| |
Application to the court by Secretary of State
17.
- (1) If a public gas transporter carries out pipe-line works-
(a) without all applicable requirements of these Regulations having first been complied with; or
(b) without any necessary consent of the Secretary of State under regulation 14 above (consent to pipe-line works), or in breach of a condition attached to such a consent under paragraph (1) of that regulation,
the court may, on the application of the Secretary of State, make an order restraining the public gas transporter from proceeding or continuing with the works or compelling him to the performance of any act required of him by any such condition.
(2) Subject to paragraph (3) below, the court may, in addition to making such an order as is mentioned in paragraph (1) above, make an order requiring-
(a) the removal, so far as is practicable in all the circumstances, of any pipe-line works already carried out-
(i) without any such requirements as are mentioned in paragraph (1)(a) above having been complied with; or
(ii) without any such consent or in breach of any such condition as are mentioned in paragraph (1)(b) above; and
(b) where it orders the removal of any works, the reinstatement of the site where the works had been carried out.
(3) The court shall not make an order under this regulation in respect of a breach of any such condition as is mentioned in paragraph (1)(b) above where it is satisfied that-
(a) the breach in question was due to circumstances beyond the control of the public gas transporter and the breach could not reasonably have been prevented by the public gas transporter; or
(b) the breach occurred as a result of anything required to be done as a matter of urgency for the purposes of securing the safety of any person.
(4) Where the public gas transporter fails to comply with an order made pursuant to paragraph (2) above within such time as may be specified in it or, in default of such specification, within a reasonable time of the making of the order, the Secretary of State may himself take the action required by the order and the reasonable costs and expenses of doing so shall be recoverable as a debt from the public gas transporter.
(5) Where the Secretary of State takes action in accordance with paragraph (4) above, that action shall be without prejudice to any consequences which may flow from the public gas transporter's failure to comply with the order.
Offences
18.
- (1) Subject to paragraph (3) below, any person who intentionally or recklessly submits to the Secretary of State-
(a) an environmental statement;
(b) appropriate particulars; or
(c) any information required to be submitted by virtue of any provision of these Regulations,
which is false or misleading in a material particular shall be guilty of an offence.
(2) Subject to paragraph (3) below, a public gas transporter who-
(a) intentionally acts in breach of the terms of a condition imposed by virtue of regulation 14(1) above; or
(b) carries out any proposed pipe-line works without any necessary consent of the Secretary of State granted in accordance with these Regulations,
shall be guilty of an offence.
(3) It shall be a defence to a charge under paragraph (2)(a) above for the public gas transporter to show-
(a) that he took all reasonable steps and exercised all due diligence to avoid committing the offence; or
(b) that the acts in question were attributable to anything required to be done as a matter of urgency for the purposes of securing the safety of any person.
(4) A person guilty of an offence under this regulation shall on summary conviction be liable to a fine not exceeding the statutory maximum and on conviction on indictment to a fine.
(5) Where an offence under any provision of this regulation committed by a body corporate 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 such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(6) Where the affairs of a body corporate are managed by its members, paragraph (5) above shall apply in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.
(7) No proceedings for an offence under this regulation shall be instituted in England and Wales except-
(a) by or with the consent of the Director of Public Prosecutions; or
(b) by the Secretary of State or a person authorised by him in that behalf.
Service of notices
19.
- (1) Any notice or other document required or authorised to be given to or served on any person under these Regulations may be given or served by-
(a) delivering it to that person; or
(b) leaving it at his proper address; or
(c) sending it to his proper address by the recorded delivery service.
(2) Any notice or other document required or authorised to be given to or served on any body corporate or unincorporated association other than a partnership shall be duly given to or served on the secretary or clerk or other similar officer of that body.
(3) Any notice or other document required or authorised to be given to or served on any partnership may be given to or served on a partner or a person having the control or management of the partnership business.
(4) Subject to paragraphs 5 and 6 below, for the purposes of this regulation, the proper address of any person to whom or on whom any such notice or document is to be given or served shall be his last known address except that such address shall be-
(a) in the case of a body corporate or their secretary or clerk, the address of the registered office or principal office of the body corporate;
(b) in the case of an unincorporated association (other than a partnership) or their secretary or clerk, the address of the principal office of the association; and
(c) in the case of a partnership or a person having control or the management of the partnership business, the address of the principal office of the partnership,
and for the purposes of this paragraph the principal office of a company registered outside Great Britain or of a partnership carrying on business outside Great Britain shall be its principal office within Great Britain.
(5) If the person to be given or served with any such notice or document has furnished the person by whom the notice or document is to be given or served with an address pursuant to any provision of these Regulations, that address shall also be treated for the purposes of this regulation as his proper address.
(6) Any notice or other document relating to pipe-line works which is to be given to or served on a public gas transporter, who has for the purposes of section 46 of the 1986 Act fixed particular offices as appropriate offices in relation to notices concerning matters arising in particular areas, may be given or served by delivering it at or sending it in a pre-paid letter to any office which is an appropriate office in relation to notices concerning matters arising in an area in which any part of the pipe-line works is to be carried out.
John Battle
Minister for Energy and Industry, Department of Trade and Industry
12th June 1999
SCHEDULE 1Regulation 2(1) - definition of environmental statement
INFORMATION TO BE INCLUDED IN AN ENVIRONMENTAL STATEMENT
1.
Description of the proposed pipe-line works, including in particular-
(a) a description of the physical characteristics of the proposed pipe-line works and the proposed pipe-line, and the land-use requirements during the construction and operational phases;
(b) a description of the main characteristics of the production processes proposed, for instance, the nature and quality of the materials to be used;
(c) an estimate, by type and quantity, of expected residues and emissions (including, without limitation, water, air and soil pollution, noise, vibration, light, heat, and radiation) resulting from the proposed pipe-line works and the proposed pipe-line when in operation.
2.
A description of the aspects of the environment likely to be significantly affected by the proposed pipe-line works, including in particular, population, fauna, flora, soil, water, air, climatic factors, material assets, including the architectural and archaeological heritage, landscape and the inter-relationship between the above factors.
3.
A description of the likely significant effects of the proposed pipe-line works on the environment which may result from-
(a) the existence of the proposed pipe-line works or the proposed pipe-line;
(b) the use of natural resources;
(c) the emission of pollutants, the creation of nuisances and the elimination of waste,
and a description of the forecasting methods used to assess the effects on the environment.
4.
A non-technical summary of the information provided under paragraphs 1 to 3 above.
5.
An indication of any difficulties (technical deficiencies or lack of know-how) encountered by the public gas transporter in compiling the required information.
SCHEDULE 2Regulation 2(1) - definition of selection criteria
MATTERS TO BE TAKEN INTO ACCOUNT IN MAKING AN ENVIRONMENTAL DETERMINATION OR GIVING A DIRECTION UNDER REGULATION 3(3)
Characteristics of proposed pipe-line works
1.
The characteristics of proposed pipe-line works must be considered having regard, in particular, to-
(a) the size of the proposed pipe-line works and of the proposed pipe-line;
(b) the cumulation with other developments;
(c) the use of natural resources;
(d) the production of waste;
(e) pollution and nuisances;
(f) the risk of accidents, having regard in particular to substances or technologies used.
Location of proposed pipe-line works
2.
The environmental sensitivity of geographical areas likely to be affected by proposed pipe-line works must be considered, having regard, in particular, to-
(a) the existing land use;
(b) the relative abundance, quality and regenerative capacity of natural resources in the area;
(c) the absorption capacity of the natural environment, paying particular attention to the following areas-
(i) wetlands;
(ii) coastal zones;
(iii) mountain and forest areas;
(iv) nature reserves and parks;
(v) areas classified or protected under member States' legislation; special protection areas designated by member States pursuant to Council Directive 79/409/EEC on the conservation of wild birds[34] and Council Directive 92/43/EEC on the conservation of natural habitats and wild fauna and flora[35];
(vi) areas in which the environmental quality standards laid down in Community legislation have already been exceeded;
(vii) densely populated areas;
(viii) landscapes of historical, cultural or archaeological significance.
Characteristics of the potential impact
3.
The potential significant effects of proposed pipe-line works must be considered in relation to criteria set out under paragraphs 1 and 2 above, and having regard in particular to-
(a) the extent of the impact (geographical area and size of the affected population);
(b) the transfrontier nature of the impact;
(c) the magnitude and complexity of the impact;
(d) the probability of the impact;
(e) the duration, frequency and reversibility of the impact.
SCHEDULE 3Regulation 3
DESCRIPTIONS OF PIPE-LINE WORKS FOR THE PURPOSES OF REGULATION 3 (ENVIRONMENTAL STATEMENTS)
PART 1
DESCRIPTIONS OF PIPE-LINE WORKS IN RESPECT OF WHICH AN ENVIRONMENTAL STATEMENT IS REQUIRED
Pipe-line works in respect of a pipe-line with a diameter of more than 800 millimetres and a length of more than 40 kilometres.
PART 2
DESCRIPTIONS OF PIPE-LINE WORKS IN RESPECT OF WHICH AN ENVIRONMENTAL STATEMENT MAY BE REQUIRED
Pipe-line works (other than works of the kind described in Part 1 above) in respect of a pipe-line-
(a) the whole or any part of which, or the whole or any part of any working width for which, will be within a sensitive area; or
(b) which will have a design operating pressure exceeding 7 bar gauge.
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations, which do not apply to Northern Ireland, implement Council Directive 85/337/EEC (O.J. No. L175, 05.7.85, p. 40) as amended by Council Directive 97/11/EC (O.J. No. L73, 3.3.97, p. 5) on the assessment of the effects of certain public and private projects on the environment insofar as it relates to proposed pipe-line works by a public gas transporter. In the Regulations, the expression "public gas transporter" means the holder of a licence under section 7(1) of the Gas Act 1986 (c. 44) authorised to convey gas through pipes (regulation 2(1)).
Directive 85/337/EEC in its unamended form applies to the European Economic Area ("EEA") (see Article 74 of, and paragraph 1 of Annex XX to the Agreement on the European Economic Area (Cm 2073) as adjusted by the Protocol signed at Brussels on 17th March 1993 (Cm 2183) - the Annexes to the Agreement have from time to time been amended by the EEA Joint Committee established under Article 92) with the result that there is only a requirement to provide a member of the EEA which is not a member of the European Union with information in respect of projects likely to have significant trans-boundary effects. Member States (of the European Union), however, are given rights to participate in the decision making process (regulation 13).
The Regulations require a public gas transporter proposing to undertake pipe-line works which meet criteria specified in Part 1 of Schedule 3 to submit an environmental statement in relation to those works and apply to the Secretary of State for consent to carrying them out (regulation 3(1) and (5)). (An environmental statement is a document or documents setting out the main features of the project in question and the likely environmental consequences of that project).
Where the proposed works instead meet criteria specified in Part 2 of Schedule 3, the public gas transporter must before commencing construction either-
(a) obtain from the Secretary of State a determination as to whether the proposed works should be made the subject of an environmental statement by reason of the fact that they would be likely to have significant effects on the environment by virtue of factors such as their nature, size or location, or
(b) give notice that he intends in any event to produce an environmental statement in respect of the pipe-line works (regulation 3(2)).
The matters to be covered by an environmental statement are specified in regulation 2(1) and Schedule 1.
In addition, where it appears to the Secretary of State that any pipe-line works falling outside the specified criteria would nevertheless be likely to have significant effects on the environment he is required to direct a public gas transporter to produce an environmental statement (regulation 3(3)). In any case where the Secretary of State has made a determination that an environmental statement is required, or has given a direction to that effect or the public gas transporter has given notice that he will provide an environmental statement, the consent of the Secretary of State is required before the works can be carried out (regulation 3(5)).
The Regulations set out the procedure to be followed by the Secretary of State in determining at the request of a public gas transporter whether an environmental statement is required (regulation 6), including a requirement for the Secretary of State to consult the relevant planning authorities.
Provision is made requiring the Secretary of State, when so requested, to give a preliminary opinion to a public gas transporter as to the information to be included in an environmental statement which the transporter is to submit (regulation 7). The Secretary of State is required to consult certain public bodies (defined in regulation 2(1) as "the consultation bodies") and the public gas transporter before giving an opinion.
Provision is made for copies of determinations and directions by the Secretary of State as to the need for an environmental statement to be made available to the public by local planning authorities (regulation 8).
Provision is made to enable persons proposing to carry out pipe-line works to obtain information from the consultation bodies to assist in the preparation of environmental statements (regulation 9).
The Regulations also lay down requirements for publicity for and public consultation on the environmental statement and the application for consent (regulation 10), after which the Secretary of State may give a consent to the carrying out of the pipe-line works, with or without conditions, if he judges it appropriate (regulation 14). The Secretary of State must be satisfied before granting a consent that the requirements of the Regulations as to publicity and consultation have been substantially complied with and must consider the representations of the consultation bodies and the public. Provision is also made for consent decisions by the Secretary of State to be made public.
Power is conferred on the Secretary of State to require persons proposing to carry out pipe-line works to provide further information in relation to environmental statements submitted to him and for such information to be subject to publication requirements similar to those laid down by regulation 10 (regulation 11).
Provision is made for other member States to participate in the decision making process in relation to pipe-line works likely to have a significant effect on their environment (regulation 13).
Provision is made by the Regulations for the making of applications to the court by persons challenging certain decisions of the Secretary of State. Subject to certain exceptions, provision is also made for the Secretary of State to make applications to the court to seek remedies in respect of the carrying out of pipe-line works without a consent granted in accordance with these Regulations or in breach of any conditions attached to such a consent (regulations 15, 16 and 17).
Provision is made creating offences in respect of the intentional or reckless submission of false or misleading information pursuant to the Regulations and subject to certain exceptions, the carrying out of pipe-line works without a consent granted pursuant to the Regulations or in breach of any conditions attached to such a consent (regulation 18).
Provision is made in relation to the service of notices and other documents pursuant to the Regulations (regulation 19).
Finally, regulations 4 and 5 deal with the interaction between these Regulations and the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (S.I. 1999/293) and the Environmental Assessment (Scotland) Regulations 1988 (S.I. 1988/1221) in cases where planning permission is required in respect of proposed pipe-line works by virtue of directions given under article 4 of the Town and Country Planning (General Permitted Development) Order 1995 (S.I. 1995/418) or, in Scotland, article 4 of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (S.I. 1992/223).
A regulatory impact assessment is available from Oil and Gas Directorate, Department of Trade and Industry, 1 Victoria Street, London SW1H 0ET (Tel: 0171 215 5151).
Command Paper 9424 (the UNESCO Convention referred to in paragraph (f) of the definition of "sensitive area" in regulation 2(1)) is out of print but photocopies of the document can be obtained by HMSO from the British Lending Library Division (BLLD). Customers, unless already registered with BLLD, should order via HMSO (Photocopies), PO Box 276, London SW8 5DT, enclosing £5.50 per complete copy required.
Notes:
[34]
O.J. No. L103, 25.4.1979, p. 1.back
[35]
O.J. No. L206, 22.7.1992, p. 7.back
ISBN
0 11 082801 1
| |