The Water Environment (Controlled Activities) (Scotland) Regulations 2005

Scottish Statutory Instrument 2005 No. 348

The Water Environment (Controlled Activities) (Scotland) Regulations 2005

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SCOTTISH STATUTORY INSTRUMENTS

2005 No. 348

ENVIRONMENTAL PROTECTION

WATER

The Water Environment (Controlled Activities) (Scotland) Regulations 2005

	Made	7th June 2005
	Coming into force in accordance with regulation 1

ARRANGEMENT OF REGULATIONS

PART I
General

1.	Citation and commencement

2.	Interpretation

3.	Amendment of the Act – controlled activities

4.	Application of the Regulations

5.	Prohibition

6.	Duty to use water efficiently

PART II
Authorisations

7.	General Binding Rules

8.	Registration

9.	Water Use Licence

10.	Groundwater Directive

11.	Power of SEPA to impose authorisation

PART III
Applications and Application Procedure

12.	Form and content of applications for authorisation

13.	Advertisement of application

14.	Further information etc.

15.	Determination of application

16.	Time-limits for determining applications

17.	Determinations of applications by the Scottish Ministers

PART IV
Modification and termination of authorisations

18.	Review of authorisations

19.	Variation of authorisation

20.	Procedure for variation

21.	Request for variation

22.	Transfer of authorisation

23.	Conditions of transferred authorisations

24.	Surrender of authorisation

25.	Determination of application for surrender

26.	Suspension and revocation of authorisation

PART V
Enforcement and other powers

27.	Powers and duty to monitor, enforce etc.

28.	Enforcement notices

29.	Power of SEPA to carry out works

30.	Enforcement notices – rights of entry, compensation

31.	Enforcement by the courts

PART VI
Information and Register

32.	Power of the Scottish Ministers and SEPA to obtain information

33.	Public register of information

34.	Confidential information

35.	Application for determination of commercial confidentiality

36.	Procedure relating to information which might be confidential

37.	Review of determination of commercial confidentiality

38.	Effect of determination

39.	Directions to SEPA concerning confidential information

PART VII
Offences

40.

Offences

41.	Offences by bodies corporate

42.	Offences – acts or default of third person

43.	Admissibility of evidence

44.	Defence to principal offences

45.	Power of court to order offence to be remedied

PART VIII
Appeals

46.	Appeals to the Scottish Ministers

47.	Determination of Appeals

48.	Effect of notices etc. during consideration of appeal

49.	Appeals – miscellaneous

PART IX
General

50.	Application to the Crown

51.	Application to SEPA

52.	Guidance to SEPA

53.

Notices

54.	Transitional, savings and supplemental provisions

SCHEDULE 1

Indicative list of the main pollutants

SCHEDULE 2

Substances referred to in regulation 4(1)(b)

SCHEDULE 3

General Binding Rules

Compensation for Grant of Rights

1.	Interpretation

2.	Period for making an application

3.	Form of application

4.	Loss and damage for which compensation payable

5.	Basis on which compensation assessed

6.	Payment of compensation and determination of disputes

SCHEDULE 8

SCHEDULE 9

Procedures in connection with appeals to the Scottish Ministers

1.	Hearing procedure

2.	Procedure for written representations

3.	Determination and publication of appeal

SCHEDULE 10

Transitional, Savings and Supplemental Provisions

Abstractions and Impoundments

The Scottish Ministers, in exercise of the powers conferred by sections 20, 25, 36(2) and (3) of, and schedule 2 to, the Water Environment and Water Services (Scotland) Act 2003[

PART I

General

Citation and commencement

—(1) These Regulations may be cited as the Water Environment (Controlled Activities) (Scotland) Regulations 2005.

    (2) Subject to paragraphs (3) and (4) these Regulations shall come into force on 1st April 2006.

    (3) Regulation 54 shall come into force for the purposes of paragraphs 7 and 8 of Schedule 10 only, on 1st July 2005.

    (4) Regulation 54 for all other purposes, and the remainder of Schedule 10, shall come into force on 1st October 2005.

Interpretation

—(1) In these Regulations–

"the Act" means the Water Environment and Water Services (Scotland) Act 2003;

"an application" means an application made in accordance with regulation 12;

"authorisation" means an authorisation granted under regulation 7, 8 or 9;

"controlled activity" is any activity referred to in regulation 4(1);

"the Directive" means Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for Community action in the field of water policy as amended[

"general binding rules" has the meaning given in regulation 7;

"land" includes land covered by water, and any works, plant or fixed machinery, building or other structure in, on or over land;

"operator" means, in relation to a controlled activity, any person who carries on or has control over the carrying on of that activity;

"person" includes a body corporate, limited liability partnership and Scottish partnership;

"pollutant" means any substance or heat liable to cause pollution, including those listed in Schedule 1, and for the purposes of this definition "substance" includes bacteria and other pathogens;

"premises" includes any land, vehicle, vessel or mobile plant;

"the register" means the register maintained by SEPA under regulation 33;

"registration" means an authorisation granted under regulation 8;

"responsible person" means the person who is responsible for securing compliance with the terms of a water use licence and has been identified as such by SEPA in accordance with regulation 9(6), and for the purposes of these Regulations includes–

"SEPA" means the Scottish Environment Protection Agency; and

"water use licence" means an authorisation granted under regulation 9.

    (2) A reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication, as defined in section 15 of the Electronic Communications Act 2000[4] which has been recorded in written form and is capable of being reproduced in that form.

Amendment of the Act – controlled activities
     3. —(1) Section 20 of the Act is amended as follows.

    (2) In subsection (3), for paragraphs (b), (c) and (d) there is substituted–

(da) artificial recharge or augmentation of groundwater,".

(3) In subsection (6)–

(a) for the definition of "abstraction" there is substituted–

" "abstraction" means the doing of anything whereby any water is removed or diverted by mechanical means, pipe or any engineering structure or works from any part of the water environment, whether temporarily or permanently, including anything whereby the water is so removed or diverted for the purpose of being transferred to another part of the water environment, and includes–

(b) for the definition of "impounding works" there is substituted–

" "impounding works" means in relation to surface water–

Application of the Regulations
4. —(1) Subject to paragraph (2), these Regulations apply to–

(a) the activities referred to in section 20(3) of the Act;

(b) the direct or indirect discharge, and any activity likely to cause a direct or indirect discharge, into groundwater of the substances listed in Schedule 2; and

(c) any other activity which directly or indirectly has or is likely to have a significant adverse impact on the water environment.

(2) These Regulations do not apply to any activity for which a licence is needed under Part II of the Food and Environment Protection Act 1985[5].

Prohibition
5. No person shall carry on, or shall cause or permit others to carry on, any controlled activity except insofar as it is–

(a) authorised under these Regulations; and

(b) carried on in accordance with that authorisation.

Duty to use water efficiently
6. It shall be the duty of any person carrying out a controlled activity authorised under these Regulations to take all reasonable steps to secure efficient and sustainable water use.

PART II

Authorisations
General Binding Rules

—(1) A controlled activity specified in Column 1 of Part 1 of Schedule 3 is authorised under these Regulations if it is carried out in accordance with the rules of general application ("general binding rules") specified for that activity in Column 2 of that Schedule.

(2) Part 2 of that Schedule has effect for the purposes of the interpretation of the Schedule.

Registration

—(1) Subject to Part 2 of Schedule 10, SEPA may authorise the carrying on of a controlled activity in accordance with the provisions of this regulation.

    (2) SEPA may, in authorising such an activity, impose such conditions as it considers necessary or expedient for the purposes of protection of the water environment.

    (3) An authorisation given under this regulation ("registration") shall be given by registering the particulars specified in paragraph (4) in the register maintained under regulation 33.

    (4) The particulars are–

Water Use Licence
     9. —(1) Subject to Part 2 of Schedule 10, SEPA may authorise the carrying on of a controlled activity under this regulation subject to the conditions provided for in this regulation.

    (2) SEPA shall impose such conditions as it considers necessary or expedient for the purposes of protection of the water environment.

    (3) A condition imposed under this regulation may require an applicant to carry out works or do other things in relation to land not within the ownership or control of that applicant.

    (4) Where a condition is imposed in accordance with paragraph (3), it shall be the responsibility of the applicant to obtain all consents necessary to allow the condition to be complied with.

    (5) When considering whether to grant an authorisation under paragraph (1), and when imposing conditions in respect of a licence under this regulation, SEPA–

(a) shall have regard to all controlled activities being carried on or likely to be carried on in the area of the water environment likely to be affected by the controlled activity to which the application relates;

(b) may have regard to any agreement reached between different persons concerning controlled activities carried on in the relevant area of the water environment.

(6) SEPA shall only grant an authorisation under this regulation if–

(a) a person has been identified who will be responsible for securing compliance with the authorisation and the conditions specified in it;

(b) it is satisfied that that person will secure such compliance; and

(c) it is a condition of that authorisation that that person secures such compliance.

    (7) An authorisation granted under this regulation ("water use licence") shall specify the date on which it takes effect.

Groundwater Directive
     10. —(1) When considering an application in respect of a controlled activity which falls within the provisions of the Groundwater Directive, SEPA shall impose such conditions as it considers necessary to ensure compliance with the Groundwater Directive[6].

    (2) SEPA is the competent authority for the purposes of Articles 2, 8, 12 and 13 of the Groundwater Directive.

Power of SEPA to impose authorisation
     11. —(1) If it appears to SEPA that a person is carrying on (or is likely to carry on) a controlled activity–

(a) which has not been authorised under regulations 8 or 9;

(b) under regulation 7, but that additional measures are necessary to protect the water environment;

(c) under regulation 8 but that it should now be authorised under regulation 9;

(d) under regulation 9 but that it should now be authorised under regulation 8,

SEPA may treat the activity as an activity in respect of which an application has been made, and may, as it thinks fit, grant an authorisation under regulation 8 or 9.

(2) Where SEPA decides to treat an activity as an activity in respect of which an application has been made–

(a) the charge referred to in regulation 12(a) is payable, and

(b) the remaining provisions of Part III apply as if such an application had been made.

(3) SEPA shall give notice to the responsible person, if any, or to the operator that it is treating the activity in accordance with paragraph (1).

PART III

Applications and Application Procedure
Form and content of applications for authorisation

12.

An application to SEPA for an authorisation to carry on one or more controlled activities shall be made in writing, in such form as SEPA may from time to time require, and shall be accompanied by–

Advertisement of application
     13. —(1) Where SEPA receives an application it may, where it considers that the controlled activity has or is likely to have a significant adverse impact on the water environment, require the application to be advertised in accordance with this regulation.

    (2) SEPA shall serve notice requiring the applicant to advertise the application within 28 days beginning with the date on which the notice was served.

    (3) SEPA shall specify in a notice under paragraph (2)–

(a) the form of the advertisement;

(b) the text to be included in the advertisement;

(c) the publications or locations in which the advertisement should be placed; and

(d) the dates between which the advertisement should be placed.

    (4) An advertisement under paragraph (2) shall explain that any person affected or likely to be affected by, or having an interest in, the application may make representations to SEPA in writing within 28 days beginning with the date of the advertisement and give the address to which such representations should be sent.

    (5) SEPA shall consider all written representations made under paragraph (4).

    (6) The requirements of this regulation shall not apply insofar as they would require the advertisement of information which is not to be included in the register maintained under regulation 33 by virtue of regulation 34.

Further information etc.
     14. —(1) SEPA may request such additional information in relation to any application as it reasonably requires.

    (2) SEPA may request such additional information within such period as it may specify, or agree with the applicant in writing.

    (3) SEPA may carry out such examination and investigation as it considers necessary to allow it to make a determination in respect of the application.

    (4) SEPA may require an applicant to nominate a person who shall be responsible for securing compliance with the terms of any authorisation to be granted in accordance with regulation 9, within such period as it may specify.

Determination of application
     15. —(1) Before determining an application SEPA shall–

(a) assess the risk to the water environment posed by the carrying on of the activity referred to in the application;

(b) assess what steps may be taken to ensure efficient and sustainable water use;

(c) apply the requirements of–

(d) have regard to the provisions of the legislation referred to in Part 2 of Schedule 4.

    (2) Where an application is in respect of the carrying on of more than one controlled activity, SEPA may grant or refuse to grant it in relation to any one or more of those activities.

    (3) SEPA shall consider an application and shall either grant or refuse to grant an authorisation to carry on the activity, or, as the case may be, each of the activities referred to in that application, and shall notify the applicant of its decision.

    (4) Where SEPA refuses to grant an application (in whole or in part) it shall, when notifying that refusal, give its reasons for doing so.

    (5) Where SEPA decides to grant an authorisation, it shall, having considered the matters referred to in paragraph (1) and the nature of the impact or likely impact of the activity (whether on its own or in association with other activities) on the water environment, grant it in the form of an authorisation under either–

(a) regulation 8, or

(b) regulation 9.

Time-limits for determining applications
16. —(1) SEPA shall determine an application–

(a) for an authorisation under regulation 8, within 30 days; and

(b) for an authorisation under regulation 9 within 4 months,

beginning with the date on which it receives the application; but may determine it within such other period as may be agreed in writing with the applicant.

(2) For the purposes of calculating the periods mentioned in paragraph (1), SEPA shall disregard any periods–

(a) beginning with the date on which it serves notice under regulation 13(2) and ending with the date by which any written representations must be made under regulation 13(4); and

(b) beginning with the date it requests information under regulation 14(1) and ending with the expiry of the period specified or agreed under regulation 14(2).

    (3) Where SEPA fails to determine the application within the period provided for in paragraph (1) the application shall be deemed to have been refused.

    (4) Where paragraph (3) applies, SEPA shall notify the applicant of that refusal and the reasons for it.

Determinations of applications by the Scottish Ministers
     17. —(1) The Scottish Ministers may direct SEPA to refer to them for their determination–

(a) applications under these Regulations of any class or description specified in the direction;

(b) any particular application, or any part of any particular application,

and the provisions of this regulation apply to any application referred to the Scottish Ministers for their determination in accordance with this paragraph.

    (2) The Scottish Ministers shall consult SEPA before issuing a direction under paragraph (1).

    (3) The Scottish Ministers may cause a local inquiry to be held in relation to any such application, and the provisions of subsections (2) to (8) of section 210 of the Local Government (Scotland) Act 1973[7] (power to direct inquiries) apply to inquiries held in accordance with this provision.

    (4) The provisions of regulations 13, 14 and 15(1) to (3) apply to the Scottish Ministers in respect of an application referred in accordance with paragraph (1) as they do to SEPA in respect of an application made under regulation 12.

    (5) When they have determined an application, the Scottish Ministers shall direct SEPA–

PART IV

Modification and termination of authorisations

Review of authorisations

18.

—(1) SEPA shall periodically review authorisations granted under regulations 8 and 9, and may do so at any time.

(2) SEPA shall periodically review the provisions of Schedule 3 and shall make recommendations, in writing, to Scottish Ministers as to any changes to that Schedule which it considers necessary or appropriate.

Variation of authorisation

19.

—(1) Whether or not as a result of a review under regulation 18(1), SEPA may vary an authorisation granted under regulation 8 or 9.

(2) A variation under paragraph (1) may include removing, adding or amending any condition of an authorisation.

Procedure for variation

20.

—(1) Regulations 12, 13, 14 and 15(1) apply when SEPA is considering variation of an authorisation under regulation 19 as if the variation proposed by SEPA is an application, and the responsible person or operator, as the case may be, is the applicant.

(2) If SEPA decides to vary an authorisation, it shall serve notice on the applicant specifying–

    (3) SEPA may issue a varied authorisation to the applicant incorporating the variations made under this regulation.

Request for variation
     21. —(1) A responsible person or operator may apply to SEPA for a variation of an authorisation granted under regulation 8 or 9.

    (2) The provisions of regulations 12, 13, 14 and 15(1) apply to an application under paragraph (1) as if it is an application.

    (3) SEPA must either grant or refuse to grant (in whole or in part) an application under paragraph (1), and if it refuses to grant the application it must give its reasons for such refusal.

    (4) Where SEPA grants an application under paragraph (1), it shall serve notice on the applicant specifying–

(a) the variations being made to the authorisation; and

(b) the date on which the variations are to take effect, which shall not (unless agreed by the applicant in writing) be less than 3 months from the date on which the notice was served.

    (5) SEPA may issue a varied authorisation to the applicant incorporating the variations made under this regulation.

Transfer of authorisation
     22. —(1) A responsible person may, jointly with another person, apply to transfer an authorisation granted under regulation 9 (in whole or in part) to the other person.

    (2) The provisions of regulation 12 and 14(1) to (3) apply to an application under paragraph (1) as if it is an application.

    (3) SEPA shall not grant an application under paragraph (1) unless it is satisfied that the person to whom the authorisation is to be transferred will secure compliance with the terms, limitations and conditions specified in the authorisation, or relevant part thereof.

    (4) SEPA shall determine an application under this regulation within 2 months beginning with the date on which it receives the application, or such longer period as may be agreed with the applicants in writing.

    (5) SEPA shall notify the applicants of its determination and, if it refuses the application, give its reasons for doing so.

    (6) Where SEPA fails to determine the application within the period specified in paragraph (4), it shall be deemed to have been granted.

Conditions of transferred authorisations
     23. —(1) Where an application under regulation 22 is granted, or deemed to have been granted, the following provisions of this regulation apply.

    (2) In the case of a transfer of the whole of an authorisation SEPA shall send a copy of the amended authorisation specifying–

(a) the date on which the transfer is to have effect; and

(b) the responsible person in respect of the authorisation,

to that responsible person.

(3) In the case of transfer of part of an authorisation, SEPA shall–

(a) issue a new authorisation in respect of the part to be transferred, which specifies–

to the responsible person for that part; and

(b) issue an amended authorisation in respect of the part not so transferred which specifies–

to the responsible person for that part.

Surrender of authorisation
24. —(1) This regulation applies where an authorisation granted under regulation 8 or 9 is in force and either–

(a) it is intended to cease the authorised activity; or

(b) the authorised activity has ceased.

(2) Where paragraph (1) applies and the authorisation is under regulation 8, the operator–

(a) where possible, shall notify SEPA of the intention to cease the authorised activity and the date on which it will cease as soon as that information is known to the operator; and

(b) shall in any event notify SEPA of the cessation of the activity within 7 days of that cessation.

    (3) Where paragraph (1) applies and the authorisation is under regulation 9, the responsible person shall apply to SEPA to surrender the authorisation or part of it.

    (4) The provisions of regulations 12, 13 and 14(1) to (3) apply to an application under paragraph (3) as if it is an application.

    (5) Before determining an application under paragraph (3) SEPA shall–

(a) assess the risk to the water environment posed by the cessation of the activity referred to in paragraph (1); and

(b) take account of the steps (if any) that have been taken and identify any steps necessary to–

Determination of application for surrender
     25. —(1) SEPA shall give notice to the applicant of its determination of an application under regulation 24(3) within 2 months beginning with the date on which SEPA receives the application, or within such longer period as it may agree with the applicant in writing.

    (2) The provisions of regulation 16(2) apply in respect of the period mentioned in paragraph (1) as they apply in respect of the periods mentioned in regulation 16(1).

    (3) Where SEPA grants an application, the notice given under paragraph (1) shall specify the date on which the authorisation ceases to have effect.

    (4) In the case of a partial surrender, if SEPA is of the opinion that it is necessary to vary the authorisation to take account of the surrender, it shall send a notice to the applicant specifying–

(a) variations to the authorisation consequent on the partial surrender; and

(b) the date on which the authorisation, as varied, takes effect.

    (5) If SEPA has failed to determine the application within the period specified in paragraph (1) the application will be deemed to be granted at the end of that period.

Suspension and revocation of authorisation
     26. —(1) SEPA may at any time suspend or revoke an authorisation (in whole or in part) by serving a notice on the responsible person or operator, as the case may be.

    (2) A notice under paragraph (1) shall specify–

(a) in the case of a partial suspension or partial revocation, the extent to which the authorisation is being revoked or suspended;

(b) the date on which the suspension or revocation shall take effect, which shall be at least 28 days after the date on which the notice is served; and

(c) the reasons for the suspension or revocation .

(3) An authorisation shall cease to have effect (in whole or in part) from the date specified in the notice.

PART V

Enforcement and other powers
Powers and duty to monitor, enforce etc.

27.

—(1) It shall be the duty of SEPA to monitor compliance with, and to enforce the provisions of these Regulations.

(2) In the discharge of its duties under paragraph (1) in relation to the Northumbria River Basin District[

(6) The provisions of Parts 4 and 5 of Schedule 6 apply in relation to the exercise of the powers referred to in paragraph (4).

Enforcement notices
28. —(1) This regulation applies where–

(a) a person has carried out, is carrying out or is likely to carry out a controlled activity; and

(b) SEPA is of the opinion that the activity–

(2) SEPA may serve a notice on the responsible person, or the operator, as the case may be, specifying–

(a) the activity;

(b) whether or not that activity was, is or is likely to be in contravention of an authorisation under these Regulations;

(c) the adverse impacts or the likely adverse impacts on the water environment; or

(d) the direct or indirect, or likely direct or indirect discharge into groundwater; and

(e) the steps to be taken by the person responsible or the operator which SEPA considers to be necessary or appropriate to prevent, mitigate or remedy the contravention of the authorisation, the adverse impacts on the water environment or the direct or indirect discharge into groundwater.

(3) The steps referred to in paragraph 2(e) may include cessation of a controlled activity for such period as SEPA considers necessary or appropriate.

(4) SEPA shall revoke a notice served under paragraph (2) where–

(a) the contravention or likely contravention of an authorisation has ceased and is unlikely to recur, and any remedial mitigating or preventive steps required by SEPA have been carried out;

(b) the adverse impacts or likely adverse impacts on the water environment have ceased and are unlikely to recur and any remedial mitigating or preventive steps required by SEPA have been carried out;

(c) the direct or indirect, or likely direct or indirect discharge to groundwater has ceased and is unlikely to recur and any remedial mitigating or preventive steps required by SEPA have been carried out.

(5) SEPA may impose such time limits as it considers appropriate in a notice under paragraph (2) and may describe a time limit by reference to the completion of steps or any other requirement specified in that notice.

Power of SEPA to carry out works
29. —(1) Where SEPA considers that a notice should be served under regulation 28(2), it shall be entitled to take any steps that would be identified in that notice, or secure that those steps are taken, if–

(a) it considers it necessary to do so forthwith; or

(b) it appears to SEPA, after reasonable inquiry, that no person can be found on whom to serve that notice.

(2) Where SEPA has–

(a) carried out, or secured the carrying out of, any investigation to establish whether or not a notice under regulation 28(2) is necessary, and if necessary, on whom it requires to be served; or

(b) taken steps, or secured that steps were taken under paragraph (1),

it shall be entitled to recover the costs of doing so from the responsible person or operator who has carried out, is carrying out or is likely to carry out the activity in respect of which the notice is served.

Enforcement notices – rights of entry, compensation etc.

     30. —(1) A notice under regulation 28(2) may require the responsible person or operator to carry out work in relation to land outwith the ownership or control of that person.

    (2) Where paragraph (1) applies, any person whose consent is required before that work may be carried out shall grant, or join in granting such rights in relation to any land as will enable the notice to be complied with.

    (3) Where paragraph (1) applies, SEPA shall, before serving a notice under regulation 28(2), insofar as it is reasonably practicable, consult such persons as appear to it to be–

(a) the owner or occupier of land which will be affected by the notice; and

(b) any person who might be required under paragraph (2) to grant or join in granting any rights,

in respect of the rights which that owner, occupier, or person, may be required to grant.

    (4) A notice shall not be regarded as invalid by reason only of a failure to comply with paragraph (3).

    (5) A person who grants, or joins in granting, any rights in accordance with paragraph (2) shall be entitled to apply for compensation, in accordance with Schedule 7, of such amount and in such manner as may be determined under that Schedule.

    (6) Compensation payable under paragraph (5) shall be paid by the person on whom notice under regulation 28(2) was served or would have been served but for regulation 29(1).

    (7) Where no person can be found by whom compensation should be payable or where a person found liable in compensation has failed to make the payment of it, compensation under this regulation shall be payable by SEPA; and SEPA shall be entitled to recover any payment of compensation made by it under this paragraph from any person on whom notice under regulation 28(2) was served or would have been served but for regulation 29(1).

Enforcement by the courts
     31. If SEPA is of the opinion that proceedings for an offence under regulation 40(1)(j) would afford an ineffectual remedy against a person who has failed to comply with a requirement of any notice under regulation 28, it may take proceedings in any court of competent jurisdiction for the purpose of securing compliance with that notice.

PART VI

Information and Register
Power of the Scottish Ministers and SEPA to obtain information

32.

—(1) The Scottish Ministers may require SEPA, by notice served on it, to furnish such information about the discharge of its functions under these Regulations as the Scottish Ministers may require.

(2) SEPA may serve on any person a notice requiring that person to furnish to SEPA, within a period or at times specified in the notice and in a form so specified, any information so specified which SEPA reasonably considers is necessary for the purpose of any function conferred on SEPA by–

(a) the Act;

(b) the Water Environment (Water Framework Directive) (Northumbria River Basin District) Regulations 2003[

    (3) The information which a person may be required to furnish under paragraph (2) shall include information which, although it is not in the possession of that person or would not otherwise come into the possession of that person, is information which it is reasonable to require that person to obtain for the purposes of complying with the information notice.

    (4) Nothing in this regulation authorises the Scottish Ministers or SEPA to require disclosure of anything which a person would be entitled to refuse to disclose on grounds of confidentiality in proceedings in the Court of Session.

Public register of information
     33. —(1) Subject to paragraph (5) and regulation 34, it shall be the duty of SEPA, to maintain a register containing the particulars described in Schedule 8.

    (2) Where, by virtue of regulation 34, information of any description is not included in the register maintained by SEPA under this regulation, a statement shall be entered in the register indicating the existence of information of that description.

    (3) It shall be the duty of SEPA–

(a) to secure that the register maintained by it under this regulation is 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.

    (4) The register maintained by SEPA under this regulation may be kept in any form.

    (5) Where the Scottish Ministers exercise functions under regulation 51, they shall send any particulars referred to in Schedule 8 which relate to that exercise of functions to SEPA, and SEPA shall enter those particulars in the register.

Confidential information
     34. —(1) Information relating to the affairs of any individual or business which is commercially confidential shall only be included in the register if–

(a) the individual or the person for the time being carrying on the business has given consent to that inclusion; or

(b) the information requires to be included in the register in pursuance of a direction under regulation 39.

    (2) For the purposes of these Regulations, information is only commercially confidential in relation to the affairs of any individual or business if SEPA has determined that putting it on the register would prejudice to an unreasonable degree the commercial interests of that individual or business.

Application for determination of commercial confidentiality
     35. —(1) Where information is given to SEPA for the purposes of these Regulations, the person giving it may apply to SEPA to have the information excluded from the register on the ground that it is commercially confidential (as regards that person or another person).

    (2) The application under paragraph (1) shall include representations indicating why the applicant considers the information commercially confidential, together with such further information in support of the application as the applicant considers appropriate.

    (3) The provisions of regulation 14(1) and (2) shall apply to an application under paragraph (1) as they do to an application.

    (4) SEPA shall determine whether the information is or is not commercially confidential and shall give notice of its determination to the applicant within 28 days beginning with the date of the application or within such longer period as may be agreed with the applicant in writing.

    (5) The provisions of regulation 16(2)(b) shall apply in respect of the period mentioned in paragraph (4) as they apply in respect of the periods mentioned in regulation 16(1).

    (6) If SEPA fails to give notice of its determination of an application under paragraph (2) within the period allowed by or under paragraph (4), the information shall be deemed to be commercially confidential.

Procedure relating to information which might be confidential
     36. —(1) Where it appears to SEPA that any information that has been obtained by it under or by virtue of any provision of these Regulations and is required to be included in the register, might be commercially confidential, SEPA 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; and

(b) give that person a reasonable opportunity–

    (2) The provisions of regulation 14(1) and (2) shall apply to an objection under paragraph (1) as they do to an application.

    (3) SEPA shall determine whether the information is or is not commercially confidential and shall give notice of its determination to the person to whom or whose business it relates.

    (4) This regulation does not apply where the information is the subject of an application under regulation 35.

Review of determination of commercial confidentiality
     37. —(1) SEPA shall periodically review its determinations under this Part that information is commercially confidential, and may do so at any time.

    (2) Where SEPA is carrying out a review under paragraph (1), it shall–

(a) give the person to whom or to whose business the determination relates notice that it is reviewing that determination; and

(b) give that person a reasonable opportunity of making representations regarding the commercial confidentiality of the information, including an indication of why the person may consider that the information remains commercially confidential, together with such further information in support of those representations as the person considers appropriate.

    (3) The provisions of regulation 14(1) and (2) shall apply to representations made under paragraph (2) as they do to an application.

    (4) SEPA shall determine whether or not the information remains commercially confidential and shall give notice of its determination to that person.

Effect of determination
     38. Subject to the provisions of regulation 48(1)(b), where SEPA has determined under this Part that information is not commercially confidential, the information shall not be entered in the register until the end of the period of 21 days beginning with the date on which the determination was notified.

Directions to SEPA concerning confidential information
     39. The Scottish Ministers may give to SEPA a direction as to specified information, or descriptions of information, which the public interest requires to be included in the register, notwithstanding that the information may be commercially confidential.

PART VII

Offences
Offences

40.

—(1) It is an offence for a person to–

(m) intentionally make a false entry in any record required to be kept as a condition of an authorisation;

(n) with intent to deceive, forge or use a document issued or authorised to be issued under the condition of an authorisation or required for any purpose under a condition of such an authorisation or to make or have in that person's possession a document so closely resembling any such document so as to be likely to deceive; or

(o) cause or permit any other person to commit an offence under sub-paragraphs (a) to (n) above.

(2) A person guilty of an offence under paragraph (1) shall be liable–

(b) on conviction on indictment–

Offences by bodies corporate
41. —(1) Where an offence under these Regulations is committed by–

(a) a body corporate (other than a limited liability partnership) and is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or a person who was purporting to act in any such capacity;

(b) a limited liability partnership and is proved to have been committed with the consent or connivance of, or have been attributable to any neglect on the part of, any member of that partnership or person who was purporting to act as such;

(c) a Scottish partnership (other than a limited liability partnership) and is proved to have been committed with the consent or connivance of, or have been attributable to neglect on the part of, any partner or a person who was purporting to act as such,

that person as well as the body corporate, the limited liability partnership or the partnership, as the case may be, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

    (2) Where the affairs of a body corporate (other than the affairs of a limited liability partnership) are managed by its members, paragraph (1) shall apply in relation to the acts or defaults of a member in connection with the functions of management of that member as if that member were a director of the body corporate.

Offences – acts or default of third person
     42. Where the commission by any person of an offence under these Regulations is due to the act or default of some other person, that other person may be charged with and convicted of the offence by virtue of this regulation whether or not proceedings for the offence are taken against the first-mentioned person.

Admissibility of evidence
     43. —(1) Where–

(a) by virtue of a condition of an authorisation, an entry is required to be made in any record as to the observance of any condition of the authorisation; and

(b) the entry has not been made,

that fact shall be admissible as evidence that that condition has not been observed.

    (2) Information provided or obtained pursuant to or by virtue of a condition of an authorisation 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 paragraph (2), apparatus shall be presumed in any proceedings to register or record accurately, unless the contrary is shown, or the authorisation otherwise provides.

Defence to principal offences
     44. A person shall not be guilty of an offence under regulation 40(1)(a) to (d), (j) or (o) where the contravention is a result of–

(a) –

(b) –

Power of court to order offence to be remedied
45. —(1) Where–

(a) a person is convicted of an offence under regulation 40(1)(a) to (d), (j) or (o) in respect of any controlled activity which has had an adverse impact on the water environment; and

(b) it appears to the court that it is in the power of that person to mitigate or remedy that adverse impact,

the court may, in addition to, or instead of, imposing any punishment, order that person, within such time as may be fixed by the order of the court, to take such steps as may be specified in that order for remedying those matters.

    (2) Before making such an order, the court shall have regard to any representations by SEPA as to the steps required to mitigate or remedy the adverse impact.

    (3) The time fixed by an order of the court under paragraph (1) may be extended or further extended by a further order of the court on an application made before the end of the time originally fixed or extended under this paragraph, as the case may be.

    (4) As long as an order under this regulation is in force, the convicted person shall not be liable under regulation 40(1) as regards the matters in respect of which steps require to be taken in accordance with that order.

PART VIII

Appeals
Appeals to the Scottish Ministers

46.

The following persons, namely:–

may appeal against the decision of SEPA to the Scottish Ministers.

Determination of Appeals
47. On determining an appeal against a decision of SEPA referred to in regulation 46, the Scottish Ministers may–

(a) affirm the decision, or any part of it;

(b) where the decision was a refusal to–

direct SEPA to grant the authorisation, the form of authorisation or vary the conditions of the authorisation, as the case may be;

(c) where the decision was as to the conditions attached to an authorisation, quash or vary all or any of the conditions of the authorisation;

(d) where the decision was a refusal to effect the transfer of, or accept the surrender of, an authorisation, direct SEPA to effect the transfer or accept the surrender, as the case may be;

(e) where the decision was to serve a notice under regulation 20(2), 26 or 28(2), either quash or affirm the notice, and if they affirm it, they may do so in its original form or with such modifications as they may think fit;

(f) where the decision was a determination that information is not commercially confidential, either affirm the determination or quash it,

and where they exercise any of the powers in paragraph (b), (c) or (e) the Scottish Ministers may give directions as to the conditions to be attached to the authorisation or the terms of the notice, as the case may be.

Effect of notices etc. during consideration of appeal
48. —(1) Where an appeal is against–

(a) a notice served under regulation 20(2) the notice shall not take effect until the day following the day on which the appeal is finally determined or withdrawn;

(b) a determination under Part VI that information is not commercially confidential, the information shall not be entered in the register until the day following the day on which the appeal is finally determined or withdrawn.

(2) Where an appeal relates to–

(a) the conditions attached to an authorisation under regulation 8 or 9, the bringing of the appeal shall not have the effect of suspending the operation of the conditions;

(b) a notice under regulation 26 or 28(2), the bringing of the appeal shall not have the effect of suspending the operation of the notice.

Appeals – miscellaneous
     49. —(1) The provisions of regulation 15(1) apply where the Scottish Ministers, in exercising any of the powers in regulation 47, give directions as to the conditions to be attached to an authorisation under regulation 8 or 9 as they would apply to SEPA when determining the conditions of the authorisation.

    (2) Schedule 9, which makes provision for procedures for appeals under regulation 46, has effect.

    (3) Section 114 of the Environment Act 1995[14] (delegation of reference of appeals) shall apply to this Part and to Schedule 9 as it applies to appeals referred to in that section.

PART IX

General

Application to the Crown

50.

—(1) Subject to the provisions of this regulation, these Regulations bind the Crown.

    (2) No contravention by the Crown of any provision of these Regulations shall make the Crown criminally liable under regulation 40 and no proceedings may be taken against the Crown under regulation 40 but the Court of Session may, on an application by SEPA, declare unlawful any act or omission of the Crown which constitutes such a contravention.

    (3) Notwithstanding anything in paragraph (2), the provisions of these Regulations shall apply to persons in the public service of the Crown as they apply to other persons.

Application to SEPA

51.

—(1) In the application of these Regulations to SEPA where it is carrying on, or intends to carry on, a controlled activity, and subject to paragraph (2), any functions conferred on SEPA by these Regulations shall instead be carried out by the Scottish Ministers.

(2) Paragraph (1) does not apply to regulations 12(a), 17, 18(2), 27 to 31, 39, 46 to 49 and 52.

Guidance to SEPA

52.

The Scottish Ministers may issue guidance to SEPA with respect to the carrying out of its functions under these Regulations, and SEPA shall have regard to any guidance issued by the Scottish Ministers under this regulation.

Notices

53.

—(1) Any notice served or given under these Regulations by the Scottish Ministers or SEPA–

(2) Any such notice may be served on or given to a person by leaving it at that person's proper address or by sending it by post to that person at that address.

(3) Any such notice may–

(4) For the purpose of this regulation and of paragraph 4 of Schedule 1 to the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999[15] in its application to this regulation, the proper address of any person on or to whom any such notice is to be served or given shall be the last known address of that person, except that–

and for the purposes of this paragraph the principal office of a company registered outside of the United Kingdom or of a partnership carrying on business outside the United Kingdom shall be their principal office within the United Kingdom.

(5) If the person to be served with or given any such notice has specified an address in the United Kingdom other than the proper address of that person within the meaning of paragraph (4) as the one at which that person or someone on behalf of that person will accept notices of the same description as that notice, that address shall be treated for the purposes of this regulation and the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 as the proper address of that person.

Transitional, savings and supplemental provisions
54. The transitional, savings and supplemental provisions contained in Schedule 10 to these Regulations shall have effect.

LEWIS MACDONALD
Authorised to sign by the Scottish Ministers

St Andrew's House, Edinburgh
7th June 2005

SCHEDULE 1

Regulation 2(1)

Indicative list of the main pollutants

     1. Organohalogen compounds and substances which may form such compounds in the aquatic environment.

     2. Organophosphorous compounds.

     3. Organotin compounds.

     4. Substances and preparations, or the breakdown products of such, which have been proved to possess carcinogenic or mutagenic properties or properties which may affect steroidogenic, thyroid, reproduction or other endocrine-related functions in or via the aquatic environment.

     5. Persistent hydrocarbons and persistent and bioaccumulable organic toxic substances.

     6. Cyanides.

     7. Metals and their compounds.

     8. Arsenic and its compounds.

     9. Biocides and plant protection products.

     10. Materials in suspension.

     11. Substances which contribute to eutrophication (in particular, nitrates and phosphates).

     12. Substances which have an unfavourable influence on the oxygen balance (and can be measured using parameters such as biochemical oxygen demand (BOD), and chemical oxygen demand (COD) etc.).

SCHEDULE 2

Regulations 4(1)(b) and

Substances referred to in regulations 4(1)(b) and 28(1)(b)(iii)

1. Subject to paragraph 2, a substance is listed in this Schedule if it belongs to one of the following families or groups of substances–

2. A substance is not listed in this Schedule if it has been determined by SEPA to be inappropriate to be so listed on the basis of a low risk of toxicity, persistence and bioaccumulation.

3. SEPA shall publish any determination it makes under paragraph 2 in such manner as it considers appropriate to bring it to the notice of persons affected by, likely to be affected by, or interested in the determination and shall make copies of the determination available to the public free of charge.

SCHEDULE 3

Regulation 7

General Binding Rules

PART 1

Column 1	Column 2
Activity	Rules
1. The operation of any weir that– (a) is not associated with an abstraction; (b) is not capable of being operated to control the water level upstream of the weir; (c) does not result in the creation of a height differential between the upstream and downstream water surfaces of more than one metre; and (d) was constructed before 1st April 2006.	(a) the weir shall not impede the free passage of salmon and sea trout during periods within which, in the absence of the weir, the flow of the river would be at a level expected to enable migration.
2. The abstraction of less than 10 m³ in any one day.	(a) there shall be a means of demonstrating that the abstraction is less than 10 m³ in any one day, such as a means of measuring the rate of the abstraction or a means of demonstrating that the maximum volume that could be abstracted cannot exceed 10 m³ in any one day; and (b) water leakage shall be kept to a minimum by ensuring all pipe work, storage tanks and other equipment associated with the abstraction and use of the water are maintained in a state of good repair.
3. The construction or extension of any well, borehole or other works by which water may be abstracted, or the installation or modification of any machinery or apparatus by which additional quantities of water may be abstracted, where such works are– (a) not intended for the purpose of abstraction; or (b) intended for the abstraction of less than 10 m³ in any one day; or (c) intended for the abstraction of less than 150 m³ in any period of one year, and the purpose of the abstraction is either– (i) to test for the yield of the borehole or well or the hydraulic properties of the aquifer; or (ii) to sample the water quality.	(a) subject to paragraphs (b) and (c), the construction of the well or borehole shall be such as to avoid the entry of water of a different chemical composition into the body of groundwater; (b) drilling fluids may be introduced into the well or borehole if necessary to facilitate the drilling of the well or borehole provided this does not result in pollution of the water environment; (c) potable water may be introduced into the well or borehole to test the hydraulic properties of the aquifer; and (d) when the well or borehole is not being used for abstraction, it shall be back-filled or sealed to the extent necessary to avoid loss of groundwater from any aquifer.
4. The abstraction from a borehole, and any subsequent discharge of the abstracted water, where the total volume of water abstracted is less than 150 m³ in any period of one year and the purpose of the abstraction is either– (a) to test the yield of the borehole or well or the hydraulic properties of the aquifer; or (b) to sample the water quality.	(a) the abstraction shall not cause the entry of water of a different chemical composition into the body of groundwater; and (b) when the borehole is not being used for abstraction, it shall be back-filled or sealed to the extent necessary to avoid loss of groundwater from any aquifer.
5. The dredging of a river, burn or ditch that– (a) has an average width of less than one metre along the stretch to be worked, as measured at the bottom of the channel; and (b) has been artificially straightened or canalised along the length which is to be worked.	(a) vegetation on any bank of the river, burn or ditch may be removed or modified only to the extent that the works cannot reasonably be carried out without such removal or modification; (b) any vegetation removed shall not be disposed of into the channel; (c) the bed of the channel adjacent to each bank of the river or burn shall be left undisturbed; (d) all reasonable steps shall be taken to prevent the transport of sediments or other matter disturbed by the works into waters beyond the worked stretch; (e) the works shall not be undertaken during periods in which fish are likely to be spawning in the river, burn or ditch nor in the period between any such spawning and the emergence of the juvenile fish; (f) all reasonable steps shall be taken to avoid increased erosion of the bed or banks of the river, burn or ditch as a result of the works; (g) the works shall not result in the heightening of either bank.
6. (i) The construction and maintenance of a minor bridge over a river, burn or ditch; or (ii) the construction, maintenance or removal of a temporary bridge over any river, burn or ditch that has a channel width of less than 5 metres.	(a) vegetation on any bank of the river, burn or ditch shall be removed or modified only to the extent necessary to carry out the works; (b) any vegetation removed shall not be disposed of into the channel; (c) the works shall not prevent the free passage of migratory fish; (d) the works shall not result in the narrowing of the channel width nor the heightening of either bank; (e) if necessary, a temporary culvert may be installed to facilitate the works. The culvert shall not extend more than 10 metres along the length of the river, burn or ditch and shall be removed on completion of the works; (f) the works shall not be undertaken during periods in which fish are likely to be spawning in the river, burn or ditch nor in the period between any such spawning and the emergence of the juvenile fish; (g) all reasonable steps shall be taken to ensure that the works do not result in increased erosion of the bed or banks of the river, burn or ditch; (h) as far as reasonably practicable, within 12 months of the commencement of the works, the bed and banks of the river, burn or ditch shall be reinstated to at least their condition prior to the commencement of the works; and (i) for temporary bridges, as far as reasonably practicable, and within 12 months of the removal of the bridge, the bed and banks shall be reinstated at least to their condition prior to the commencement of the works.
7. The laying of a pipeline or cable by boring beneath the bed and banks of a river, burn or ditch.	(a) the bed and banks shall not be altered as a result of the works other than in accordance with paragraphs (b) and (d); (b) vegetation on any bank of the river, burn or ditch may be removed or modified only to the extent that the works cannot reasonably be carried out without such removal or modification; (c) any vegetation removed shall not be disposed of into the channel; and (d) as far as reasonably practicable, within 12 months of the commencement of the works, the banks of the river, burn or ditch shall be reinstated at least to their condition prior to the commencement of the works.
8. Works to control the erosion of a bank of a river, burn or ditch by revetment.	(a) all reasonable steps shall be taken to ensure that the works do not result in increased erosion of either bank of the river, burn or ditch; (b) the works shall not result in the destabilisation of the bed of the river, burn or ditch upstream or downstream of the works; (c) vegetation on either bank of the river, burn or ditch may be removed or modified only to the extent that the works cannot reasonably be carried out without such removal or modification; (d) any vegetation removed shall not be disposed of into the channel; (e) revetments shall be constructed from one or more of the following: vegetation; geotextiles; wood other than wood treated with preservatives; or non-grouted stone rip-rap; (f) the length of any revetment shall be no more than 10 metres or one channel width, whichever is greater; (g) where wood or stone rip-rap is used for a revetment, the wood or rip-rap shall be placed at the toe of the bank; (h) except for the purpose of repairing an existing revetment no bank protection works shall be undertaken within 5 channel widths or 50 metres (whichever is the greater) of any existing bank protection works on either bank of the river, burn or ditch; (i) the works shall not result in the heightening of either bank; (j) the works shall not be undertaken during periods in which fish are likely to be spawning in the river, burn or ditch nor in the period between any such spawning and the emergence of the juvenile fish; and (k) the revetments shall be maintained in the state of repair required to avoid increased erosion of the banks or destabilisation of the bed.
9. Operating any vehicle, plant or equipment for the purposes of undertaking activity 5, 6, 7 or 8.	(a) any vehicles, plant or other equipment shall only operate in water where it is impracticable for them to operate on dry land; (b) the refuelling of vehicles, plant and other equipment shall be undertaken at least 10 metres from any surface water; (c) any static plant or equipment used within 10 metres of surface water shall be positioned on a suitably sized and maintained impervious drip tray with a capacity equal to 110 % of the capacity of the fuel tank which is supplying the tank or equipment; (d) any vehicle, plant or other equipment used in or near surface water shall not leak any oil; (e) the washing of vehicles, plant or other equipment shall be undertaken at least 10 metres away from any surface water and water from such washing shall not enter any surface water; (f) vehicles, plant or equipment shall not be operated in a river, burn or ditch during periods in which fish are likely to be spawning in the river, burn or ditch nor during the period between any such spawning and the subsequent emergence of the juvenile fish.
10. Discharge of water run-off from a surface water drainage system to the water environment from construction sites, buildings, roads, yards or any other built developments	(a) the discharge shall not result in pollution of the water environment; (b) the discharge shall not contain any trade effluent or sewage, and shall not result in visible discolouration, iridescence, foaming or growth of sewage fungus in the water environment; (c) the discharge shall not result in the destabilisation of the banks or bed of the receiving surface water; (d) the discharge shall not contain any water run-off from any buildings, roads, yards or other built developments, the construction of which is completed after 1st April 2006, or from construction sites operated after 1st April 2006, unless– (i) those developments or construction sites are drained by a SUD system or equivalent equipped to avoid pollution of the water environment; (ii) the run-off is from a development that is a single dwelling and its curtilage; or (iii) the discharge is to coastal water; (e) the discharge shall not contain any water run-off from– (i) fuel delivery areas and areas where vehicles, plant and equipment are refuelled; (ii) vehicle loading or unloading bays where potentially polluting matter is handled; or (iii) oil and chemical storage, handling and delivery areas; constructed after 1st April 2006; (f) all facilities with which the surface water drainage system is equipped to avoid pollution, including oil interceptors, silt traps and SUD system attenuation, settlement and treatment facilities, shall be maintained in a good state of repair; and (g) all reasonable steps shall be taken to ensure that any matter liable to block, obstruct, or otherwise impair the ability of the surface water drainage system to avoid pollution of the water environment is prevented from entering the drainage system.
11. Discharge into a surface water drainage system.	(a) oil, paint, paint thinners, pesticides, detergents, disinfectants or other pollutants shall not be disposed of into a surface water drainage system or onto any surface that drains into a surface water drainage system; (b) any matter liable to block, obstruct, or otherwise impair the ability of the surface water drainage system to avoid pollution of the water environment shall not be disposed of into a surface water drainage system or onto a surface that drains into a surface water drainage system; and (c) sewage and trade effluent shall not be discharged into any surface water drainage system.

PART 2

In this Schedule–

"channel width" means the straight-line distance that is between opposite bank-tops of a river, burn or ditch and which spans the bed of a river, burn or ditch, including any exposed bars and vegetated islands;

"minor bridge" means a bridge having no part of its structure within the channel of a river, burn or ditch and constructed for the purpose of supporting a footpath, cycle route or single-track road;

"oil" means any kind of oil and includes fuel oil, waste oil and hydraulic oil;

"revetment" means a modification to a bank of a river, burn or ditch that increases the resistance of the bank to lateral erosion;

"rip-rap" means irregular shaped stones placed along a bank of a river, burn or ditch for the purpose of increasing the resistance of the bank to erosion;

"sewage" has the same meaning as in section 59 of the Sewerage (Scotland) Act 1968[

"surface water drainage system" means a system, such as a SUD system, that is used to collect and drain surface water run-off from one or more premises and transport it to, and discharge it into, the water environment, and may include, among other things, any surface water sewers and associated inlets, outfalls, gullies, manholes, oil interceptors, silt traps, and attenuation, settlement and treatment facilities;

"temporary bridge" means any bridge which will be removed within a period of 12 months beginning with the date on which its construction commences; and

"trade effluent" has the same meaning as in section 59 of the Sewerage (Scotland) Act 1968.

SCHEDULE 4

Regulation 15(1)

PART 1

The Groundwater Directive

The Directive

The Act

The Water Environment (Water Framework Directive) (Northumbria River Basin District) Regulations 2003[

PART 2

Part 2 of the Nature Conservation Act 2004[

SCHEDULE 5

Regulation 12(a)

Charging Scheme

1. In the case of an authorisation under these Regulations, SEPA may require the payment to it of such charges as it may from time to time provide for in a charging scheme made in accordance with this Schedule.

2. Charges may be made in respect of:

3. A charging scheme may impose:

4. A charging scheme may make such provision for charges as is reasonable or necessary to meet the requirements of paragraph 6, and may in particular provide for different charges to be payable according to:

5. A charging scheme:

6. In making a charging scheme SEPA shall secure that the amounts recovered by way of charges prescribed by the charging scheme are, together with any grants paid to SEPA under section 47 of the Environment Act 1995[33] in respect of the functions under–

the amounts which, taking one year with another need to be recovered by SEPA to meet the costs and expenses which it incurs in carrying out, or having others carry out, those functions.

7. Without prejudice to paragraph 5(b), if it appears to SEPA that any charges due and payable to it in respect of an authorisation have not been paid, it may suspend or revoke the authorisation (in whole or in part).

8. A charging scheme may:

9. SEPA shall not make a charging scheme unless the provisions of the scheme have been approved by the Scottish Ministers.

10. Before submitting a proposed charging scheme to the Scottish Ministers for their approval under paragraph 9, SEPA shall, in such manner as it considers appropriate for bringing it to the attention of persons affected or likely to be affected by, or having an interest in, the scheme, publish a notice–

11. Where any proposed charging scheme has been submitted to the Scottish Ministers for approval under paragraph 9, the Scottish Ministers shall, in determining whether or not to approve the scheme or to approve it subject to modifications–

12. It shall be the duty of SEPA to take such steps as it considers appropriate for bringing the provisions of the charging scheme made by it which is for the time being in force to the attention of persons affected or likely to be affected by, or having an interest in, them.

SCHEDULE 6

Regulation 27(4)

PART 1

Powers
1. To enter at any reasonable time (or, in an emergency, at any time) any premises which that person has reason to believe it is necessary to enter.

2. On entering any premises by virtue of paragraph 1, to take–

     3. To make such examination and investigation as may in the circumstances be necessary.

     4. As regards any premises which that person has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph 3.

     5. To take such measurements and photographs and make such recordings as that person considers necessary for the purpose of any examination or investigation under paragraph 3.

     6. To obtain and to take samples, or cause samples to be taken, of any articles or substances found in or on any premises which that person has power to enter, and of the air, water or land in, on, or in the vicinity of, the premises.

     7. To monitor–

     8. To take steps for the measurement and recording of precipitation.

     9. To install and maintain gauges, or other apparatus and works connected therewith, for any of the purposes mentioned in paragraphs 7 and 8.

     10. To take such steps as may be necessary in order to obtain any information required for any of the purposes mentioned in paragraphs 7 or 8.

     11. In the case of any article or substance found in or on any premises which that person has power to enter, being an article or substance which appears to that person to have, or be likely to have, a significant adverse impact on the water environment, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it, unless that is necessary).

     12. In the case of any such article or substance as is mentioned in paragraph 11, to take possession of it and detain it for so long as is necessary for all or any of the following purposes namely:

13. —(1) Subject to sub paragraph (2), to require any person whom he has reasonable cause to believe has any information relevant to any examination or investigation under paragraph 3 to answer such questions as the authorised person thinks fit to ask.

(2) The person referred to in sub paragraph (1) may only be required to answer such questions in the absence of persons other than–

14. To require the production of, or where the information is recorded electronically, the furnishing of extracts from, any records which are–

and to inspect and take copies of, or of any entry in, the records.

15. To require any person to afford such facilities and assistance with respect to any matters or things within that person's control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred by this regulation.

16. To carry out borings or other works on any premises and to install, keep or maintain monitoring or other apparatus there.

PART 2

Procedures etc.
17. Any person authorised by SEPA under regulation 27(4) shall produce evidence of that person's authorisation before that person exercises any powers conferred by that authorisation.

18. 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 paragraph shall only be effected–

19. Except in an emergency, where an authorised person proposes to enter any premises and–

any entry on to those premises by virtue of this regulation shall only be effected under the authority of a warrant issued in accordance with Part 3 of this Schedule.

20. Where an authorised person proposes to exercise the power conferred by paragraph 11 in the case of an article or substance found on any premises, that person 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.

21. Before exercising the power conferred by paragraph 11 in the case of any article or substance, an authorised person shall consult–

as appear to that authorised person appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which that person proposes to do or cause to be done under the power.

     22. No answer given by a person in pursuance of a requirement imposed under paragraph 13 shall be admissible in evidence against that person in any criminal proceedings.

     23. Nothing in this schedule shall be taken to compel the production by any person of a document of which that person would on grounds of legal professional privilege be entitled to withhold production on an order for the production of documents in an action in the Court of Session.

     24. A person who enters any premises in the exercise of any power conferred by these Regulations must leave the premises as effectually secured against unauthorised entry as that person found them.

PART 3

Issue of warrants
25. If a sheriff or justice of the peace is satisfied that–

the sheriff or justice of the peace may by warrant authorise SEPA to designate a person to exercise the power in relation to those premises, in accordance with the warrant and, if need be, by force.

26. The conditions mentioned in paragraph 25 are–

27. In a case where paragraph 25 applies, a justice of the peace or sheriff shall not issue a warrant under this Schedule by virtue only of being satisfied that the exercise of a power in relation to any premises has been refused, or that a refusal is reasonably apprehended, unless that person is also satisfied that the notice required by paragraph 18 has been given and that the period of that notice has expired.

28. Every warrant under this Schedule shall continue in force until the purposes for which the warrant was issued have been fulfilled.

PART 4

Evidence
29. In any legal proceedings it shall be presumed until the contrary is shown, that any sample–

30. Subject to paragraph 22, information obtained in consequence of the exercise of a power under this Schedule, with or without the consent of any person, shall be admissible in evidence against that or any other person.

31. Without prejudice to the generality of paragraph 30, information obtained by means of monitoring or other apparatus installed on any premises in the exercise of a power under this Schedule with or without the consent of any person in occupation of the premises, shall be admissible in evidence in any proceedings against that or any other person.

PART 5

Compensation
32. —(1) SEPA must compensate any person who has sustained loss or damage by reason of–

unless the damage is attributable to the fault of the person who sustained it.

    (2) SEPA must compensate any person for damage or destruction of an article or substance in exercise of powers under paragraph 11 where that article or substance was found not to have a significant adverse impact on the water environment.

    (3) Any dispute as to a person's entitlement to compensation under paragraph (1) or (2), or as to the amount of such compensation, is to be determined by a single arbiter appointed by agreement between SEPA and the person claiming damage, or in default of agreement, by the President of the Lands Tribunal for Scotland.

    (4) An authorised person shall not be liable in any civil or criminal proceedings for anything done in purported exercise of any of the powers conferred on that person in accordance with regulation 27(4) if the court is satisfied that it was done in good faith and that there were reasonable grounds for doing it.

SCHEDULE 7

Regulation 30(5)

Compensation for Grant of Rights

Interpretation

1. In this Schedule–

"the 1963 Act" means the Land Compensation (Scotland) Act 1963[

"grantor" means a person who has granted or joined in granting any rights pursuant to regulation 30; and

"relevant interest" means an interest in land or waters in respect of which rights have been granted pursuant to regulation 30.

Period for making an application
2. An application for compensation shall be made to the person referred to in regulation 30(6) or, where regulation 29(1)(b) applies and no person has been found, to SEPA, within the period beginning with the date of the grant of the rights in respect of which compensation is claimed and ending on whichever is the latest of the following dates:–

(a) 12 months after the date of the grant of those rights;

(b) where there is an appeal against the works notice which imposed the requirements in relation to which the rights in question were granted, 12 months after the date of the final determination or abandonment of the appeal; or

(c) 6 months after the date on which the rights were first exercised.

Form of application
3. —(1) An application for compensation shall be made in writing and delivered or sent by pre paid post to the last known address for correspondence of the person liable.

(2) The application shall contain, or be accompanied by–

(a) a description of the grant of rights in respect of which the grantor is applying for compensation, and of any relevant plans;

(b) a description of the grantor's relevant interest in respect of which compensation is applied for; and

(c) a statement of the amount of compensation applied for distinguishing the amounts applied for under each of sub-paragraphs (a) to (e) of paragraph 4, indicating how the amount applied for under each sub-paragraph has been calculated.

Loss and damage for which compensation payable
4. Compensation shall be payable under this Schedule for loss and damage of the following descriptions:–

(a) depreciation in the value of any relevant interest to which the grantor is entitled which results from the grant of the rights;

(b) loss or damage, in relation to any relevant interest to which the grantor is entitled, which–

(i) is attributable to the grant of the rights or the exercise of them;

(ii) does not consist of depreciation in the value of that interest; and

(iii) is loss or damage for which the grantor would have been entitled to compensation by way of compensation for disturbance, if that interest had been acquired compulsorily under the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947[

(c) damage to, or injurious affection of, any interest in land to which the grantor is entitled which is not a relevant interest, and which results from the grant of the rights or the exercise of them;

(d) any loss or damage sustained by the grantor, other than in relation to any interest in land to which the grantor is entitled, which is attributable to the grant of the rights or the exercise of them; and

(e) the amount of any valuation and legal expenses reasonably incurred by the grantor in granting the rights and in the preparation of the application for and the negotiation of the amount of compensation (up to the point of referral to the Lands Tribunal under paragraph 6).

Basis on which compensation assessed
5. —(1) The rules set out in section 12 of the 1963 Act (rules for assessing compensation) shall, so far as applicable and subject to any necessary modifications, have effect for the purposes of paragraph 4 as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land.

(2) Where the relevant interest in respect of which compensation is to be assessed is subject to a standard security within the meaning of section 9 of the Conveyancing and Feudal Reform (Scotland) Act 1970[38]–

Payment of compensation and determination of disputes
6. —(1) Amounts of compensation determined under this Schedule shall be payable–

(a) where the person to whom the rights were granted and the grantor or creditor in a standard security agree that a single payment is to be made on a specified date, on that date;

(b) where the person to whom the rights were granted and the grantor or such a creditor agree that payment is to be made in instalments at different dates, on the date agreed as regards each instalment; or

(c) in any other case, subject to any direction of the Lands Tribunal for Scotland as soon as reasonably practicable after the amount of the compensation has been finally determined.

(2) Any question of disputed compensation shall be referred to and determined by the Lands Tribunal for Scotland.

(3) In relation to the determination of any such questions, sections 9 and 11 of the 1963 Act (procedures on reference to the Lands Tribunal and expenses) shall apply as if–

(a) the reference in section 9(1) of the 1963 Act to section 8 were a reference to sub paragraph (1) above; and

(b) references in section 11 of the 1963 Act to the acquiring authority were references to the person to whom the rights were granted.

SCHEDULE 8

Regulation 33

Register

1. The register maintained by SEPA under regulation 33 shall contain all particulars of:

2. Where an application is withdrawn by the applicant at any time before it is determined, all particulars relating to that application which are already in the register shall be removed from the register not less than two months and not more than three months after the date of withdrawal of the application, and no further particulars relating to that application shall be entered in the register.

3. Nothing in paragraph 1 shall require SEPA to keep in the register maintained by it–

4. Paragraph 3(a) shall not apply to any aggregated monitoring data relating to specific impacts or classes of impacts on the water environment from controlled activities generally or from any class of controlled activities.

SCHEDULE 9

Regulation 49

Procedures in connection with appeals to the Scottish Ministers

1. A person who wishes to appeal to the Scottish Ministers under regulation 46 shall give to the Scottish Ministers written notice of the appeal together with the documents specified in paragraph 2 and shall at the same time send to SEPA a copy of that notice together with copies of the documents specified in paragraph 2(a) and (f).

2. The documents mentioned in paragraph 1 are–

3. An appellant may withdraw an appeal by notifying the Scottish Ministers in writing, and shall send a copy of that notification to SEPA.

4. Subject to paragraph 5, notice of appeal in accordance with paragraph 1 is to be given–

5. The Scottish Ministers may in a particular case allow notice of appeal to be given after the expiry of the periods mentioned in paragraph 4(a), (c), or (d).

6. Subject to paragraph 9, SEPA shall, within 14 days of receipt of the copy of the notice of appeal sent in accordance with paragraph 1, give notice of it to–

7. A notice under paragraph 6 shall–

8. SEPA shall, within 14 days of sending a notice under paragraph 6–

     9. In the event of an appeal being withdrawn, SEPA shall give notice of the withdrawal to every person to whom notice was give under paragraph 6.

Hearing procedure
     10. Before determining an appeal under regulation 47, the Scottish Ministers may afford the appellant and SEPA an opportunity of appearing before and being heard by a person appointed by them ("the appointed person") and they shall do so in any case where a request is made by the appellant or SEPA to be so heard.

     11. A hearing held under paragraph 10 may, if the appointed person so decides, be held wholly, or held to any extent, in private.

     12. Where the Scottish Ministers cause a hearing to be held under paragraph 10, they shall give the appellant and SEPA at least 28 days' written notice (or such shorter period of notice as they may agree with the appellant and SEPA) of the date, time and place fixed for the holding of the hearing.

     13. In the case of a hearing which is to be held wholly or partly in public, the Scottish Ministers shall, at least 21 days before the date fixed for the holding of the hearing–

(a) publish a copy of the notice mentioned in paragraph 12 in a newspaper circulating in the locality in which the controlled activity is carried on or is to be carried on;

(b) serve a copy of that notice on every person mentioned in paragraph 6 who has made representations to the Scottish Ministers.

     14. The Scottish Ministers may vary the date fixed for the holding of any hearing and paragraphs 12 and 13 shall apply to the variation of a date as they applied to the date originally fixed.

     15. The Scottish Ministers may also vary the time or place for the holding of a hearing and shall give such notice of any such variation as appears to them to be reasonable.

     16. The persons entitled to be heard at any hearing are the appellant and SEPA.

     17. Nothing in paragraph 16 shall prevent the appointed person from permitting any other persons to be heard at the hearing and such permission shall not be unreasonably withheld.

     18. After the conclusion of a hearing, the appointed person shall make a report to the Scottish Ministers in writing which shall include the conclusions and recommendations of that person or the reasons for not making any recommendation.

     19. Subsections (3) to (8) of section 210 of the Local Government (Scotland) Act 1973[39] (which relates to the costs of and holding of local inquiries) shall apply to hearings held under this paragraph by an appointed person as they apply to inquiries held under that section, but with the following modifications, that is to say:–

(f) with the substitution in subsection (7B) (power to prescribe daily amount)–

(g) with the substitution in subsection (8) (certification of expenses) for the reference to the Minister, the reference to him and the reference to the Crown of references to the appointed person or the Scottish Ministers.

Procedure for written representations
     20. Where the appeal is to be disposed of on the basis of written representations, SEPA shall submit any written representations to the Scottish Ministers not later than 28 days after receiving a copy of the documents mentioned in paragraph 2(a) and (f).

     21. The appellant shall make any further representations by way of reply to any representations made from SEPA not later than 28 days after the date of submission of those representations by SEPA under paragraph 20.

     22. Any representations made by the appellant or SEPA shall bear the date on which they are submitted to the Scottish Ministers.

     23. When SEPA or the appellant submits any representations to the Scottish Ministers they shall at the same time send a copy of them to the other party.

     24. The Scottish Ministers shall send to the appellant and SEPA a copy of any representations made to them by the persons mentioned in paragraph 6 and shall allow the appellant and SEPA a period of not less than 14 days in which to make representations on them.

     25. The Scottish Ministers may in a particular case–

(a) set later time limits than those mentioned in paragraphs 20, 21 and 23;

(b) require exchanges of representations between the parties in addition to those mentioned in paragraphs 20 and 21.

Determination and publication of appeal
26. The Scottish Ministers shall give notice to the appellant of their determination of the appeal and their reasons for that determination, and shall provide the appellant with a copy of any report mentioned in paragraph 18.

27. The Scottish Ministers shall at the same time send–

(a) a copy of the documents mentioned in paragraph 25 to SEPA and to any persons required under paragraph 3(1)(a) to be notified of the appeal; and

(b) a copy of their determination of the appeal to any person mentioned in paragraph 6 who made representations to the Scottish Ministers and, if a hearing was held, to any other person who made representations in relation to the appeal at the hearing.

SCHEDULE 10

Regulation 54

Transitional, Savings and Supplemental Provisions

PART 1

Water Environment
1. Where on or before 1st July 2005 a person–

(a) holds a consent under section 34 of the Control of Pollution Act 1974[

in respect of an activity which is a controlled activity, the provisions of paragraphs 2 to 6 apply.

     2. Subject to paragraph 3, the person referred to in paragraph 1 must make an application to SEPA under regulation 12 for an authorisation under regulation 9 within the period beginning on 1st October 2005 and ending on 31st March 2006.

     3. Paragraph 2 does not apply where the controlled activity concerned will cease before 1st April 2006.

     4. Regulations 8 to 10, 12, 14, 15(2) to (5), 19 to 21, 35 to 36, 46(a) to (e) and (j), 47 to 49, 52 and 53 shall have effect for the purposes of the consideration of an application under paragraph 2.

     5. Subject to paragraph 6, an authorisation granted by SEPA in respect of an application under paragraph 2 shall take effect on 1st April 2006.

     6. Where–

the consent or activity referred to in paragraph 1 shall, for the purposes of regulation 5, be deemed to be an authorisation granted under regulation 9 subject to the conditions of that consent or in accordance with the description of the activity in the application under paragraph 2, as the case may be, until SEPA has determined the application, or the Scottish Ministers have determined the appeal.

     7. The person referred to in paragraph 1 may make an application under paragraph 2 before 30th September 2005, and any application made before 1st July 2005 shall be treated as if made on that date.

     8. The provisions of paragraphs 3 to 6 apply to an application under paragraph 7 as they do to an application under paragraph 2.

     9. Where a person–

in respect of an activity which is a controlled activity, the provisions of paragraphs 10 to 12 apply.

10. The person referred to in paragraph 9 shall be deemed to have made an application to SEPA on 1st April 2006.

11. –

the consent, authorisation or activity in respect of which an application has been made, shall for the purposes of regulation 5, be deemed to be an authorisation granted under regulation 8, subject to the conditions of that consent or authorisation or in accordance with the description of the activity in the application under paragraph 10, as the case may be, with effect from 1st April 2006.

12. Regulations 8 to 10, 12, 14, 15(2) to (5), 19 to 21, 35, 36, 46(a) to (e) and (j), 47 to 49, 52 and 53 shall have effect for the purposes of consideration of an application under paragraph 10.

PART 2

Pollution Control
     13. Where on 31st March 2006 a relevant authorisation is in force in respect of an activity which is a controlled activity, the provisions of paragraphs 14 to 17 apply.

     14. The relevant authorisations referred to in paragraph 13 shall, for the purposes of regulation 5, be deemed to be an authorisation granted under these Regulations.

     15. SEPA shall review all relevant authorisations referred to in paragraph 13 in accordance with the relevant provisions of the authorising legislation and where that legislation makes provision for variation or transfer of such an authorisation, it may carry out that review at the same time as such a variation or transfer.

     16. When carrying out a review in accordance with paragraph 15, SEPA shall–

(d) have regard to the provisions of the legislation referred to in Part 2 of Schedule 4,

and shall take such steps under the authorising legislation as are necessary to ensure that the relevant authorisations comply with the requirements of these Regulations.

     17. The review required under paragraph 15, and the steps required under paragraph 16 shall be completed by 1st April 2010.

     18. Where, on or after 1st April 2006, an application for a relevant authorisation is made, or if made before that date has not been determined, in respect of an activity which is a controlled activity, the provisions of paragraph 19 and 20 apply.

     19. SEPA shall, when considering an application referred to in paragraph 18–

(d) have regard to the provisions of the legislation referred to in part 2 of Schedule 4,

and shall, if they grant the application, ensure that the relevant authorisation complies with the requirements of these Regulations.

20. Where an application is granted in accordance with paragraph 19, it shall, for the purposes of regulation 5, be deemed to be an authorisation granted under these Regulations.

21. In this Part–

(a) "authorised activity" means an activity referred to in paragraph 14 or 19, as the case may be;

(b) "authorising legislation" means the legislation referred to in paragraph (c); and

(c) "relevant authorisation" means–

(i) an authorisation under Part I of the Environmental Protection Act 1990[

PART 3

Abstractions and Impoundments
     22. Where a person will be carrying out an activity on or after 1st April 2006 which is a controlled activity referred to in section 20(3)(b) or (c) of the Act and which will not be authorised under regulation 7, the provisions of paragraphs 23 to 26 apply.

     23. The person referred to in paragraph 22 must make an application to SEPA for an authorisation under regulation 9 in respect of the activity referred to in that paragraph, within the period beginning on 1st October 2005 and ending on 31st March 2006.

     24. Regulations 8 to 10, 12, 14, 15(2) to (5), 19 to 21, 35, 36, 46(a) to (e) and (j), 47 to 49, 52 and 54 shall have effect for the purposes of the consideration of an application under paragraph 23.

     25. Subject to paragraph 26, an authorisation granted by SEPA in respect of an application under paragraph 23 shall take effect on 1st April 2006.

     26. Where–

the activity referred to in paragraph 22 shall, for the purposes of regulation 5, be deemed to be authorised under these Regulations in accordance with the description of the activity given in the application referred to in paragraph 23, until SEPA has determined the application, or the Scottish Ministers have determined the appeal, as the case may be.

EXPLANATORY NOTE

(This note is not part of the Regulations)