Office of Public Sector Information
SCHEDULE 4 continued PART 2
9.—(1) This Part applies in relation to damage to land.
(2) The remediation must ensure, as a minimum, that the relevant contaminants are removed, controlled, contained or diminished so that the land, taking account of its lawful current use or any planning permission in existence at the time of the damage, no longer poses any significant risk of adverse effects on human health.
(3) The presence of such risks must be assessed through risk-assessment procedures taking into account the characteristic and function of the soil, the type and concentration of the harmful substances, preparations, organisms or micro-organisms, their risk and the possibility of their dispersion.
(4) Natural recovery is a permitted form of remediation in appropriate cases.
Regulations 19 and 21
1. This Part applies when the Secretary of State is not the enforcing authority.
2. Notification of appeal must contain—
(a) a copy of the notification or remediation notice appealed against; and
(b) the grounds of appeal.
3. When notification is received, the Secretary of State must send a copy of the notification of appeal to the enforcing authority, and the enforcing authority must immediately send a copy to any person who appears to it to have a particular interest in the subject matter of the appeal, and notify the Secretary of State whom it has notified.
4. The Secretary of State must notify the appellant of the time limit within which the appellant must provide in writing—
(a) a statement of case; and
(b) all relevant correspondence.
5. When these are received, the Secretary of State must send all the documents to the enforcing authority, giving the enforcing authority a time limit within which it must provide a written response.
6. At the same time the Secretary of State must notify any person notified under paragraph 3 of the time limit under paragraph 5 and invite them make representations before that date.
7. The Secretary of State must then decide whether further evidence is needed, and give directions accordingly.
8. The Secretary of State must then refer the appeal to a person appointed by the Secretary of State to deal with the appeal, and specify to the appointed person whether or not the appeal must be dealt with by written procedure or whether a hearing must be held.
9. Following the conclusion of the appeal by the appointed person, the appointed person must decide the matter or, if so directed by the Secretary of State at any stage before the decision is made, make a recommendation to the Secretary of State, who must decide the appeal.
10. The person deciding the appeal may make such order as to the costs of the parties (including parties who make representation) as is fit.
11. If the Secretary of State is the enforcing authority, the procedures in Part 1 apply except that—
(a) the Secretary of State must appoint an appointed person as soon as notification of appeal is received;
(b) the appointed person must carry out the functions of the Secretary of State specified in that Part; and
(c) the appointed person must in all cases decide the appeal.
Regulation 30
1. This Schedule prescribes—
(a) the period within which a person who grants, or joins in granting, any rights pursuant to regulation 30 may apply for compensation for the grant of those rights;
(b) the manner in which, and the person to whom, such an application may be made; and
(c) the manner of determining such compensation, for determining the amount of such compensation and for making supplemental provision relating to such compensation.
2. In this Schedule—
“the grantor” means the person who grants, or joins in granting, any right; and
“relevant interest” means an interest in land out of which a right has been granted or which is bound by a right granted.
3. An application for compensation must be made before the expiry of a period of 12 months beginning with—
(a) the date of the grant of the rights in respect of which compensation is claimed, or
(b) where there is an appeal against the notice in relation to which those rights were granted, the date on which the appeal is determined or withdrawn,
whichever is the later date.
4.—(1) An application for compensation must be made in writing and delivered at or sent by pre-paid post to the last known address for correspondence of the person to whom the right was granted.
(2) The application must contain—
(a) a copy of the grant of rights in respect of which the grantor is applying for compensation and of any plans attached to such grant;
(b) a description of the exact nature of any interest in land 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 5 and showing how the amount applied for under each sub-paragraph has been calculated.
5. Compensation is payable for loss and damage of the following descriptions—
(a) any depreciation in the value of any relevant interest to which the grantor is entitled which results from the grant of the right;
(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 right or the exercise of it;
(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 Act 1981(54), in pursuance of a notice to treat served on the date on which the grant of the right was made;
(c) damage to any interest in land to which the grantor is entitled which is not a relevant interest and which results from the grant of the right or from the exercise of it;
(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 right or the exercise of it; and
(e) the amount of any valuation and legal costs reasonably incurred by the grantor in granting the right and in the preparation of the application for and the negotiation of the amount of compensation.
6.—(1) The rules set out in section 5 of the Land Compensation Act 1961(55) (rules for assessing compensation) have effect, so far as applicable and subject to any necessary modifications, for the purpose of assessing any compensation 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 any compensation is to be assessed is subject to a mortgage—
(a) the compensation must be assessed as if the interest were not subject to the mortgage;
(b) no compensation is payable in respect of the interest of the mortgagee (as distinct from the interest which is subject to the mortgage); and
(c) any compensation payable in respect of the interest that is subject to the mortgage must be paid to the mortgagee or, if there is more than one mortgagee, to the first mortgagee and must, in either case, be applied as if it were proceeds of sale.
7.—(1) Any question of disputed compensation must be referred to and determined by the Lands Tribunal.
(2) In relation to the determination of any such question of compensation the provisions of sections 2 and 4 of the Land Compensation Act 1961 (procedure on references to the Lands Tribunal and costs) shall apply as if—
(a) the reference in section 2 of the Land Compensation Act 1961 to section 1 of that Act were a reference to sub-paragraph (1) of this paragraph; and
(b) references in section 4 of that Act to the acquiring authority were references to the person to whom the rights were granted.
The Environmental Damage (Prevention and Remediation) Regulations 2009