subsection (3) below, be guilty of that offence and punishable as if the waste were special waste.”
82 (1) Section 64 of that Act (public registers) shall be amended in accordance with the following provisions of this paragraph.
(2) After subsection (2) there shall be inserted—
“(2A) The Secretary of State may give to a waste regulation authority directions requiring the removal from any register of its of any specified information not prescribed for inclusion under subsection (1) above or which, by virtue of section 65 or 66 below, ought to be excluded from the register.”
(3) In subsection (4) (duty of waste collection authorities in England to maintain registers)—
(a) after the word “England” there shall be inserted the words “or Wales”; and
(b) the words “which is not a waste regulation authority” shall be omitted.
(4) For subsection (5) (waste regulation authorities in England to furnish information to waste collection authorities) there shall be substituted—
“(5) The waste regulation authority in relation to England and Wales shall furnish any waste collection authorities in its area with the particulars necessary to enable them to discharge their duty under subsection (4) above.”
(5) In subsection (6) (registers to be available for inspection by, and facilities for obtaining copies of entries to be afforded to, the public)—
(a) after the words “waste collection authority” there shall be inserted “(a)”;
(b) after the words “hours and” there shall be inserted “(b)”; and
(c) after the paragraph (b) so formed, 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.”
83 (1) In section 66 of that Act (exclusion from registers of certain confidential information) in subsection (5) (information not to be entered on the register until expiration of certain time limits) in the words following paragraph (b), for the words from “pending” onwards there shall be substituted the words “until the end of the period of seven days following the day on which the appeal is finally determined or withdrawn”.
(2) For subsection (6) (which applies section 43(2) and (8) to appeals to the Secretary of State against decisions that information is not commercially confidential) there shall be substituted—
“(6) Subsections (2) and (8) of section 43 above shall apply in relation to appeals under subsection (5) above as they apply in relation to appeals under that section; but
(a) subsection (2)(c) 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 Environment Act 1995 (delegation or reference of appeals etc).”
84 Section 67 of that Act (annual reports of waste regulation authorities) shall cease to have effect.
85 Sections 68 to 70 of that Act (functions of the Secretary of State and appointment etc of inspectors, powers of entry and power to deal with cause of imminent danger of serious pollution) shall cease to have effect.
86 (1) In section 71 of that Act (obtaining of information from persons and authorities) subsection (1) (which is superseded by this Act) shall cease to have effect.
(2) In subsection (2) of that section (power by notice to require a person to furnish information within such period as may be specified in the notice) after the words “service of the notice” there shall be inserted the words “, or at such time,”.
87 Section 72 of that Act (default powers of the Secretary of State) shall cease to have effect.
88 (1) Section 75 of that Act (meaning of “waste” etc.) shall be amended in accordance with the following provisions of this paragraph.
(2) For subsection (2) (definition of “waste”) there shall be substituted—
“(2) “Waste” means any substance or object in the categories set out in Schedule 2B to this Act which the holder discards or intends or is required to discard; and for the purposes of this definition—
“holder” means the producer of the waste or the person who is in possession of it; and
“producer” means any person whose activities produce waste or any person who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of this waste.”
(3) Subsection (3) (presumption that anything discarded is waste unless the contrary is proved) shall cease to have effect.
(4) After subsection (9) there shall be added—
“(10) Schedule 2B to this Act (which reproduces Annex I to the Waste Directive) shall have effect.
(11) Subsection (2) above is substituted, and Schedule 2B to this Act is inserted, for the purpose of assigning to “waste” in this Part the meaning which it has in the Waste Directive by virtue of paragraphs (a) to (c) of Article 1 of, and Annex I to, that Directive, and those provisions shall be construed accordingly.
(12) In this section “the Waste Directive” means the [75/442/EEC.] directive of the Council of the European Communities, dated 15th July 1975, on waste, as amended by—
(a) the [91/156/EEC.] directive of that Council, dated 18th March 1991, amending directive 75/442/EEC on waste; and
(b) the [91/692/EEC.] directiveof that Council, dated 23rd December 1991, standardising and rationalising reports on the implementation of certain Directives relating to the environment.”
89 (1) Section 79 of that Act (statutory nuisances) shall be amended in accordance with the following provisions of this paragraph.
(2) In subsection (1) (the paragraphs of which specify, subject to subsections (2) to (6A), the matters which constitute statutory nuisances) for the words “Subject to subsections (2) to (6A) below” there shall be substituted the words “Subject to subsections (1A) to (6A) below”.
(3) After that subsection there shall be inserted—
“(1A) No matter shall constitute a statutory nuisance to the extent that it consists of, or is caused by, any land being in a contaminated state.
(1B) Land is in a “contaminated state” for the purposes of subsection (1A) above if, and only if, it is in such a condition, by reason of substances in, on or under the land, that—
(a) harm is being caused or there is a possibility of harm being caused; or
(b) pollution of controlled waters is being, or is likely to be, caused;
and in this subsection “harm”, “pollution of controlled waters” and “substance” have the same meaning as in Part IIA of this Act.”.
90 In section 141 of that Act (power to prohibit or restrict the importation or exportation of waste) subsection (5)(a)(ii) (power of Secretary of State by direction to make functions of certain authorities exercisable instead by him) shall cease to have effect.
91 Section 143 of that Act (public registers of land which may be contaminated) shall cease to have effect.
92 In section 161 of that Act (regulations and orders) in subsection (4) (which specifies the orders under that Act which are not subject to negative resolution procedure under subsection (3)) after the words “does not apply to” there shall be inserted the words “a statutory instrument—
(a) which contains an order under section 78M(4) above, or
(b) by reason only that it contains”.
93 (1) Schedule 1 to that Act (authorisations for processes: supplementary provisions) shall be amended in accordance with the following provisions of this paragraph.
(2) In Part I (grant of authorisations) in paragraph 3(3) (local inquiry or hearing to be held where request to be heard made by the applicant or the local enforcing authority) for the words “the local enforcing authority” there shall be substituted the words “the enforcing authority”.
(3) In Part II (variation of authorisations) in paragraph 6, at the beginning of sub-paragraph (1) there shall be inserted the words “Except as provided by sub-paragraph (1A) below,”.
(4) After that sub-paragraph there shall be inserted—
“(1A) The requirements of this paragraph shall not apply in relation to any variations of an authorisation which an enforcing authority has decided to make in consequence of representations made in accordance with this paragraph and which are specified by way of variation of a variation notice by a further notice under section 10(3A) of this Act.”
(5) After paragraph 7 (applications for variation) there shall be inserted—
8 (1) The Secretary of State may give directions to the enforcing authority requiring that any particular application or any class of applications for the variation of an authorisation shall be transmitted to him for determination pending a further direction under sub-paragraph (5) below.
(2) The enforcing authority shall inform the applicant of the fact that his application is being transmitted to the Secretary of State.
(3) Where an application for the variation of an authorisation is referred to him under sub-paragraph (1) above the Secretary of State may—
(a) cause a local inquiry to be held in relation to the application; or
(b) afford the applicant and the authority concerned an opportunity of appearing before and being heard by a person appointed by the Secretary of State;
and he shall exercise one of the powers under this sub-paragraph in any case where, in the manner prescribed by regulations made by the Secretary of State, a request is made to be heard with respect to the application by the applicant or the enforcing authority concerned.
(4) Subsections (2) to (5) of section 250 of the [1972 c. 70.] Local Government Act 1972 (supplementary provisions about local inquiries under that section) or, in relation to Scotland, subsections (2) to (8) of section 210 of the [1973 c. 65.] Local Government (Scotland) Act 1973 (which make similar provision) shall, without prejudice to the generality of subsection (1) of either of those sections, apply to local inquiries or other hearings in pursuance of sub-paragraph (3) above as they apply to inquiries in pursuance of either of those sections and, in relation to England and Wales, as if the reference to a local authority in subsection (4) of the said section 250 included a reference to the enforcing authority.
(5) The Secretary of State shall, on determining any application transferred to him under this paragraph, give to the enforcing authority such a direction as he thinks fit as to whether it is to grant the application and, if so, as to the conditions that are to be attached to the authorisation by means of the variation notice.
9 The Secretary of State may give the enforcing authority a direction with respect to any particular application or any class of applications for the variation of an authorisation requiring the authority not to determine or not to proceed with the application or applications of that class until the expiry of any such period as may be specified in the direction, or until directed by the Secretary of State that they may do so, as the case may be.
10 (1) Except in a case where an application for the variation of an authorisation has been referred to the Secretary of State under paragraph 8 above and subject to sub-paragraph (3) below, the enforcing authority shall determine an application for the variation of an authorisation within the period of four months beginning with the day on which it received the application or within such longer period as may be agreed with the applicant.
(2) If the enforcing authority fails to determine an application for the variation of an authorisation within the period allowed by or under this paragraph the application shall, if the applicant notifies the authority in writing that he treats the failure as such, be deemed to have been refused at the end of that period.
(3) The Secretary of State may, by order, substitute for the period for the time being specified in sub-paragraph (1) above such other period as he considers appropriate and different periods may be substituted for different classes of application.”
94 In Schedule 2 to that Act (waste disposal authorities and companies) in paragraph 17(2) (which requires a waste regulation authority or waste disposal authority to furnish information on request to the Secretary of State) the words “a waste regulation authority or” shall cease to have effect.
95 After Schedule 2A to that Act there shall be inserted—
1 Production or consumption residues not otherwise specified below.
2 Off-specification products.
3 Products whose date for appropriate use has expired.
4 Materials spilled, lost or having undergone other mishap, including any materials, equipment, etc, contaminated as a result of the mishap.
Environment Act 1995