Environmental Protection Act
Encyclopedia
The Environmental Protection Act 1990 (initialism: EPA) is an Act
of the Parliament of the United Kingdom
that defines, within England and Wales
and Scotland
, the fundamental structure and authority for waste management
and control of emissions
into the environment
.
Part I establishes a general regime by which the Secretary of State
, as of 2008 the Secretary of State for Environment, Food and Rural Affairs
, can prescribe any process or substance
and set limits on it in respect of emissions into the environment. Authorisation and enforcement was originally in the hands of HM Inspectorate of Pollution and local authorities
but, as of 1996, became the responsibility of the Environment Agency
(EA) and Scottish Environment Protection Agency
(SEPA). Operation of a prescribed process is prohibited without approval and there are criminal
sanctions against offenders.
Part II sets out a regime for regulating
and licensing the acceptable disposal of controlled waste on land. Controlled waste is any household
, industrial
and commercial
waste (s.75(4)). Unauthorised or harmful depositing, treatment
or disposal
of controlled waste is prohibited with prohibition enforced by criminal sanctions. Further, there is a broad duty of care on import
ers, producers, carriers, keepers, treaters or disposers of controlled waste to prevent unauthorised or harmful activities. Breach of the duty of care is a crime. The Act demands that the Secretary of State create a National Waste Strategy
for England and Wales, and the SEPA, a Strategy for Scotland. Local authorities have duties to collect controlled waste and to undertake recycling
. There are criminal penalties on households and businesses who fail to cooperate with the local authorities' arrangements. Enforcement of these penalties sometimes proves controversial.
Part IIA was inserted by the Environment Act 1995
and defines a scheme of identification and compulsory remedial action for contaminated land
. Part III defines a class of statutory
nuisance
s over which the local authority can demand remedial action supported by criminal penalties. Part IV defines a set of criminal offences concerning litter
.
Part VI defines a regime of statutory notification and risk assessment
for genetically modified organism
s (GMOs). There are duties with respect to the import, acquisition, keeping, release or marketing
of GMOs and the Secretary of State has the power to prohibit specific GMOs if there is a danger of environmental damage.
Part VII of the Act created three new organisations: the Nature Conservancy Council for England, the Nature Conservancy Council for Scotland, and the Countryside Council for Wales
. Since 1990, the English and Scottish Councils have been the subject of considerable reorganisation and, as of 2008, only the Welsh Council is still governed by the Act.
The Act superseded the requirements under section 1(1)(d) of the Health and Safety at Work etc. Act 1974 in respect of controlling noxious emissions (s.162(2)/ Sch.16).
In the operating year 2005/ 2006, the EA brought 880 prosecutions with an average fine of about £1,700, and 736 in 2006/ 2007 with an average fine of £6,773. There have also been sentences of imprisonment
, including two of over 16 months in 2006/ 2007.
Waste Framework Directive
in England and Wales and Scotland.
The Act was intended to strengthen pollution controls and support enforcement with heavier penalties. Before the Act there had been separate environmental regulation of air, water and land pollution and the Act brought in an integrated scheme that would seek the "best practicable environmental option". There was previously no uniform system of licensing or public right of access to information. The split of the Nature Conservancy Council
(NCC) into English, Welsh and Scottish bodies was controversial. Purportedly forced on Secretary of State Chris Patten
by Secretary of State for Scotland
Malcolm Rifkind
and forestry minister Lord Sanderson
, some saw it as "punishment" for the vigorous opposition the NCC had mounted to afforestation
in the Flow Country
.
(s.2). As of 2008, prescription is by the Environmental Protection (Prescribed Processes and Substances) Regulations 1991 which have been amended several times. Further, the Secretary of State can make regulations to fix emission standards on prescribed processes and substances (s.3).
Once a process is prescribed, it can only be operated on authorisation from the enforcing authority (s.6). Applications must be made to the authority (Sch.1, Pt.1) and the authority can refuse authorisation or give it subject to conditions (s.7). The authorisation is transferable
to somebody else who takes over the undertaking provided that the enforcing authority is notified (s.9). The enforcing authority can revoke the authorisation (s.12) or vary its conditions (s.10) and the operator can apply to have the conditions varied (s.11).
An operator may appeal
a decision about the issue of authorisation, conditions, enforcement or prohibition to the Secretary of State who may hold a hearing
or inquiry
(s.15).
Enforcing authorities must provide public information
on applications, authorisations and enforcement so long as confidentiality
and national security
are protected (ss.20-22).
The meaning of discard was considered by the European Court of Justice
in 2002, where it was held:
pollution of the environment or harm to human health" (s.33(1)(c)).
Except in the case of domestic household waste treated or kept or disposed of on the premises, no person may:
— except under and in accordance with a waste management licence.
, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances":
Under section 34(2) an occupier of domestic property must, "as respects the household waste produced on the property, take reasonable steps to secure that any transfer of waste is only to an authorised person or to a person for authorised transport purposes" but has none of the other section 34(1) duties.
Authorised persons include local authorities who have responsibility for waste collection, persons licensed to manage or registered to transport waste or otherwise exempt persons (s.34(3)).
Section 34(5) allows the Secretary of State to make regulations as to retention of documents and the Environmental Protection (Duty of Care) Regulations 1991 stipulate that:
Section 45 requires waste collection authorities, usually local authorities, to collect household waste unless it is in an isolated location or arrangements can reasonably be expected to be made by the person who controls the waste. They may also collect commercial waste if requested to do so, but are not obliged to provide this service. Industrial waste can only be collected with the consent of the waste disposal authority (s.45(2)). No charge is to be made for collecting household waste, unless the Secretary of State makes regulations specifying certain (i.e. specific) collections that must be paid for (s.45(3)). A reasonable charge is to be made for commercial waste collection (s.45(4)). Waste collection authorities have responsibilities for emptying privies
and cesspools (ss.45(5) and (6)) and have the power to lay pipe
s, sewer
s and other infrastructure to collect waste (s.45(7)). Waste collected by a waste collection authority is the property
of the authority (s.45(9)).
The authority can give a householder notice that waste must be disposed of in a specified receptacle, and in a specified manner (s.46). It is a crime to fail, without reasonable excuse, to observe such requirements. On summary conviction in a Magistrates' Court
, an offender can be fined up to level 3 on the standard scale
(s.46(6)). Authorities also have powers over receptacles for commercial and industrial waste (s.47). There is a system of fixed penalty notice
s for offences under these sections (ss.47ZA-47ZB). Where controlled waste is deposited on land within their responsibilities,authorities may give notice to the occupier to remove it (ss.59-59A). It is a crime to disturb or sort over, unless with consent, waste deposited for collection by the waste collection authority. On summary conviction in a Magistrates' Court, an offender can be fined up to level 5 on the standard scale (s.60).
Waste collection authorities must deliver the waste to waste disposal authorities unless they intend to recycle it themselves (s.48). Waste disposal authorities must dispose of the waste and also provide facilities for householders to deposit their own waste (s.51).
From 31 December 2010, waste collection authorities in England must make arrangements for the separate collection of at least two types of recyclable
waste unless it would be unreasonably costly to do so (s.45A). The Welsh National Assembly has the power to extend this to Wales
(s.45B). Section 55 gives waste disposal authorities and waste collection authorities powers to recycle waste. A disposal authority may:
A waste collection authority may:
of vehicles and clean-up costs.
The Act does not apply to contamination from radioactivity (s.78YC) but similar provisions have been made under subsequent regulations.
Local authorities have a duty periodically to survey their locality and, using guidance defined by the Secretary of State, to designate contaminated land as a special site, advising the EA or SEPA (ss.78B-78C). The authority, EA or SEPA must then serve
a remediation notice on the appropriate person (s.78E).
The appropriate person responsible for remedial work is "any person, or any of the persons, who caused or knowingly permitted the substances" giving rise to the designation "to be in, on or under that land" (s.78F(2)). If no such person can be identified after reasonable enquiries, the present owner or occupier is the appropriate person (s.78F(4)-(5)). Any persons controlling other land to which access is required for remediation must grant such access and may apply to the appropriate person for compensation (s.78G). The appropriate person is deemed to be responsible for remediation of other land into which substances have escaped (s.78K).
The appropriate person may appeal a notice within 21 days to (s.78L):
There is a further right of appeal from the Magistrates' Court to the High Court
. but ultimately it is a crime not to comply with a notice (s.78M). The locat authority, EA or SEPA can perform the remedial work themselves if the appropriate person cannot be found, defaults or requests that they do so (s.78N). The authority have discretion as to whether to make the appropriate person responsible for the costs (s.78P).
Local authorities, the EA and SEPA must maintain a register of notices that is publicly available save for reasons of confidentiality and national security (ss.78R-T).
Some exclusions from these categories exist including contaminated land (s.79(1A)), activities of the armed forces
(ss.79(2) and 79(6A)(b)), certain (i.e. specific) categories of smoke and dark smoke (s.79(3)), traffic
(s.79(6A)(a)) and demonstration
s (s.79(6A)(c)).
Local authorities have a duty to make periodic inspections of their area or in response to a complaint from the public (s.79(1)). The local authority can serve
an offending occupier with an abatement notice to cease the nuisance (s.80(1)). The occupier can appeal
the notice, within 21 days, to the Magistrates' Court, in England and Wales, or Sheriff Court
in Scotland (s.80(3)). Otherwise, it is a crime to fail, without reasonable excuse, to comply with the notice (s.80(4)), punishable on summary conviction by a fine at level 5 of the standard scale, rising by ten percent for every further day on which the nuisance continues (s.80(5)). If the offence is committed by the occupier of business premises, the maximum fine is £40,000 (s.80(6)). Where the notice is not complied with, the local authority may take reasonable action to abate the nuisance and recover the expenses from the occupier (s.81(3)-(4)), if necessary by installments or by making a charge on the property (s.81A(1)).
Any person aggrieved by a statutory nuisance may make a complaint to the Magistrates of Sheriff (s.82(1)). The court can order
the occupier to abate the damage and, in England and Wales only, impose a fine of up to level 5 on the standard scale (s.82(2)). It is a crime, without reasonable excuse, to disobey such an order, punishable on summary conviction by a fine at level 5 of the standard scale, rising by ten percent for every further day on which the nuisance continues (s.82(8)).
Section 84 repeal
s local authority controls over offensive trades under the Public Health Act 1936.
There is also a system of fixed penalty notice
s (s.88). Local authorities and central government have duties to keep roads, highway
s and public spaces free from litter (s.89). Members of the public who are aggrieved by litter in public places can apply to the Magistrates' Court for an abatement notice to order the responsible public body to carry out its duties under section 89 (s.91). Public authorities also have powers to issue litter abatement notices and litter clearing notices on the occupiers of certain (i.e. specific) premises to order clearing of litter (ss.92-92A). Occupiers can appeal against a notice to the Magistrates Court within 21 days (s.92B) but it is otherwise a crime to disobey a notice, punishable on summary conviction to a fine of up to level 4 on the standard scale (s.92C). A local authority may also issue street litter control notices to occupiers of certain (i.e. specific) premises, such as take-out
food establishments, to keep the street and public areas near to their premises clear of litter (s.93).
Local authorities have the power to designate land in order to prevent the distribution of free printed material, such as advertising flyer
s. Offenders face summary conviction in the Magistrates' Court and a fine of up to level 4 on the standard scale, seizure of the material or a fixed penalty notice (s.94B / Sch.3A) Local authorities may seize abandoned shopping trollies
and luggage trollies
, returning them to their owner and imposing a statutory fee, or otherwise disposing of them (s.99 / Sch.4).
Some of the provisions of this part were repealed and superseded by the Clean Neighbourhoods and Environment Act 2005
.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
that defines, within England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
and Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, the fundamental structure and authority for waste management
Waste management
Waste management is the collection, transport, processing or disposal,managing and monitoring of waste materials. The term usually relates to materials produced by human activity, and the process is generally undertaken to reduce their effect on health, the environment or aesthetics...
and control of emissions
Emission standard
Emission standards are requirements that set specific limits to the amount of pollutants that can be released into the environment. Many emissions standards focus on regulating pollutants released by automobiles and other powered vehicles but they can also regulate emissions from industry, power...
into the environment
Environment (biophysical)
The biophysical environment is the combined modeling of the physical environment and the biological life forms within the environment, and includes all variables, parameters as well as conditions and modes inside the Earth's biosphere. The biophysical environment can be divided into two categories:...
.
Part I establishes a general regime by which the Secretary of State
Secretary of State
Secretary of State or State Secretary is a commonly used title for a senior or mid-level post in governments around the world. The role varies between countries, and in some cases there are multiple Secretaries of State in the Government....
, as of 2008 the Secretary of State for Environment, Food and Rural Affairs
Secretary of State for Environment, Food and Rural Affairs
The Secretary of State for Environment, Food and Rural Affairs is a UK cabinet-level position in charge of the Department for Environment, Food and Rural Affairs, and the successor to the positions of Minister of Agriculture, Fisheries and Food and Secretary of State for the Environment, Transport...
, can prescribe any process or substance
Chemical substance
In chemistry, a chemical substance is a form of matter that has constant chemical composition and characteristic properties. It cannot be separated into components by physical separation methods, i.e. without breaking chemical bonds. They can be solids, liquids or gases.Chemical substances are...
and set limits on it in respect of emissions into the environment. Authorisation and enforcement was originally in the hands of HM Inspectorate of Pollution and local authorities
Local government in the United Kingdom
The pattern of local government in England is complex, with the distribution of functions varying according to the local arrangements. Legislation concerning local government in England is decided by the Parliament and Government of the United Kingdom, because England does not have a devolved...
but, as of 1996, became the responsibility of the Environment Agency
Environment Agency
The Environment Agency is a British non-departmental public body of the Department for Environment, Food and Rural Affairs and an Assembly Government Sponsored Body of the Welsh Assembly Government that serves England and Wales.-Purpose:...
(EA) and Scottish Environment Protection Agency
Scottish Environment Protection Agency
The Scottish Environment Protection Agency is Scotland’s environmental regulator. Its main role is to protect and improve Scotland's environment...
(SEPA). Operation of a prescribed process is prohibited without approval and there are criminal
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
sanctions against offenders.
Regulation
Regulation is administrative legislation that constitutes or constrains rights and allocates responsibilities. It can be distinguished from primary legislation on the one hand and judge-made law on the other...
and licensing the acceptable disposal of controlled waste on land. Controlled waste is any household
Household
The household is "the basic residential unit in which economic production, consumption, inheritance, child rearing, and shelter are organized and carried out"; [the household] "may or may not be synonymous with family"....
, industrial
Industry
Industry refers to the production of an economic good or service within an economy.-Industrial sectors:There are four key industrial economic sectors: the primary sector, largely raw material extraction industries such as mining and farming; the secondary sector, involving refining, construction,...
and commercial
Commerce
While business refers to the value-creating activities of an organization for profit, commerce means the whole system of an economy that constitutes an environment for business. The system includes legal, economic, political, social, cultural, and technological systems that are in operation in any...
waste (s.75(4)). Unauthorised or harmful depositing, treatment
Waste treatment
Waste treatment refers to the activities required to ensure that waste has the least practicable impact on the environment. In many countries various forms of waste treatment are required by law.-Solid waste treatment:...
or disposal
Waste management
Waste management is the collection, transport, processing or disposal,managing and monitoring of waste materials. The term usually relates to materials produced by human activity, and the process is generally undertaken to reduce their effect on health, the environment or aesthetics...
of controlled waste is prohibited with prohibition enforced by criminal sanctions. Further, there is a broad duty of care on import
Import
The term import is derived from the conceptual meaning as to bring in the goods and services into the port of a country. The buyer of such goods and services is referred to an "importer" who is based in the country of import whereas the overseas based seller is referred to as an "exporter". Thus...
ers, producers, carriers, keepers, treaters or disposers of controlled waste to prevent unauthorised or harmful activities. Breach of the duty of care is a crime. The Act demands that the Secretary of State create a National Waste Strategy
National Waste Strategy
The National Waste Strategy is a policy of the government of the United Kingdom, and in particular the Department for Environment, Food and Rural Affairs , intended to foster a move to sustainability in waste management within Great Britain.-Structure:...
for England and Wales, and the SEPA, a Strategy for Scotland. Local authorities have duties to collect controlled waste and to undertake recycling
Recycling
Recycling is processing used materials into new products to prevent waste of potentially useful materials, reduce the consumption of fresh raw materials, reduce energy usage, reduce air pollution and water pollution by reducing the need for "conventional" waste disposal, and lower greenhouse...
. There are criminal penalties on households and businesses who fail to cooperate with the local authorities' arrangements. Enforcement of these penalties sometimes proves controversial.
Part IIA was inserted by the Environment Act 1995
Environment Act 1995
The Environment Act 1995 is a United Kingdom Act of Parliament which created a number of new agencies and set new standards for environmental management...
and defines a scheme of identification and compulsory remedial action for contaminated land
Contaminated land
Land that is contaminated contains substances in or under the land that are actually or potentially hazardous to health or the environment. Areas with a long history of industrial production will have many sites which may be affected by their former uses such as mining, industry, chemical and oil...
. Part III defines a class of statutory
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
nuisance
Nuisance
Nuisance is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public or private. A public nuisance was defined by English scholar Sir J. F...
s over which the local authority can demand remedial action supported by criminal penalties. Part IV defines a set of criminal offences concerning litter
Litter
Litter consists of waste products such as containers, papers, wrappers or faeces which have been disposed of without consent. Litter can also be used as a verb...
.
Part VI defines a regime of statutory notification and risk assessment
Risk assessment
Risk assessment is a step in a risk management procedure. Risk assessment is the determination of quantitative or qualitative value of risk related to a concrete situation and a recognized threat...
for genetically modified organism
Genetically modified organism
A genetically modified organism or genetically engineered organism is an organism whose genetic material has been altered using genetic engineering techniques. These techniques, generally known as recombinant DNA technology, use DNA molecules from different sources, which are combined into one...
s (GMOs). There are duties with respect to the import, acquisition, keeping, release or marketing
Marketing
Marketing is the process used to determine what products or services may be of interest to customers, and the strategy to use in sales, communications and business development. It generates the strategy that underlies sales techniques, business communication, and business developments...
of GMOs and the Secretary of State has the power to prohibit specific GMOs if there is a danger of environmental damage.
Part VII of the Act created three new organisations: the Nature Conservancy Council for England, the Nature Conservancy Council for Scotland, and the Countryside Council for Wales
Countryside Council for Wales
The Countryside Council for Wales is an Assembly Government Sponsored Body. It is the Welsh Assembly Government's wildlife conservation authority for Wales...
. Since 1990, the English and Scottish Councils have been the subject of considerable reorganisation and, as of 2008, only the Welsh Council is still governed by the Act.
The Act superseded the requirements under section 1(1)(d) of the Health and Safety at Work etc. Act 1974 in respect of controlling noxious emissions (s.162(2)/ Sch.16).
In the operating year 2005/ 2006, the EA brought 880 prosecutions with an average fine of about £1,700, and 736 in 2006/ 2007 with an average fine of £6,773. There have also been sentences of imprisonment
Imprisonment
Imprisonment is a legal term.The book Termes de la Ley contains the following definition:This passage was approved by Atkin and Duke LJJ in Meering v Grahame White Aviation Co....
, including two of over 16 months in 2006/ 2007.
Background
The Act implements the European UnionEuropean Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
Waste Framework Directive
Waste framework directive
The Waste Framework Directive is an European Union Directive of 17 June 2008 . The first Waste Framework Directive dates back to 1975 and was substantially amended in 1991.The aim of the WFD was to lay the basis to turn the EU into a recycling society....
in England and Wales and Scotland.
The Act was intended to strengthen pollution controls and support enforcement with heavier penalties. Before the Act there had been separate environmental regulation of air, water and land pollution and the Act brought in an integrated scheme that would seek the "best practicable environmental option". There was previously no uniform system of licensing or public right of access to information. The split of the Nature Conservancy Council
Nature Conservancy Council
The Nature Conservancy Council was a United Kingdom government agency responsible for designating and managing National Nature Reserves and other nature conservation areas in Great Britain between 1973 and 1991 ....
(NCC) into English, Welsh and Scottish bodies was controversial. Purportedly forced on Secretary of State Chris Patten
Chris Patten
Christopher Francis Patten, Baron Patten of Barnes, CH, PC , is the last Governor of British Hong Kong, a former British Conservative politician, and the current chairman of the BBC Trust....
by Secretary of State for Scotland
Secretary of State for Scotland
The Secretary of State for Scotland is the principal minister of Her Majesty's Government in the United Kingdom with responsibilities for Scotland. He heads the Scotland Office , a government department based in London and Edinburgh. The post was created soon after the Union of the Crowns, but was...
Malcolm Rifkind
Malcolm Rifkind
Sir Malcolm Leslie Rifkind KCMG QC MP is a British Conservative Party politician and Member of Parliament for Kensington. He served in various roles as a cabinet minister under Prime Ministers Margaret Thatcher and John Major, including Secretary of State for Scotland , Defence Secretary and...
and forestry minister Lord Sanderson
Charles Sanderson, Baron Sanderson of Bowden
Russell Sanderson, Baron Sanderson of Bowden is a British Conservative Party politician and a life peer in the House of Lords....
, some saw it as "punishment" for the vigorous opposition the NCC had mounted to afforestation
Afforestation
Afforestation is the establishment of a forest or stand of trees in an area where there was no forest. Reforestation is the reestablishment of forest cover, either naturally or artificially...
in the Flow Country
Flow Country
The Flow Country is a large, rolling expanse of peatland and wetland area of Caithness and Sutherland in Scotland. It is the largest expanse of blanket bog in Europe, and covers about 4,000 square kilometres ....
.
Part I - Prescribed processes and substances
The Secretary of State has the power to prescribe specific processes and substances by Statutory InstrumentStatutory Instrument
A Statutory Instrument is the principal form in which delegated or secondary legislation is made in Great Britain.Statutory Instruments are governed by the Statutory Instruments Act 1946. They replaced Statutory Rules and Orders, made under the Rules Publication Act 1893, in 1948.Most delegated...
(s.2). As of 2008, prescription is by the Environmental Protection (Prescribed Processes and Substances) Regulations 1991 which have been amended several times. Further, the Secretary of State can make regulations to fix emission standards on prescribed processes and substances (s.3).
Once a process is prescribed, it can only be operated on authorisation from the enforcing authority (s.6). Applications must be made to the authority (Sch.1, Pt.1) and the authority can refuse authorisation or give it subject to conditions (s.7). The authorisation is transferable
Assignment (law)
An assignment is a term used with similar meanings in the law of contracts and in the law of real estate. In both instances, it encompasses the transfer of rights held by one party—the assignor—to another party—the assignee...
to somebody else who takes over the undertaking provided that the enforcing authority is notified (s.9). The enforcing authority can revoke the authorisation (s.12) or vary its conditions (s.10) and the operator can apply to have the conditions varied (s.11).
Enforcement
Processes are stipulated as subject to either central control by the EA or SPA, or local control by the local authority but only with respects to atmospheric pollution (ss.2(4), 4). Such an enforcing authority can issue an enforcement notice or prohibition notice on a noncompliant operator (ss.13-14) and there are criminal penalties including fines and imprisonment for violations (s.23).An operator may appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
a decision about the issue of authorisation, conditions, enforcement or prohibition to the Secretary of State who may hold a hearing
Hearing (law)
In law, a hearing is a proceeding before a court or other decision-making body or officer, such as a government agency.A hearing is generally distinguished from a trial in that it is usually shorter and often less formal...
or inquiry
Public inquiry
A Tribunal of Inquiry is an official review of events or actions ordered by a government body in Common Law countries such as the United Kingdom, Ireland or Canada. Such a public inquiry differs from a Royal Commission in that a public inquiry accepts evidence and conducts its hearings in a more...
(s.15).
Enforcing authorities must provide public information
Open government
Open government is the governing doctrine which holds that citizens have the right to access the documents and proceedings of the government to allow for effective public oversight. In its broadest construction it opposes reason of state and racist considerations, which have tended to legitimize...
on applications, authorisations and enforcement so long as confidentiality
Confidentiality
Confidentiality is an ethical principle associated with several professions . In ethics, and in law and alternative forms of legal resolution such as mediation, some types of communication between a person and one of these professionals are "privileged" and may not be discussed or divulged to...
and national security
National security
National security is the requirement to maintain the survival of the state through the use of economic, diplomacy, power projection and political power. The concept developed mostly in the United States of America after World War II...
are protected (ss.20-22).
Controlled waste
Waste is any substance or object within very broad categories set out in Schedule 2B "which the holder discards or intends or is required to discard" (s.75(2)). Controlled waste is "household, industrial and commercial waste or any such waste" (s.75(4)). The exact definition covers a very broad range of waste.The meaning of discard was considered by the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
in 2002, where it was held:
Unauthorised or harmful deposit, treatment or disposal of controlled waste
No person may "treat, keep or dispose of controlled waste in a manner likely to causeCausation (law)
Causation is the "causal relationship between conduct and result". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is...
pollution of the environment or harm to human health" (s.33(1)(c)).
Except in the case of domestic household waste treated or kept or disposed of on the premises, no person may:
- Deposit controlled waste, or knowinglyMens reaMens rea is Latin for "guilty mind". In criminal law, it is viewed as one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means "the act does not make a person guilty...
cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence (s.33(1)(a); or - Treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of:
- In or on any land; or
- By means of any mobile plant;
— except under and in accordance with a waste management licence.
Duty of care in respect of waste
Section 34(1) imposes a duty on "any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a brokerBroker
A broker is a party that arranges transactions between a buyer and a seller, and gets a commission when the deal is executed. A broker who also acts as a seller or as a buyer becomes a principal party to the deal...
, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances":
- To prevent any contravention by any other person of section 33;
- To prevent any contravention of certain (i.e. specific) provisions of the Pollution Prevention and Control Regulations;
- To prevent the escape of the waste from his control or that of any other person; and
- On the transfer of the waste, to secure:
- That the transfer is only to an authorised person or to a person for authorised transport purposes; and
- That there is transferred such a written description of the waste as will enable other persons to avoid a contravention section 33 o r the Pollution Prevention and Control Regulations.
Under section 34(2) an occupier of domestic property must, "as respects the household waste produced on the property, take reasonable steps to secure that any transfer of waste is only to an authorised person or to a person for authorised transport purposes" but has none of the other section 34(1) duties.
Authorised persons include local authorities who have responsibility for waste collection, persons licensed to manage or registered to transport waste or otherwise exempt persons (s.34(3)).
Section 34(5) allows the Secretary of State to make regulations as to retention of documents and the Environmental Protection (Duty of Care) Regulations 1991 stipulate that:
- All transfers of controlled waste must be accompanied by a transfer note (reg.2);
- Copies of all transfer notes must be kept for two years (reg.3); and
- Transfer notes must be available to the enforcement authority (reg.4).
Waste management licenses
Licenses are issued by waste management authorities and may be subject to conditions (ss.35-36). The Secretary of State may make regulations about what is to be included in the license as a condition (s.35(6)). Licenses are transferable (s.40) and decisions as to refusal to grant a license or as to conditions can be appealed to the Secretary of State (s.43).National and local government responsibilities
Sections 44A and 44B were added by the Environment Act 1995 and require the development of National Waste Strategies for England and Wales, and Scotland respectively.Outhouse
An outhouse is a small structure separate from a main building which often contained a simple toilet and may possibly also be used for housing animals and storage.- Terminology :...
and cesspools (ss.45(5) and (6)) and have the power to lay pipe
Pipe (material)
A pipe is a tubular section or hollow cylinder, usually but not necessarily of circular cross-section, used mainly to convey substances which can flow — liquids and gases , slurries, powders, masses of small solids...
s, sewer
Sanitary sewer
A sanitary sewer is a separate underground carriage system specifically for transporting sewage from houses and commercial buildings to treatment or disposal. Sanitary sewers serving industrial areas also carry industrial wastewater...
s and other infrastructure to collect waste (s.45(7)). Waste collected by a waste collection authority is the property
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
of the authority (s.45(9)).
The authority can give a householder notice that waste must be disposed of in a specified receptacle, and in a specified manner (s.46). It is a crime to fail, without reasonable excuse, to observe such requirements. On summary conviction in a Magistrates' Court
Magistrates' Court
A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...
, an offender can be fined up to level 3 on the standard scale
Standard scale
The standard scale is a system whereby financial criminal penalties in legislation have maximum levels set against a standard scale. Then, when inflation makes it necessary to increase the levels of the fines the legislators need to modify only the scale rather than each individual piece of...
(s.46(6)). Authorities also have powers over receptacles for commercial and industrial waste (s.47). There is a system of fixed penalty notice
Fixed Penalty Notice
Fixed penalty notices were introduced in Britain in the 1950s to deal with minor parking offences. Originally used by police and traffic wardens, their use has extended to other public officials and authorities, as has the range of offences for which they can be used.In recent years, this has...
s for offences under these sections (ss.47ZA-47ZB). Where controlled waste is deposited on land within their responsibilities,authorities may give notice to the occupier to remove it (ss.59-59A). It is a crime to disturb or sort over, unless with consent, waste deposited for collection by the waste collection authority. On summary conviction in a Magistrates' Court, an offender can be fined up to level 5 on the standard scale (s.60).
Waste collection authorities must deliver the waste to waste disposal authorities unless they intend to recycle it themselves (s.48). Waste disposal authorities must dispose of the waste and also provide facilities for householders to deposit their own waste (s.51).
From 31 December 2010, waste collection authorities in England must make arrangements for the separate collection of at least two types of recyclable
Recycling
Recycling is processing used materials into new products to prevent waste of potentially useful materials, reduce the consumption of fresh raw materials, reduce energy usage, reduce air pollution and water pollution by reducing the need for "conventional" waste disposal, and lower greenhouse...
waste unless it would be unreasonably costly to do so (s.45A). The Welsh National Assembly has the power to extend this to Wales
Wales
Wales is a country that is part of the United Kingdom and the island of Great Britain, bordered by England to its east and the Atlantic Ocean and Irish Sea to its west. It has a population of three million, and a total area of 20,779 km²...
(s.45B). Section 55 gives waste disposal authorities and waste collection authorities powers to recycle waste. A disposal authority may:
- Make arrangements to recycle waste;
- Make arrangements to use waste to produce heatHeatIn physics and thermodynamics, heat is energy transferred from one body, region, or thermodynamic system to another due to thermal contact or thermal radiation when the systems are at different temperatures. It is often described as one of the fundamental processes of energy transfer between...
or electricityElectricityElectricity is a general term encompassing a variety of phenomena resulting from the presence and flow of electric charge. These include many easily recognizable phenomena, such as lightning, static electricity, and the flow of electrical current in an electrical wire...
; - Buy or otherwise acquire waste with a view to its being recycled;
- Use, sell or otherwise dispose of waste, or anything produced from such waste.
A waste collection authority may:
- Buy or otherwise acquire waste with a view to recycling it;
- Use, or dispose of by way of sale or otherwise to another person, waste belonging to the authority or anything produced from such waste.
Enforcement
Breach of sections 33 and 34 is a crime and penalties for serious offences by businesses can extend to unlimited fines, imprisonment, seizureSeizure
An epileptic seizure, occasionally referred to as a fit, is defined as a transient symptom of "abnormal excessive or synchronous neuronal activity in the brain". The outward effect can be as dramatic as a wild thrashing movement or as mild as a brief loss of awareness...
of vehicles and clean-up costs.
Part IIA - Contaminated land
Contaminated land is "any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that" (s.78A):- "Significant harm is being caused or there is a significant possibility of such harm being caused; or
- Significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused."
Local authorities have a duty periodically to survey their locality and, using guidance defined by the Secretary of State, to designate contaminated land as a special site, advising the EA or SEPA (ss.78B-78C). The authority, EA or SEPA must then serve
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
a remediation notice on the appropriate person (s.78E).
The appropriate person responsible for remedial work is "any person, or any of the persons, who caused or knowingly permitted the substances" giving rise to the designation "to be in, on or under that land" (s.78F(2)). If no such person can be identified after reasonable enquiries, the present owner or occupier is the appropriate person (s.78F(4)-(5)). Any persons controlling other land to which access is required for remediation must grant such access and may apply to the appropriate person for compensation (s.78G). The appropriate person is deemed to be responsible for remediation of other land into which substances have escaped (s.78K).
The appropriate person may appeal a notice within 21 days to (s.78L):
- The Magistrates' CourtMagistrates' CourtA magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...
, or Sheriff CourtSheriff CourtSheriff courts provide the local court service in Scotland, with each court serving a sheriff court district within a sheriffdom.Sheriff courts deal with a myriad of legal procedures which include:*Solemn and Summary Criminal cases...
in Scotland, where the notice was served by the local authority; or - The Secretary of State, where the notice was served by the EA or SEPA.
There is a further right of appeal from the Magistrates' Court to the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
. but ultimately it is a crime not to comply with a notice (s.78M). The locat authority, EA or SEPA can perform the remedial work themselves if the appropriate person cannot be found, defaults or requests that they do so (s.78N). The authority have discretion as to whether to make the appropriate person responsible for the costs (s.78P).
Local authorities, the EA and SEPA must maintain a register of notices that is publicly available save for reasons of confidentiality and national security (ss.78R-T).
Part III - Statutory nuisances
Section 79 defines several statutory nuisances:- Any premises in such a state as to be prejudicial to healthHealthHealth is the level of functional or metabolic efficiency of a living being. In humans, it is the general condition of a person's mind, body and spirit, usually meaning to be free from illness, injury or pain...
or a nuisanceNuisanceNuisance is a common law tort. It means that which causes offence, annoyance, trouble or injury. A nuisance can be either public or private. A public nuisance was defined by English scholar Sir J. F...
; - SmokeSmokeSmoke is a collection of airborne solid and liquid particulates and gases emitted when a material undergoes combustion or pyrolysis, together with the quantity of air that is entrained or otherwise mixed into the mass. It is commonly an unwanted by-product of fires , but may also be used for pest...
emitted from premises so as to be prejudicial to health or a nuisance; - Fumes or gasGasGas is one of the three classical states of matter . Near absolute zero, a substance exists as a solid. As heat is added to this substance it melts into a liquid at its melting point , boils into a gas at its boiling point, and if heated high enough would enter a plasma state in which the electrons...
es emitted from premises so as to be prejudicial to health or a nuisance; - Any dustDustDust consists of particles in the atmosphere that arise from various sources such as soil dust lifted up by wind , volcanic eruptions, and pollution...
, steamSteamSteam is the technical term for water vapor, the gaseous phase of water, which is formed when water boils. In common language it is often used to refer to the visible mist of water droplets formed as this water vapor condenses in the presence of cooler air...
, smellSmellSmell may refer to:* Olfaction, sense of smell, the ability of humans and other animals to perceive odors* Odor, the percept resultant from the sense of smell...
or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance; - Any accumulation or deposit which is prejudicial to health or a nuisance;
- Any animalAnimalAnimals are a major group of multicellular, eukaryotic organisms of the kingdom Animalia or Metazoa. Their body plan eventually becomes fixed as they develop, although some undergo a process of metamorphosis later on in their life. Most animals are motile, meaning they can move spontaneously and...
kept in such a place or manner as to be prejudicial to health or a nuisance; - NoiseNoiseIn common use, the word noise means any unwanted sound. In both analog and digital electronics, noise is random unwanted perturbation to a wanted signal; it is called noise as a generalisation of the acoustic noise heard when listening to a weak radio transmission with significant electrical noise...
emitted from premises so as to be prejudicial to health or a nuisance; and - Noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicleVehicleA vehicle is a device that is designed or used to transport people or cargo. Most often vehicles are manufactured, such as bicycles, cars, motorcycles, trains, ships, boats, and aircraft....
, machinery or equipment on a highway, road, footway, square or court open to the public.
Some exclusions from these categories exist including contaminated land (s.79(1A)), activities of the armed forces
Armed forces
The armed forces of a country are its government-sponsored defense, fighting forces, and organizations. They exist to further the foreign and domestic policies of their governing body, and to defend that body and the nation it represents from external aggressors. In some countries paramilitary...
(ss.79(2) and 79(6A)(b)), certain (i.e. specific) categories of smoke and dark smoke (s.79(3)), traffic
Traffic
Traffic on roads may consist of pedestrians, ridden or herded animals, vehicles, streetcars and other conveyances, either singly or together, while using the public way for purposes of travel...
(s.79(6A)(a)) and demonstration
Demonstration (people)
A demonstration or street protest is action by a mass group or collection of groups of people in favor of a political or other cause; it normally consists of walking in a mass march formation and either beginning with or meeting at a designated endpoint, or rally, to hear speakers.Actions such as...
s (s.79(6A)(c)).
Local authorities have a duty to make periodic inspections of their area or in response to a complaint from the public (s.79(1)). The local authority can serve
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
an offending occupier with an abatement notice to cease the nuisance (s.80(1)). The occupier can appeal
Appeal
An appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
the notice, within 21 days, to the Magistrates' Court, in England and Wales, or Sheriff Court
Sheriff Court
Sheriff courts provide the local court service in Scotland, with each court serving a sheriff court district within a sheriffdom.Sheriff courts deal with a myriad of legal procedures which include:*Solemn and Summary Criminal cases...
in Scotland (s.80(3)). Otherwise, it is a crime to fail, without reasonable excuse, to comply with the notice (s.80(4)), punishable on summary conviction by a fine at level 5 of the standard scale, rising by ten percent for every further day on which the nuisance continues (s.80(5)). If the offence is committed by the occupier of business premises, the maximum fine is £40,000 (s.80(6)). Where the notice is not complied with, the local authority may take reasonable action to abate the nuisance and recover the expenses from the occupier (s.81(3)-(4)), if necessary by installments or by making a charge on the property (s.81A(1)).
Any person aggrieved by a statutory nuisance may make a complaint to the Magistrates of Sheriff (s.82(1)). The court can order
Court order
A court order is an official proclamation by a judge that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of certain steps by one or more parties to a case...
the occupier to abate the damage and, in England and Wales only, impose a fine of up to level 5 on the standard scale (s.82(2)). It is a crime, without reasonable excuse, to disobey such an order, punishable on summary conviction by a fine at level 5 of the standard scale, rising by ten percent for every further day on which the nuisance continues (s.82(8)).
Section 84 repeal
Repeal
A repeal is the amendment, removal or reversal of a law. This is generally done when a law is no longer effective, or it is shown that a law is having far more negative consequences than were originally envisioned....
s local authority controls over offensive trades under the Public Health Act 1936.
Part IV - Litter
Section 87 creates the criminal offence of leaving litter. "If any person throws down, drops or otherwise deposits in, into or from any place to which this section applies, and leaves, any thing whatsoever in such circumstances as to cause, or contribute to, or tend to lead to, the defacement by litter of any place to which this section applies, he shall ... be guilty of an offence" (s.87(1)). There are exceptions where the person has lawful authorisation or consent (s.87(2)). Offenders can, on summary conviction in the Magistrates' Court, be sentenced to a fine of up to level 4 on the standard scale (s.87(5)).There is also a system of fixed penalty notice
Fixed Penalty Notice
Fixed penalty notices were introduced in Britain in the 1950s to deal with minor parking offences. Originally used by police and traffic wardens, their use has extended to other public officials and authorities, as has the range of offences for which they can be used.In recent years, this has...
s (s.88). Local authorities and central government have duties to keep roads, highway
Highway
A highway is any public road. In American English, the term is common and almost always designates major roads. In British English, the term designates any road open to the public. Any interconnected set of highways can be variously referred to as a "highway system", a "highway network", or a...
s and public spaces free from litter (s.89). Members of the public who are aggrieved by litter in public places can apply to the Magistrates' Court for an abatement notice to order the responsible public body to carry out its duties under section 89 (s.91). Public authorities also have powers to issue litter abatement notices and litter clearing notices on the occupiers of certain (i.e. specific) premises to order clearing of litter (ss.92-92A). Occupiers can appeal against a notice to the Magistrates Court within 21 days (s.92B) but it is otherwise a crime to disobey a notice, punishable on summary conviction to a fine of up to level 4 on the standard scale (s.92C). A local authority may also issue street litter control notices to occupiers of certain (i.e. specific) premises, such as take-out
Take-out
Take-out or takeout , carry-out , take-away , parcel , or tapau , is food purchased at a...
food establishments, to keep the street and public areas near to their premises clear of litter (s.93).
Local authorities have the power to designate land in order to prevent the distribution of free printed material, such as advertising flyer
Flyer (pamphlet)
__notoc__A flyer or flier, also called a circular, handbill or leaflet, is a form of paper advertisement intended for wide distribution and typically posted or distributed in public place....
s. Offenders face summary conviction in the Magistrates' Court and a fine of up to level 4 on the standard scale, seizure of the material or a fixed penalty notice (s.94B / Sch.3A) Local authorities may seize abandoned shopping trollies
Shopping cart
A shopping cart is a cart supplied by a shop, especially supermarkets, for use by customers inside the shop for transport of merchandise to the check-out counter during shopping...
and luggage trollies
Baggage cart
Baggage carts, luggage carts or trolleys are small vehicles pushed by travelers to carry individual luggage, mostly suitcases. There are two major sizes: One for big luggage and one for small luggage...
, returning them to their owner and imposing a statutory fee, or otherwise disposing of them (s.99 / Sch.4).
Some of the provisions of this part were repealed and superseded by the Clean Neighbourhoods and Environment Act 2005
Clean Neighbourhoods and Environment Act 2005
The Clean Neighbourhoods and Environment Act 2005 is an Act of the Parliament of the United Kingdom. It implements proposals contained in the Clean Neighbourhoods consultation launched on 25 July 2004.-Section 108 - Commencement:...
.