Office of Public Sector Information
PART II continued
(1) The appropriate Agency shall—
(a) from time to time, or
(b) if the Secretary of State at any time so requests,
prepare and publish a report on the state of contaminated land in England and Wales or in Scotland, as the case may be.
(2) A local authority shall, at the written request of the appropriate Agency, furnish the appropriate Agency with such information to which this subsection applies as the appropriate Agency may require for the purpose of enabling it to perform its functions under subsection (1) above.
(3) The information to which subsection (2) above applies is such information as the local authority may have, or may reasonably be expected to obtain, with respect to the condition of contaminated land in its area, being information which the authority has acquired or may acquire in the exercise of its functions under this Part.
(1) The appropriate Agency may issue guidance to any local authority with respect to the exercise or performance of the authority’s powers or duties under this Part in relation to any particular contaminated land; and in exercising or performing those powers or duties in relation to that land the authority shall have regard to any such guidance so issued.
(2) If and to the extent that any guidance issued under subsection (1) above to a local authority is inconsistent with any guidance issued under this Part by the Secretary of State, the local authority shall disregard the guidance under that subsection.
(3) A local authority shall, at the written request of the appropriate Agency, furnish the appropriate Agency with such information to which this subsection applies as the appropriate Agency may require for the purpose of enabling it to issue guidance for the purposes of subsection (1) above.
(4) The information to which subsection (3) above applies is such information as the local authority may have, or may reasonably be expected to obtain, with respect to any contaminated land in its area, being information which the authority has acquired, or may acquire, in the exercise of its functions under this Part.
(1) The Secretary of State may issue guidance to the appropriate Agency with respect to the exercise or performance of that Agency’s powers or duties under this Part; and in exercising or performing those powers or duties the appropriate Agency shall have regard to any such guidance so issued.
(2) The duty imposed on the appropriate Agency by subsection (1) above is without prejudice to any duty imposed by any other provision of this Part on that Agency to act in accordance with guidance issued by the Secretary of State.
(1) Where it appears to a local authority that two or more different sites, when considered together, are in such a condition, by reason of substances in, on or under the land, that—
(a) significant harm is being caused or there is a significant possibility of such harm being caused, or
(b) pollution of controlled waters is being, or is likely to be, caused,
this Part shall apply in relation to each of those sites, whether or not the condition of the land at any of them, when considered alone, appears to the authority to be such that significant harm is being caused, or there is a significant possibility of such harm being caused, or that pollution of controlled waters is being or is likely to be caused.
(2) Where it appears to a local authority that any land outside, but adjoining or adjacent to, its area is in such a condition, by reason of substances in, on or under the land, that significant harm is being caused, or there is a significant possibility of such harm being caused, or that pollution of controlled waters is being, or is likely to be, caused within its area—
(a) the authority may, in exercising its functions under this Part, treat that land as if it were land situated within its area; and
(b) except in this subsection, any reference—
(i) to land within the area of a local authority, or
(ii) to the local authority in whose area any land is situated,
shall be construed accordingly;
but this subsection is without prejudice to the functions of the local authority in whose area the land is in fact situated.
(3) A person acting in a relevant capacity—
(a) shall not thereby be personally liable, under this Part, to bear the whole or any part of the cost of doing any thing by way of remediation, unless that thing is to any extent referable to substances whose presence in, on or under the contaminated land in question is a result of any act done or omission made by him which it was unreasonable for a person acting in that capacity to do or make; and
(b) shall not thereby be guilty of an offence under or by virtue of section 78M above unless the requirement which has not been complied with is a requirement to do some particular thing for which he is personally liable to bear the whole or any part of the cost.
(4) In subsection (3) above, “person acting in a relevant capacity” means—
(a) a person acting as an insolvency practitioner, within the meaning of section 388 of the [1986 c. 63.] Insolvency Act 1986 (including that section as it applies in relation to an insolvent partnership by virtue of any order made under section 421 of that Act);
(b) the official receiver acting in a capacity in which he would be regarded as acting as an insolvency practitioner within the meaning of section 388 of the [1986 c. 45.] Insolvency Act 1986 if subsection (5) of that section were disregarded;
(c) the official receiver acting as receiver or manager;
(d) a person acting as a special manager under section 177 or 370 of the [1986 c. 45.] Insolvency Act 1986;
(e) the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the [1985 c. 51.] Bankruptcy (Scotland) Act 1985);
(f) a person acting as a receiver or receiver and manager—
(i) under or by virtue of any enactment; or
(ii) by virtue of his appointment as such by an order of a court or by any other instrument.
(5) Regulations may make different provision for different cases or circumstances.
(1) Subject to the provisions of any order under this section, this Part shall not apply in relation to the Isles of Scilly.
(2) The Secretary of State may, after consultation with the Council of the Isles of Scilly, by order provide for the application of any provisions of this Part to the Isles of Scilly; and any such order may provide for the application of those provisions to those Isles with such modifications as may be specified in the order.
(3) An order under this section may—
(a) make different provision for different cases, including different provision in relation to different persons, circumstances or localities; and
(b) contain such supplemental, consequential and transitional provision as the Secretary of State considers appropriate, including provision saving provision repealed by or under any enactment.
(1) Any power of the Secretary of State to issue guidance under this Part shall only be exercisable after consultation with the appropriate Agency and such other bodies or persons as he may consider it appropriate to consult in relation to the guidance in question.
(2) A draft of any guidance proposed to be issued under section 78A(2) or (5), 78B(2) or 78F(6) or (7) above shall be laid before each House of Parliament and the guidance shall not be issued until after the period of 40 days beginning with the day on which the draft was so laid or, if the draft is laid on different days, the later of the two days.
(3) If, within the period mentioned in subsection (2) above, either House resolves that the guidance, the draft of which was laid before it, should not be issued, the Secretary of State shall not issue that guidance.
(4) In reckoning any period of 40 days for the purposes of subsection (2) or (3) above, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(5) The Secretary of State shall arrange for any guidance issued by him under this Part to be published in such manner as he considers appropriate.
(1) A remediation notice shall not be served if and to the extent that it appears to the enforcing authority that the powers of the appropriate Agency under section 27 above may be exercised in relation to—
(a) the significant harm (if any), and
(b) the pollution of controlled waters (if any),
by reason of which the contaminated land in question is such land.
(2) Nothing in this Part shall apply in relation to any land in respect of which there is for the time being in force a site licence under Part II above, except to the extent that any significant harm, or pollution of controlled waters, by reason of which that land would otherwise fall to be regarded as contaminated land is attributable to causes other than—
(a) breach of the conditions of the licence; or
(b) the carrying on, in accordance with the conditions of the licence, of any activity authorised by the licence.
(3) If, in a case falling within subsection (1) or (7) of section 59 above, the land in question is contaminated land, or becomes such land by reason of the deposit of the controlled waste in question, a remediation notice shall not be served in respect of that land by reason of that waste or any consequences of its deposit, if and to the extent that it appears to the enforcing authority that the powers of a waste regulation authority or waste collection authority under that section may be exercised in relation to that waste or the consequences of its deposit.
(4) No remediation notice shall require a person to do anything the effect of which would be to impede or prevent the making of a discharge in pursuance of a consent given under Chapter II of Part III of the [1991 c. 57.] Water Resources Act 1991 (pollution offences) or, in relation to Scotland, in pursuance of a consent given under Part II of the [1974 c. 40.] Control of Pollution Act 1974.
Except as provided by regulations, nothing in this Part applies in relation to harm, or pollution of controlled waters, so far as attributable to any radioactivity possessed by any substance; but regulations may—
(a) provide for prescribed provisions of this Part to have effect with such modifications as the Secretary of State considers appropriate for the purpose of dealing with harm, or pollution of controlled waters, so far as attributable to any radioactivity possessed by any substances; or
(b) make such modifications of the [1993 c. 12.] Radioactive Substances Act 1993 or any other Act as the Secretary of State considers appropriate.”
After Chapter II of Part III of the Water Resources Act 1991 (pollution offences) there shall be inserted—
(1) For the purposes of this Chapter, “abandonment”, in relation to a mine,—
(a) subject to paragraph (b) below, includes—
(i) the discontinuance of any or all of the operations for the removal of water from the mine;
(ii) the cessation of working of any relevant seam, vein or vein-system;
(iii) the cessation of use of any shaft or outlet of the mine;
(iv) in the case of a mine in which activities other than mining activities are carried on (whether or not mining activities are also carried on in the mine)—
(A) the discontinuance of some or all of those other activities in the mine; and
(B) any substantial change in the operations for the removal of water from the mine; but
(b) does not include—
(i) any disclaimer under section 178 or 315 of the [1986 c. 45.] Insolvency Act 1986 (power of liquidator, or trustee of a bankrupt’s estate, to disclaim onerous property) by the official receiver acting in a compulsory capacity; or
(ii) the abandonment of any rights, interests or liabilities by the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the [1985 c. 66.] Bankruptcy (Scotland) Act 1985);
and cognate expressions shall be construed accordingly.
(2) In this Chapter, except where the context otherwise requires—
“the 1954 Act” means the [1954 c. 70.] Mines and Quarries Act 1954;
“acting in a compulsory capacity”, in the case of the official receiver, means acting as—
liquidator of a company;
receiver or manager of a bankrupt’s estate, pursuant to section 287 of the [1986 c. 45.] Insolvency Act 1986;
trustee of a bankrupt’s estate;
liquidator of an insolvent partnership;
trustee of an insolvent partnership;
trustee, or receiver or manager, of the insolvent estate of a deceased person;
“mine” has the same meaning as in the 1954 Act;
“the official receiver” has the same meaning as it has in the [1986 c. 45.] Insolvency Act 1986 by virtue of section 399(1) of that Act;
“prescribed” means prescribed in regulations;
“regulations” means regulations made by the Secretary of State;
“relevant seam, vein or vein-system”, in the case of any mine, means any seam, vein or vein-system for the purpose of, or in connection with, whose working any excavation constituting or comprised in the mine was made.
(1) If, in the case of any mine, there is to be an abandonment at any time after the expiration of the initial period, it shall be the duty of the operator of the mine to give notice of the proposed abandonment to the Agency at least six months before the abandonment takes effect.
(2) A notice under subsection (1) above shall contain such information (if any) as is prescribed for the purpose, which may include information about the operator’s opinion as to any consequences of the abandonment.
(3) A person who fails to give the notice required by subsection (1) above shall be guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(4) A person shall not be guilty of an offence under subsection (3) above if—
(a) the abandonment happens in an emergency in order to avoid danger to life or health; and
(b) notice of the abandonment, containing such information as may be prescribed, is given as soon as reasonably practicable after the abandonment has happened.
(5) Where the operator of a mine is—
(a) the official receiver acting in a compulsory capacity, or
(b) the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the [1985 c. 66.] Bankruptcy (Scotland) Act 1985),
he shall not be guilty of an offence under subsection (3) above by reason of any failure to give the notice required by subsection (1) above if, as soon as reasonably practicable (whether before or after the abandonment), he gives to the Agency notice of the abandonment or proposed abandonment, containing such information as may be prescribed.
(6) Where a person gives notice under subsection (1), (4)(b) or (5) above, he shall publish prescribed particulars of, or relating to, the notice in one or more local newspapers circulating in the locality where the mine is situated.
(7) Where the Agency—
(a) receives notice under this section or otherwise learns of an abandonment or proposed abandonment in the case of any mine, and
(b) considers that, in consequence of the abandonment or proposed abandonment taking effect, any land has or is likely to become contaminated land, within the meaning of Part IIA of the [1990 c. 43.] Environmental Protection Act 1990,
it shall be the duty of the Agency to inform the local authority in whose area that land is situated of the abandonment or proposed abandonment.
(8) In this section—
“the initial period” means the period of six months beginning with the day on which subsection (1) above comes into force;
“local authority” means—
any unitary authority;
any district council, so far as it is not a unitary authority;
the Common Council of the City of London and, as respects the Temples, the Sub-Treasurer of the Inner Temple and the Under-Treasurer of the Middle Temple respectively;
“unitary authority” means—
the council of a county, so far as it is the council of an area for which there are no district councils;
the council of any district comprised in an area for which there is no county council;
the council of a London borough;
the council of a county borough in Wales.”
After Part I of the [1974 c. 40.] Control of Pollution Act 1974 (waste on land) there shall be inserted—
(1) For the purposes of this Part, “abandonment”, in relation to a mine,—
(a) subject to paragraph (b) below, includes—
(i) the discontinuance of any or all of the operations for the removal of water from the mine;
(ii) the cessation of working of any relevant seam, vein or vein-system;
(iii) the cessation of use of any shaft or outlet of the mine;
(iv) in the case of a mine in which activities other than mining activities are carried on (whether or not mining activities are also carried on in the mine)—
(A) the discontinuance of some or all of those other activities in the mine; and
(B) any substantial change in the operations for the removal of water from the mine; but
(b) does not include—
(i) the abandonment of any rights, interests or liabilities by the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the [1985 c. 66.] Bankruptcy (Scotland) Act 1985); or
(ii) any disclaimer under section 178 or 315 of the [1986 c. 45.] Insolvency Act 1986 (power of liquidator, or trustee of bankrupt’s estate, to disclaim onerous property) by the official receiver acting in a compulsory capacity;
and cognate expressions shall be construed accordingly.
(2) In this Part, except where the context otherwise requires—
“acting in a compulsory capacity”, in the case of the official receiver, means acting as—
liquidator of a company;
receiver or manager of a bankrupt’s estate, pursuant to section 287 of the [1986 c. 45.] Insolvency Act 1986;
trustee of a bankrupt’s estate;
liquidator of an insolvent partnership;
trustee of an insolvent partnership;
trustee, or receiver or manager, of the insolvent estate of a deceased person;
“the official receiver” has the same meaning as it has in the [1986 c. 45.] Insolvency Act 1986 by virtue of section 399(1) of that Act;
“relevant seam, vein or vein-system”, in the case of any mine, means any seam, vein or vein-system for the purpose of, or in connection with, whose working any excavation constituting or comprised in the mine was made.
(3) This Part extends only to Scotland.
(1) If, in the case of any mine, there is to be an abandonment at any time after the expiration of the initial period, it shall be the duty of the operator of the mine to give notice of the proposed abandonment to SEPA at least six months before the abandonment takes effect.
(2) A notice under subsection (1) above shall contain such information (if any) as is prescribed for the purpose, which may include information about the operator’s opinion as to any consequences of the abandonment.
(3) A person who fails to give the notice required by subsection (1) above shall be guilty of an offence and liable—
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to a fine.
(4) A person shall not be guilty of an offence under subsection (3) above if—
(a) the abandonment happens in an emergency in order to avoid danger to life or health; and
(b) notice of the abandonment, containing such information as may be prescribed, is given as soon as reasonably practicable after the abandonment has happened.
(5) Where the operator of a mine is—
(a) the Accountant in Bankruptcy acting as permanent or interim trustee in a sequestration (within the meaning of the [1985 c. 66.] Bankruptcy (Scotland) Act 1985); or
(b) the official receiver acting in a compulsory capacity,
he shall not be guilty of an offence under subsection (3) above by reason of any failure to give the notice required by subsection (1) above if, as soon as is reasonably practicable (whether before or after the abandonment), he gives to SEPA notice of the abandonment or proposed abandonment, containing such information as may be prescribed.
(6) Where a person gives notice under subsection (1), (4)(b) or (5) above, he shall publish prescribed particulars of, or relating to, the notice in one or more local newspapers circulating in the locality where the mine is situated.
(7) Where SEPA—
(a) receives notice under this section or otherwise learns of an abandonment or proposed abandonment in the case of any mine, and
(b) considers that, in consequence of the abandonment or proposed abandonment taking effect, any land has or is likely to become contaminated land, within the meaning of Part IIA of the [1990 c. 43.] Environmental Protection Act 1990,
it shall be the duty of SEPA to inform the local authority in whose area that land is situated of the abandonment or proposed abandonment.
(8) In this section—
“the initial period” means the period of six months beginning with the day on which subsection (1) above comes into force;
“local authority” means a council constituted under section 2 of the [1994 c. 39.] Local Government etc. (Scotland) Act 1994.”
(1) In section 89 of the [1991 c. 57.] Water Resources Act 1991 (defences) in subsection (3) (person not to be guilty of an offence under section 85 by reason only of permitting water from an abandoned mine to enter controlled waters) after the words “an abandoned mine” there shall be inserted the words “or an abandoned part of a mine”.
(2) After that subsection there shall be inserted—
“(3A) Subsection (3) above shall not apply to the owner or former operator of any mine or part of a mine if the mine or part in question became abandoned after 31st December 1999.
(3B) In determining for the purposes of subsection (3A) above whether a mine or part of a mine became abandoned before, on or after 31st December 1999 in a case where the mine or part has become abandoned on two or more occasions, of which—
(a) at least one falls on or before that date, and
(b) at least one falls after that date,
the mine or part shall be regarded as becoming abandoned after that date (but without prejudice to the operation of subsection (3) above in relation to that mine or part at, or in relation to, any time before the first of those occasions which falls after that date).
(3C) Where, immediately before a part of a mine becomes abandoned, that part is the only part of the mine not falling to be regarded as abandoned for the time being, the abandonment of that part shall not be regarded for the purposes of subsection (3A) or (3B) above as constituting the abandonment of the mine, but only of that part of it.”
(3) In section 161 of that Act (anti-pollution works and operations) in subsection (1), after paragraph (b) there shall be inserted the words— “and, in either case, the Agency shall be entitled to carry out investigations for the purpose of establishing the source of the matter and the identity of the person who has caused or knowingly permitted it to be present in controlled waters or at a place from which it was likely, in the opinion of the Agency, to enter controlled waters.”
(4) In subsection (3) of that section (Agency entitled to recover expenses of works or operations from the person responsible for the pollution) for the words “or operations” there shall be substituted the words “operations or investigations”.
(5) In subsection (4) of that section (exception for expenses of works or operations in respect of water from an abandoned mine)—
(a) for the words “or operations” there shall be substituted the words “operations or investigations”; and
(b) after the words “an abandoned mine” there shall be inserted the words “or an abandoned part of a mine”.
(6) After that subsection there shall be inserted—
“(4A) Subsection (4) above shall not apply to the owner or former operator of any mine or part of a mine if the mine or part in question became abandoned after 31st December 1999.
(4B) Subsections (3B) and (3C) of section 89 above shall apply in relation to subsections (4) and (4A) above as they apply in relation to subsections (3) and (3A) of that section.”
(7) In subsection (6) of that section (definitions), after the definition of “controlled waters” there shall be inserted—
““expenses” includes costs;”.
Environment Act 1995