Office of Public Sector Information
PART II continued
(3) If, in a case where this section applies, a person permits, has permitted, or might permit, water from an abandoned mine or part of a mine—
(a) to enter any controlled waters, or
(b) to reach a place from which it is or, as the case may be, was likely, in the opinion of the enforcing authority, to enter such waters,
no remediation notice shall require him in consequence to do anything by way of remediation (whether to the contaminated land in question or to any other land or waters) which he could not have been required to do by such a notice had paragraph (b) of section 78A(2) above (and all other references to pollution of controlled waters) been omitted from this Part.
(4) Subsection (3) above shall not apply to the owner or former operator of any mine or part of a mine if the mine or part in question became abandoned after 31st December 1999.
(5) In determining for the purposes of subsection (4) above whether a mine or part of a mine became abandoned before, on or after 31st December 1999 in a case where the mine or part has become abandoned on two or more occasions, of which—
(a) at least one falls on or before that date, and
(b) at least one falls after that date,
the mine or part shall be regarded as becoming abandoned after that date (but without prejudice to the operation of subsection (3) above in relation to that mine or part at, or in relation to, any time before the first of those occasions which falls after that date).
(6) Where, immediately before a part of a mine becomes abandoned, that part is the only part of the mine not falling to be regarded as abandoned for the time being, the abandonment of that part shall not be regarded for the purposes of subsection (4) or (5) above as constituting the abandonment of the mine, but only of that part of it.
(7) Nothing in subsection (2) or (3) above prevents the enforcing authority from doing anything by way of remediation under section 78N below which it could have done apart from that subsection, but the authority shall not be entitled under section 78P below to recover from any person any part of the cost incurred by the authority in doing by way of remediation anything which it is precluded by subsection (2) or (3) above from requiring that person to do.
(8) In this section “mine” has the same meaning as in the [1954 c. 70.] Mines and Quarries Act 1954.
(1) A person who has caused or knowingly permitted any substances to be in, on or under any land shall also be taken for the purposes of this Part to have caused or, as the case may be, knowingly permitted those substances to be in, on or under any other land to which they appear to have escaped.
(2) Subsections (3) and (4) below apply in any case where it appears that any substances are or have been in, on or under any land (in this section referred to as “land A”) as a result of their escape, whether directly or indirectly, from other land in, on or under which a person caused or knowingly permitted them to be.
(3) Where this subsection applies, no remediation notice shall require a person—
(a) who is the owner or occupier of land A, and
(b) who has not caused or knowingly permitted the substances in question to be in, on or under that land,
to do anything by way of remediation to any land or waters (other than land or waters of which he is the owner or occupier) in consequence of land A appearing to be in such a condition, by reason of the presence of those substances in, on or under it, that significant harm is being caused, or there is a significant possibility of such harm being caused, or that pollution of controlled waters is being, or is likely to be caused.
(4) Where this subsection applies, no remediation notice shall require a person—
(a) who is the owner or occupier of land A, and
(b) who has not caused or knowingly permitted the substances in question to be in, on or under that land,
to do anything by way of remediation in consequence of any further land in, on or under which those substances or any of them appear to be or to have been present as a result of their escape from land A (“land B”) appearing to be in such a condition, by reason of the presence of those substances in, on or under it, that significant harm is being caused, or there is a significant possibility of such harm being caused, or that pollution of controlled waters is being, or is likely to be caused, unless he is also the owner or occupier of land B.
(5) In any case where—
(a) a person (“person A”) has caused or knowingly permitted any substances to be in, on, or under any land,
(b) another person (“person B”) who has not caused or knowingly permitted those substances to be in, on or under that land becomes the owner or occupier of that land, and
(c) the substances, or any of the substances, mentioned in paragraph (a) above appear to have escaped to other land,
no remediation notice shall require person B to do anything by way of remediation to that other land in consequence of the apparent acts or omissions of person A, except to the extent that person B caused or knowingly permitted the escape.
(6) Nothing in subsection (3), (4) or (5) above prevents the enforcing authority from doing anything by way of remediation under section 78N below which it could have done apart from that subsection, but the authority shall not be entitled under section 78P below to recover from any person any part of the cost incurred by the authority in doing by way of remediation anything which it is precluded by subsection (3), (4) or (5) above from requiring that person to do.
(7) In this section, “appear” means appear to the enforcing authority, and cognate expressions shall be construed accordingly.
(1) A person on whom a remediation notice is served may, within the period of twenty-one days beginning with the day on which the notice is served, appeal against the notice—
(a) if it was served by a local authority, to a magistrates' court or, in Scotland, to the sheriff by way of summary application; or
(b) if it was served by the appropriate Agency, to the Secretary of State;
and in the following provisions of this section “the appellate authority” means the magistrates' court, the sheriff or the Secretary of State, as the case may be.
(2) On any appeal under subsection (1) above the appellate authority—
(a) shall quash the notice, if it is satisfied that there is a material defect in the notice; but
(b) subject to that, may confirm the remediation notice, with or without modification, or quash it.
(3) Where an appellate authority confirms a remediation notice, with or without modification, it may extend the period specified in the notice for doing what the notice requires to be done.
(4) Regulations may make provision with respect to—
(a) the grounds on which appeals under subsection (1) above may be made;
(b) the cases in which, grounds on which, court or tribunal to which, or person at whose instance, an appeal against a decision of a magistrates' court or sheriff court in pursuance of an appeal under subsection (1) above shall lie; or
(c) the procedure on an appeal under subsection (1) above or on an appeal by virtue of paragraph (b) above.
(5) Regulations under subsection (4) above may (among other things)—
(a) include provisions comparable to those in section 290 of the [1936 c. 49.] Public Health Act 1936 (appeals against notices requiring the execution of works);
(b) prescribe the cases in which a remediation notice is, or is not, to be suspended until the appeal is decided, or until some other stage in the proceedings;
(c) prescribe the cases in which the decision on an appeal may in some respects be less favourable to the appellant than the remediation notice against which he is appealing;
(d) prescribe the cases in which the appellant may claim that a remediation notice should have been served on some other person and prescribe the procedure to be followed in those cases;
(e) make provision as respects—
(i) the particulars to be included in the notice of appeal;
(ii) the persons on whom notice of appeal is to be served and the particulars, if any, which are to accompany the notice; and
(iii) the abandonment of an appeal;
(f) make different provision for different cases or classes of case.
(6) This section, so far as relating to appeals to the Secretary of State, is subject to section 114 of the [1995 c. 25.] Environment Act 1995 (delegation or reference of appeals etc).
(1) If a person on whom an enforcing authority serves a remediation notice fails, without reasonable excuse, to comply with any of the requirements of the notice, he shall be guilty of an offence.
(2) Where the remediation notice in question is one which was required by section 78E(3) above to state, in relation to the requirement which has not been complied with, the proportion of the cost involved which the person charged with the offence is liable to bear, it shall be a defence for that person to prove that the only reason why he has not complied with the requirement is that one or more of the other persons who are liable to bear a proportion of that cost refused, or was not able, to comply with the requirement.
(3) Except in a case falling within subsection (4) below, a person who commits an offence under subsection (1) above shall be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale and to a further fine of an amount equal to one-tenth of level 5 on the standard scale for each day on which the failure continues after conviction of the offence and before the enforcing authority has begun to exercise its powers by virtue of section 78N(3)(c) below.
(4) A person who commits an offence under subsection (1) above in a case where the contaminated land to which the remediation notice relates is industrial, trade or business premises shall be liable on summary conviction to a fine not exceeding £20,000 or such greater sum as the Secretary of State may from time to time by order substitute and to a further fine of an amount equal to one-tenth of that sum for each day on which the failure continues after conviction of the offence and before the enforcing authority has begun to exercise its powers by virtue of section 78N(3)(c) below.
(5) If the enforcing authority is of the opinion that proceedings for an offence under this section would afford an ineffectual remedy against a person who has failed to comply with any of the requirements of a remediation notice which that authority has served on him, that 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 remediation notice.
(6) In this section, “industrial, trade or business premises” means premises used for any industrial, trade or business purposes or premises not so used on which matter is burnt in connection with any industrial, trade or business process, and premises are used for industrial purposes where they are used for the purposes of any treatment or process as well as where they are used for the purpose of manufacturing.
(7) No order shall be made under subsection (4) above unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.
(1) Where this section applies, the enforcing authority shall itself have power, in a case falling within paragraph (a) or (b) of section 78E(1) above, to do what is appropriate by way of remediation to the relevant land or waters.
(2) Subsection (1) above shall not confer power on the enforcing authority to do anything by way of remediation if the authority would, in the particular case, be precluded by section 78YB below from serving a remediation notice requiring that thing to be done.
(3) This section applies in each of the following cases, that is to say—
(a) where the enforcing authority considers it necessary to do anything itself by way of remediation for the purpose of preventing the occurrence of any serious harm, or serious pollution of controlled waters, of which there is imminent danger;
(b) where an appropriate person has entered into a written agreement with the enforcing authority for that authority to do, at the cost of that person, that which he would otherwise be required to do under this Part by way of remediation;
(c) where a person on whom the enforcing authority serves a remediation notice fails to comply with any of the requirements of the notice;
(d) where the enforcing authority is precluded by section 78J or 78K above from including something by way of remediation in a remediation notice;
(e) where the enforcing authority considers that, were it to do some particular thing by way of remediation, it would decide, by virtue of subsection (2) of section 78P below or any guidance issued under that subsection,—
(i) not to seek to recover under subsection (1) of that section any of the reasonable cost incurred by it in doing that thing; or
(ii) to seek so to recover only a portion of that cost;
(f) where no person has, after reasonable inquiry, been found who is an appropriate person in relation to any particular thing.
(4) Subject to section 78E(4) and (5) above, for the purposes of this section, the things which it is appropriate for the enforcing authority to do by way of remediation are—
(a) in a case falling within paragraph (a) of subsection (3) above, anything by way of remediation which the enforcing authority considers necessary for the purpose mentioned in that paragraph;
(b) in a case falling within paragraph (b) of that subsection, anything specified in, or determined under, the agreement mentioned in that paragraph;
(c) in a case falling within paragraph (c) of that subsection, anything which the person mentioned in that paragraph was required to do by virtue of the remediation notice;
(d) in a case falling within paragraph (d) of that subsection, anything by way of remediation which the enforcing authority is precluded by section 78J or 78K above from including in a remediation notice;
(e) in a case falling within paragraph (e) or (f) of that subsection, the particular thing mentioned in the paragraph in question.
(5) In this section “the relevant land or waters” means—
(a) the contaminated land in question;
(b) any controlled waters affected by that land; or
(c) any land adjoining or adjacent to that land or those waters.
(1) Where, by virtue of section 78N(3)(a), (c), (e) or (f) above, the enforcing authority does any particular thing by way of remediation, it shall be entitled, subject to sections 78J(7) and 78K(6) above, to recover the reasonable cost incurred in doing it from the appropriate person or, if there are two or more appropriate persons in relation to the thing in question, from those persons in proportions determined pursuant to section 78F(7) above.
(2) In deciding whether to recover the cost, and, if so, how much of the cost, which it is entitled to recover under subsection (1) above, the enforcing authority shall have regard—
(a) to any hardship which the recovery may cause to the person from whom the cost is recoverable; and
(b) to any guidance issued by the Secretary of State for the purposes of this subsection.
(3) Subsection (4) below shall apply in any case where—
(a) any cost is recoverable under subsection (1) above from a person—
(i) who is the owner of any premises which consist of or include the contaminated land in question; and
(ii) who caused or knowingly permitted the substances, or any of the substances, by reason of which the land is contaminated land to be in, on or under the land; and
(b) the enforcing authority serves a notice under this subsection (in this Part referred to as a “charging notice”) on that person.
(4) Where this subsection applies—
(a) the cost shall carry interest, at such reasonable rate as the enforcing authority may determine, from the date of service of the notice until the whole amount is paid; and
(b) subject to the following provisions of this section, the cost and accrued interest shall be a charge on the premises mentioned in subsection (3)(a)(i) above.
(5) A charging notice shall—
(a) specify the amount of the cost which the enforcing authority claims is recoverable;
(b) state the effect of subsection (4) above and the rate of interest determined by the authority under that subsection; and
(c) state the effect of subsections (7) and (8) below.
(6) On the date on which an enforcing authority serves a charging notice on a person, the authority shall also serve a copy of the notice on every other person who, to the knowledge of the authority, has an interest in the premises capable of being affected by the charge.
(7) Subject to any order under subsection (9)(b) or (c) below, the amount of any cost specified in a charging notice and the accrued interest shall be a charge on the premises—
(a) as from the end of the period of twenty-one days beginning with the service of the charging notice, or
(b) where an appeal is brought under subsection (8) below, as from the final determination or (as the case may be) the withdrawal, of the appeal,
until the cost and interest are recovered.
(8) A person served with a charging notice or a copy of a charging notice may appeal against the notice to a county court within the period of twenty-one days beginning with the date of service.
(9) On an appeal under subsection (8) above, the court may—
(a) confirm the notice without modification;
(b) order that the notice is to have effect with the substitution of a different amount for the amount originally specified in it; or
(c) order that the notice is to be of no effect.
(10) Regulations may make provision with respect to—
(a) the grounds on which appeals under this section may be made; or
(b) the procedure on any such appeal.
(11) An enforcing authority shall, for the purpose of enforcing a charge under this section, have all the same powers and remedies under the [1925 c. 20.] Law of Property Act 1925, and otherwise, as if it were a mortgagee by deed having powers of sale and lease, of accepting surrenders of leases and of appointing a receiver.
(12) Where any cost is a charge on premises under this section, the enforcing authority may by order declare the cost to be payable with interest by instalments within the specified period until the whole amount is paid.
(13) In subsection (12) above—
“interest” means interest at the rate determined by the enforcing authority under subsection (4) above; and
“the specified period” means such period of thirty years or less from the date of service of the charging notice as is specified in the order.
(14) Subsections (3) to (13) above do not extend to Scotland.
(1) If, in a case where a local authority has served a remediation notice, the contaminated land in question becomes a special site, the appropriate Agency may adopt the remediation notice and, if it does so,—
(a) it shall give notice of its decision to adopt the remediation notice to the appropriate person and to the local authority;
(b) the remediation notice shall have effect, as from the time at which the appropriate Agency decides to adopt it, as a remediation notice given by that Agency; and
(c) the validity of the remediation notice shall not be affected by—
(i) the contaminated land having become a special site;
(ii) the adoption of the remediation notice by the appropriate Agency; or
(iii) anything in paragraph (b) above.
(2) Where a local authority has, by virtue of section 78N above, begun to do any thing, or any series of things, by way of remediation—
(a) the authority may continue doing that thing, or that series of things, by virtue of that section, notwithstanding that the contaminated land in question becomes a special site; and
(b) section 78P above shall apply in relation to the reasonable cost incurred by the authority in doing that thing or those things as if that authority were the enforcing authority.
(3) If and so long as any land is a special site, the appropriate Agency may from time to time inspect that land for the purpose of keeping its condition under review.
(4) If it appears to the appropriate Agency that a special site is no longer land which is required to be designated as such a site, the appropriate Agency may give notice—
(a) to the Secretary of State, and
(b) to the local authority in whose area the site is situated,
terminating the designation of the land in question as a special site as from such date as may be specified in the notice.
(5) A notice under subsection (4) above shall not prevent the land, or any of the land, to which the notice relates being designated as a special site on a subsequent occasion.
(6) In exercising its functions under subsection (3) or (4) above, the appropriate Agency shall act in accordance with any guidance given for the purpose by the Secretary of State.
(1) Every enforcing authority shall maintain a register containing prescribed particulars of or relating to—
(a) remediation notices served by that authority;
(b) appeals against any such remediation notices;
(c) remediation statements or remediation declarations prepared and published under section 78H above;
(d) in relation to an enforcing authority in England and Wales, appeals against charging notices served by that authority;
(e) notices under subsection (1)(b) or (5)(a) of section 78C above which have effect by virtue of subsection (7) of that section as the designation of any land as a special site;
(f) notices under subsection (4)(b) of section 78D above which have effect by virtue of subsection (6) of that section as the designation of any land as a special site;
(g) notices given by or to the enforcing authority under section 78Q(4) above terminating the designation of any land as a special site;
(h) notifications given to that authority by persons—
(i) on whom a remediation notice has been served, or
(ii) who are or were required by virtue of section 78H(8)(a) above to prepare and publish a remediation statement,
of what they claim has been done by them by way of remediation;
(j) notifications given to that authority by owners or occupiers of land—
(i) in respect of which a remediation notice has been served, or
(ii) in respect of which a remediation statement has been prepared and published,
of what they claim has been done on the land in question by way of remediation;
(k) convictions for such offences under section 78M above as may be prescribed;
(l) such other matters relating to contaminated land as may be prescribed;
but that duty is subject to sections 78S and 78T below.
(2) The form of, and the descriptions of information to be contained in, notifications for the purposes of subsection (1)(h) or (j) above may be prescribed by the Secretary of State.
(3) No entry made in a register by virtue of subsection (1)(h) or (j) above constitutes a representation by the body maintaining the register or, in a case where the entry is made by virtue of subsection (6) below, the authority which sent the copy of the particulars in question pursuant to subsection (4) or (5) below—
(a) that what is stated in the entry to have been done has in fact been done; or
(b) as to the manner in which it has been done.
(4) Where any particulars are entered on a register maintained under this section by the appropriate Agency, the appropriate Agency shall send a copy of those particulars to the local authority in whose area is situated the land to which the particulars relate.
(5) In any case where—
(a) any land is treated by virtue of section 78X(2) below as situated in the area of a local authority other than the local authority in whose area it is in fact situated, and
(b) any particulars relating to that land are entered on the register maintained under this section by the local authority in whose area the land is so treated as situated,
that authority shall send a copy of those particulars to the local authority in whose area the land is in fact situated.
(6) Where a local authority receives a copy of any particulars sent to it pursuant to subsection (4) or (5) above, it shall enter those particulars on the register maintained by it under this section.
(7) Where information of any description is excluded by virtue of section 78T below from any register maintained under this section, a statement shall be entered in the register indicating the existence of information of that description.
(8) It shall be the duty of each enforcing authority—
(a) to secure that the registers maintained by it under this section are available, at all reasonable times, for inspection by the public free of charge; and
(b) to afford to members of the public facilities for obtaining copies of entries, on payment of reasonable charges;
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.
(9) Registers under this section may be kept in any form.
(1) No information shall be included in a register maintained under section 78R above if and so long as, in the opinion of the Secretary of State, the inclusion in the register of that information, or information of that description, would be contrary to the interests of national security.
(2) The Secretary of State may, for the purpose of securing the exclusion from registers of information to which subsection (1) above applies, give to enforcing authorities directions—
(a) specifying information, or descriptions of information, to be excluded from their registers; or
(b) specifying descriptions of information to be referred to the Secretary of State for his determination;
and no information referred to the Secretary of State in pursuance of paragraph (b) above shall be included in any such register until the Secretary of State determines that it should be so included.
(3) The enforcing authority shall notify the Secretary of State of any information which it excludes from the register in pursuance of directions under subsection (2) above.
(4) A person may, as respects any information which appears to him to be information to which subsection (1) above may apply, give a notice to the Secretary of State specifying the information and indicating its apparent nature; and, if he does so—
(a) he shall notify the enforcing authority that he has done so; and
(b) no information so notified to the Secretary of State shall be included in any such register until the Secretary of State has determined that it should be so included.
(1) No information relating to the affairs of any individual or business shall be included in a register maintained under section 78R above, without the consent of that individual or the person for the time being carrying on that business, if and so long as the information—
(a) is, in relation to him, commercially confidential; and
(b) is not required to be included in the register in pursuance of directions under subsection (7) below;
but information is not commercially confidential for the purposes of this section unless it is determined under this section to be so by the enforcing authority or, on appeal, by the Secretary of State.
(2) Where it appears to an enforcing authority that any information which has been obtained by the authority under or by virtue of any provision of this Part might be commercially confidential, the authority shall—
(a) give to the person to whom or whose business it relates notice that that information is required to be included in the register unless excluded under this section; and
(b) give him a reasonable opportunity—
(i) of objecting to the inclusion of the information on the ground that it is commercially confidential; and
(ii) of making representations to the authority for the purpose of justifying any such objection;
and, if any representations are made, the enforcing authority shall, having taken the representations into account, determine whether the information is or is not commercially confidential.
(3) Where, under subsection (2) above, an authority determines that information is not commercially confidential—
(a) the information shall not be entered in the register until the end of the period of twenty-one days beginning with the date on which the determination is notified to the person concerned;
(b) that person may appeal to the Secretary of State against the decision;
and, where an appeal is brought in respect of any information, the information shall not be entered in the register until the end of the period of seven days following the day on which the appeal is finally determined or withdrawn.
(4) An appeal under subsection (3) above shall, if either party to the appeal so requests or the Secretary of State so decides, take or continue in the form of a hearing (which must be held in private).
(5) Subsection (10) of section 15 above shall apply in relation to an appeal under subsection (3) above as it applies in relation to an appeal under that section.
(6) Subsection (3) above is subject to section 114 of the Environment Act 1995 (delegation or reference of appeals etc).
(7) The Secretary of State may give to the enforcing authorities directions as to specified information, or descriptions of information, which the public interest requires to be included in registers maintained under section 78R above notwithstanding that the information may be commercially confidential.
(8) Information excluded from a register shall be treated as ceasing to be commercially confidential for the purposes of this section at the expiry of the period of four years beginning with the date of the determination by virtue of which it was excluded; but the person who furnished it may apply to the authority for the information to remain excluded from the register on the ground that it is still commercially confidential and the authority shall determine whether or not that is the case.
(9) Subsections (3) to (6) above shall apply in relation to a determination under subsection (8) above as they apply in relation to a determination under subsection (2) above.
(10) Information is, for the purposes of any determination under this section, commercially confidential, in relation to any individual or person, if its being contained in the register would prejudice to an unreasonable degree the commercial interests of that individual or person.
(11) For the purposes of subsection (10) above, there shall be disregarded any prejudice to the commercial interests of any individual or person so far as relating only to the value of the contaminated land in question or otherwise to the ownership or occupation of that land.
Environment Act 1995