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The Pollution Prevention and Control (Scotland) Regulations 2000

Type Scottish-Statutory-Instrument

Publication 2000-09-14

State In force

Jurisdiction Scotland

Department Queen's Printer for Scotland

Source legislation.gov.uk

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(8) Where separate applications are deemed to have been made under sub-paragraph (4) to operate different parts of a Part B installation the prescribed date for the installation shall be, in relation to each part of the installation covered by a separate application, the determination date for that part of the installation.

10

For the purpose of this Part of this Schedule the relevant date for a Part B installation or a Part B mobile plant shall be 31st December 2002.

11

In this Part of this Schedule–

“determination date”, in relation to an installation or mobile plant to which this Part applies, has the same meaning as in Part 1 of this Schedule;

“existing” means, in relation to a Part B installation or Part B mobile plant, an installation or mobile plant which is put into operation before the relevant date for that installation or mobile plant;

“new” means, in relation to a Part B installation or Part B mobile plant, an installation or mobile plant which is put into operation on or after the relevant date for that installation or mobile plant;

“relevant date” shall be interpreted in accordance with paragraph 10.

SCHEDULE 4 — GRANT OF PERMITS

PART 1 — APPLICATIONS FOR PERMITS

1

(1) An application to SEPA for a permit under regulation 7 shall be in writing (or in electronic form acceptable to it) and, subject to paragraphs 2 and 3, shall contain the following information:–

(a) the name of the applicant, his telephone number, address (including post code) and e-mail address (if any) and, if different, any address or e-mail address to which correspondence relating to the application should be sent and, if the applicant is a body corporate, its registered number, the address of its registered or principal office and, if that body corporate is a subsidiary of a holding company (within the meaning of section 736 of the Companies Act 1985[^f00028]), the name of the ultimate holding company and the address of its registered or principal office;

(b) in the case of an application for a permit to operate an installation or Part A mobile plant, the address of the site of the installation or mobile plant and its national grid reference, a map or plan showing that site and, in the case of an installation, the location of the installation on that site, and the name of any local authority in whose area the site is situated;

(c) in the case of an application for a permit to operate a Part B mobile plant, the name of the local authority in whose area the applicant has his principal place of business and the address of that place of business or, where the operator of the mobile plant has his principal place of business outside of Scotland, the name of the local authority in whose area the plant was first operated or, where the plant has not been operated in Scotland, the local authority in whose area it is intended by the operator that the plant will first be operated;

(d) in the case of an application for a permit to operate a Part A installation or a Part A mobile plant, a site report containing the information required by sub-paragraph (2);

(e) a description of the installation or mobile plant, the activities listed in Part 1 of Schedule 1 to be carried out in the installation or by means of the mobile plant, and, in the case of an installation, any other directly associated activities to be carried out on the same site as the installation which will have a technical connection with those listed activities and which could have an effect on pollution;

(f) the raw and auxiliary materials and other substances and the energy to be used in or generated by the carrying out of the activities referred to in paragraph (e);

(g) the nature, quantities and sources of foreseeable emissions from the installation or mobile plant into each environmental medium, and a description of any foreseeable significant effects of the emissions on the environment;

(h) the proposed technology and other techniques for preventing or, where that is not practicable, reducing and rendering harmless emissions from the installation or mobile plant;

(i) the proposed measures to be taken to monitor the emissions;

(j) a description of the measures to be taken for the prevention and recovery of waste generated by the operation of the installation or mobile plant;

(k) a description of any proposed additional measures to be taken to comply with the general principles set out in regulation 8(2);

(l) in the case of an application for a permit to operate a Part A installation, any relevant information obtained or conclusion arrived at in relation to the installation pursuant to articles 5, 6 and 7 of Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment[^f00029];

(m) in the case of an application for a permit to operate an installation or mobile plant covered by general binding rules, a statement as to whether the applicant wishes the aspects of the operation of the installation or mobile plant covered by the requirements in the rules to be subject to those requirements instead of conditions included in the permit pursuant to regulation 9;

(n) in the case of an application for a permit that will authorise the carrying out of a specified waste management activity at an installation or by means of mobile plant, any information which the applicant wishes SEPA to take into account when considering whether the applicant is a fit and proper person to carry out that activity;

(o) any additional information which the applicant wishes SEPA to take into account in considering the application;

(p) a non-technical summary of the information referred to in the previous sub-paragraphs.

(2) The site report required by paragraph 1(d) shall describe the condition of the site of the installation or Part A mobile plant and shall, in particular, identify any substance in, on or under the land which may constitute a pollution risk.

2

Paragraphs 1(1)(f), (j), and (p) shall not apply in relation to an application for a permit to operate a Part B installation or a Part B mobile plant, and, in relation to such an application, the reference to emissions from the installation or mobile plant into each environmental medium in paragraph 1(1)(g) shall be read as a reference to emissions from the installation or mobile plant into the air.

3

(1) Paragraph 1 shall apply in relation to an application for a permit to operate an installation involving the burning of waste oil in an appliance with a rated thermal input of less than 0.4 megawatts as if, in so far as the installation is concerned with the carrying out of that activity, the following sub-paragraphs were substituted for sub-paragraphs (e) to (h)–

(e) the name and number, if any, of the appliance used for the burning of the waste oil, and the name of its manufacturer, its rated thermal input of the appliance and whether or not it is constructed or adapted so as to comply with the specification for fixed, flued fan-assisted heaters in Part 2 of the specification for oil-burning air heaters published by the British Standards Institution and numbered BS 4256 1972; (f) details of the type of fuel to be used and its source; (g) details of the height and location of any chimney through which waste gases produced by the appliance would be carried away and details of the efflux velocity of the waste gases leaving such a chimney produced by the appliance in normal operation; (h) details of the location of the fuel storage tanks of the appliance;

(2) In this paragraph and in paragraphs 8 and 10 “waste oil” has the same meaning as in Section1.1 of Part 1 of Schedule 1.

4

SEPA may, by notice to the applicant, require that person to furnish such further information specified in the notice, within the period so specified, as it may require for the purpose of determining the application and if the applicant fails to furnish the specified information within the period specified, the application shall, if SEPA gives notice to the operator that it treats the failure as such, be deemed to have been withdrawn at the end of that period.

5

Subject to paragraph 23, the applicant shall, within a period of 28 days beginning 14 days after the day on which the application is made, advertise the application–

(a) in the case of an application for a permit to operate an installation or Part A mobile plant, in one or more newspapers circulating in the locality in which the installation or mobile plant covered by the application will be operated; and

(b) in the case of an application for a permit to operate a Part A installation or Part A mobile plant, in the Edinburgh Gazette.

6

An advertisement required by paragraph 5 shall–

(a) state the name of the applicant;

(b) in the case of an application for a permit to operate an installation or Part A mobile plant, state the address of the site of the installation or mobile plant;

(d) state that the application contains a description of any foreseeable significant effects of emissions from the installation or mobile plant on the environment;

(e) state where any register which contains particulars of the application may be inspected and that it may be inspected free of charge;

(f) explain that any person may make representations to SEPA in writing (or in electronic form acceptable to it) within the period of 28 days beginning with the date of the advertisement and give SEPA’s address (including its e-mail address) for receiving the representations;

(g) explain that any such representations made by any person will be entered in a public register unless that person requests in writing (or in electronic form acceptable to SEPA) that they should not be so entered, and that where such a request is made there will be included in the register a statement indicating only that representations have been made which have been the subject of such a request.

7

Where an application is for a permit to operate more than one installation or mobile plant the application and the advertisement required by paragraph 5 shall contain the information required by paragraphs 1 and 6 respectively in relation to each installation or mobile plant.

8

Paragraph 5 shall not apply in relation to an application for a permit to operate an installation involving only the burning of waste oil in an appliance with a rated thermal input of less than 0.4 megawatts or the carrying out of an activity falling within paragraph (c)(ii) of Part B of Section 1.2 of Part 1 of Schedule 1 (unloading of petrol at service stations).

PART 2 — DETERMINATION OF APPLICATIONS

9

Subject to paragraph 23, SEPA shall, within 14 days of receiving an application for a permit, give notice of the application, enclosing a copy of it, to the following persons:–

(a) in the case of an application for a permit to operate an installation or Part A mobile plant, the Health Board in whose area the installation or mobile plant will be operated;

(b) in the case of an application for a permit to operate a Part A installation or Part A mobile plant –

(i) the Food Standards Agency[^f00030];

(ii) where the operation of the installation or mobile plant may involve the release of any substance into a sewer vested in a water and sewerage authority (established under the Local Government etc. (Scotland) Act 1994[^f00031]), that authority;

(iii) where the operation of the installation or mobile plant may involve an emission which may affect a site of special scientific interest or a European site (within the meaning of regulation 10(1) of the Conservation (Natural Habitats, &c.) Regulations 1994[^f00032]), Scottish Natural Heritage (and where such operation may involve an emission which may affect such a site in England, the Nature Conservancy Council for England);

(iv) where the operation of the installation or mobile plant may involve the release of any substance into a harbour managed by a harbour authority (within the meaning of section 57 (1) of the Harbours Act 1964[^f00033]), that harbour authority;

(c) in the case of an application for a permit to operate a Part B installation where the operation of the installation may involve an emission which may affect a site of special scientific interest or a European site (within the meaning of regulation 10(1) of the Conservation (Natural Habitats, &c.) Regulations 1994), Scottish Natural Heritage (and where such operation may involve an emission which may affect such a site in England, the Nature Conservancy Council for England);

(d) in the case of an application for a permit to operate a Part A installation or a Part B installation on a site in respect of which a nuclear site licence is required under section 1 of the Nuclear Installations Act 1965[^f00034] or in respect of which a major accident prevention policy document is required under regulation 5 of the Control of Major Accident Hazards Regulations 1999[^f00035] or a safety report is required under regulation 7 of those Regulations, the Health and Safety Executive[^f00036];

(e) in the case of all applications, the local authority in whose area the installation is situated or the mobile plant is intended to be operated and such other persons as the Scottish Ministers may direct.

10

Paragraph 9 shall not apply in relation to an application for a permit to operate an installation involving only the burning of waste oil in an appliance with a rated thermal input of less than 0.4 megawatts.

11

(1) If SEPA proposes to grant a permit subject to an off-site condition, it shall, before granting the permit, give a notice which complies with sub-paragraph (2) to every person appearing to it to be a person falling within sub-paragraph (3).

(2) A notice served under sub-paragraph (1) shall–

(a) set out the off-site condition in question;

(b) indicate the nature of the works or things which that condition might require the holder of the permit to carry out or do; and

(c) specify the period allowed for the purpose of paragraph 12 for making representations to SEPA relating to the condition or its possible effects and the manner in which any such representations are to be made.

(3) A person falls within this sub-paragraph if–

(a) that person is the owner, tenant or occupier of the land; and

(b) that land is land in relation to which it is likely that, as a consequence of the permit being issued subject to the off-site condition in question, rights will have to be granted by virtue of regulation 9(13) to the holder of the permit.

(4) In sub-paragraph (3), “owner” means the person (other than a creditor in a heritable security not in possession of the security subjects) for the time being entitled to receive or who, if the land were let, would be entitled to receive, the rents of the land in connection with which the land is used and includes a trustee, factor, guardian or curator and in the case of public or municipal land includes the persons to whom management of the land is entrusted.

12

(1) Any representations made by any persons within the period allowed shall be considered by SEPA in determining the application.

(2) For the purpose of sub-paragraph (1), the period allowed for making representations is–

(a) in the case of persons to whom notice is given pursuant to paragraph 9 or 11, the period of 28 days beginning with the date on which notice is given under the relevant paragraph;

(b) in the case of other persons, the period of 28 days beginning with the date on which the application is advertised pursuant to paragraph 5.

13

In the case of an application for a permit to operate a Part A installation, any relevant information obtained or conclusion arrived at pursuant to Articles 5, 6 and 7 of Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment in relation to the installation shall be taken into consideration by SEPA in determining the application.

14

(1) The Scottish Ministers may give directions to SEPA requiring that any particular application or any class of applications for a permit shall be referred to them for determination pending a further direction under sub-paragraph (6).

(2) SEPA shall inform the applicant of the fact that the application is being referred to the Scottish Ministers and forward to them any representations which have been made to SEPA within the period allowed.

(3) Where an application for a permit is referred to them under sub-paragraph (1), the Scottish Ministers may afford the applicant and SEPA an opportunity of appearing before and being heard by a person appointed by them and they shall do so in any case where a request is duly made by the applicant or SEPA to be so heard.

(4) A request under sub-paragraph (3) shall be in writing (or in electronic form) and shall be made within the period of 21 days beginning with the day on which the applicant is informed that the application is being referred to the Scottish Ministers.

(5) Paragraphs 4(2) to (10) of Schedule 8 shall apply to a hearing held under sub-paragraph (3) as they apply to a hearing held under paragraph 4(1) of that Schedule but with the following modifications:–

(a) with the substitution in sub-paragraph (3) for the reference to the appellant of a reference to the applicant;

(b) with the substitution in sub-paragraph (4)–

(i) for the reference to the appeal of a reference to the application; and

(ii) for the reference to every person mentioned in paragraph 3(1)(a) of Schedule 8 and every person mentioned in paragraph 3(1)(b) and (c) of that Schedule who has made representations to the Scottish Ministers of a reference to every person who was required to be given notice under paragraph 9 of this Schedule and to any person who made representations to SEPA with respect to the subject matter of the application;

(i) for the reference in sub-paragraph (7)(a) to the appellant of a reference to the applicant;

(ii) for the reference in sub-paragraph (7)(c) to any person required under paragraph 3(1)(a) of Schedule 8 to be notified of the appeal of a reference to any person required under paragraph 9 of this Schedule to be notified of the application.

(6) In relation to SEPA and the applicant, regulation 22(5) and (6) shall apply to any determination by the Scottish Ministers of any application referred to them under sub-paragraph (1) as it applies to decisions made by the Scottish Ministers under regulation 22(1) or (2).

(7) On determining any application transferred under this paragraph the Scottish Ministers shall (or, on determining an appeal, the sheriff, may) give to SEPA such a direction as considered fit as to whether it is to grant the application and, if so, as to the conditions that are to be attached to the permit by means of the variation notice.

15

(1) Except in a case where an application has been referred to the Scottish Ministers under paragraph 14 and subject to paragraph 18, SEPA shall give notice of its determination of an application for a permit within the period of 4 months beginning with the day on which it received the application or within such longer period as may be agreed with the applicant.

(2) For the purpose of calculating the 4 month period mentioned in sub-paragraph (1), no account shall be taken of–

(a) any period beginning with the date on which notice is served on the applicant under paragraph 4 and ending on the date on which the applicant furnishes the information specified in the notice;

(b) any period allowed for making representations in relation to a notice given pursuant to paragraph 11 in so far as that period does not overlap with any other period allowed for making representations in accordance with paragraph 12;

(c) where a matter falls to be determined for the purposes of regulation 28 or under regulation 29, any period beginning with the date on which the period of 28 days referred to in paragraph 5 ends and ending on the date on which the application is advertised in accordance with paragraph 23(a).

16

If SEPA fails to give notice of its determination of an application for a permit within the period allowed by or under paragraph 15, the application shall, if the applicant notifies SEPA in writing (or in electronic form acceptable to SEPA) that the applicant treats the failure as such, be deemed to have been refused at the end of that period.

17

Where the Scottish Ministers are aware that the operation of an installation carrying out an activity listed in Annex I to the Directive in Scotland is likely to have significant negative effects on the environment of another Member State, or where another Member State likely to be significantly affected so requests, they shall forward to the Secretary of State a copy of the application to operate that installation for onward transmission to the other Member State at the same time as the application is advertised pursuant to paragraph 5 (or as soon as they become so aware or receive such a request, if they become so aware or receive such a request after the application is advertised but before the application is determined) in order that the application may serve as the basis for any consultations necessary in the framework of the bilateral relations between the United Kingdom and the other Member State on a reciprocal and equivalent basis, as referred to in Article 17 of the Directive.

18

(1) Where an application is forwarded for onward transmission to another Member State pursuant to paragraph 17 the Scottish Ministers shall notify the applicant and SEPA and, in a case where the application has not been referred to them under paragraph 14–

(a) SEPA shall not determine the application until the Scottish Ministers have notified it in writing (or in electronic form) that the bilateral consultations mentioned in paragraph 17 have been completed and have forwarded to it any representations duly made on the application by persons in the other Member State which have been forwarded to the Scottish Ministers; and

(b) the 4 month period within which to give notice of determination of the application set out in paragraph 15 shall begin on the date on which SEPA receives notification from the Scottish Ministers that the bilateral consultations have been completed.

(2) In determining an application which is forwarded to another Member State pursuant to paragraph 17, SEPA, or the Scottish Ministers if the application has been referred to them, shall take into consideration any representations duly made in the other Member State which have been forwarded to the Scottish Ministers.

19

In paragraphs 17 and 18, “Member State” shall be taken to include Norway, Iceland and Liechtenstein[^f00037].

PART 3 — NATIONAL SECURITY AND CONFIDENTIAL INFORMATION

20

The requirements of paragraph 5 of this Schedule shall not apply in so far as they would require the advertisement of information mentioned in paragraph 6 which is not to be included in the register by virtue of regulation 28 or 29.

21

Subject to paragraph 22, the requirements of paragraph 9 of this Schedule shall not apply in so far as they would require a person mentioned in that paragraph to be given information which is not included in the register by virtue of regulation 28 or 29.

22

Paragraph 21 does not apply in so far as–

(a) in the case of an authority mentioned in paragraph 9(b)(ii), the information is about the release of any substance into a sewer vested in that authority;

(b) in the case of Scottish National Heritage, the information is about the release of any substance which may affect a site of special scientific interest or a European site (within the meaning of regulation 10(1) of the Conservation (Natural Habitats, Etc.) Regulations 1994);

(c) in the case of an authority mentioned in paragraph 9(b)(iv), the information is about the release of any substance into a harbour managed by that authority.

23

Where a matter falls to be determined for the purposes of regulation 28 or under regulation 29–

(a) the period within which an advertisement is to be published under paragraph 5 shall be 28 days beginning 14 days after the day on which the matters to be determined for the purposes of regulation 28 or under regulation 29, as the case may be, are finally disposed of;

(b) the period for notification under paragraph 9 of this Schedule shall be the period of 14 days beginning 14 days after the day on which the matters to be determined for the purposes of regulation 28 or under regulation 29, as the case may be, are finally disposed of.

24

For the purposes of paragraph 23 and paragraph 13 of Schedule 7, the matters to be determined under regulation 29 are finally disposed of–

(a) in a case where SEPA determines under regulation 29(2) or (4) that the information in question is commercially confidential, on the date of SEPA’s determination;

(b) in a case where SEPA determines under regulation 29(2) or (4) that the information in question is not commercially confidential, on the date on which any period for bringing an appeal expires without an appeal being brought or, if such an appeal is brought, on the date of the final determination of the appeal or, as the case may be, the date on which the appeal is withdrawn.

SCHEDULE 5 — POLLUTANTS

Indicative list of the main polluting substances to be taken into account if they are relevant for fixing emission limit values–

AIR

1

Sulphur dioxide and other sulphur compounds

2

Oxides of nitrogen and other nitrogen compounds

3

Carbon monoxide

4

Volatile organic compounds

5

Metals and their compounds

6

Dust

7

Asbestos (suspended particulates, fibres)

8

Chlorine and its compounds

9

Fluorine and its compounds

10

Arsenic and its compounds

11

Cyanides

12

Substances and preparations which have been proved to possess carcinogenic or mutagenic properties or properties which may affect reproduction via the air.

13

Polychlorinated dibenzodioxins and polychlorinated dibenzofurans

WATER

1

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

2

Organophosphorus compounds

3

Organotin compounds

4

Substances and preparations which have been proved to possess carcinogenic or mutagenicproperties or properties which may affect reproduction in or via the aquatic environment

5

Persistent hydrocarbons and persistent and bioaccumulable organic toxic substances

6

Cyanides

7

Metals and their compounds

8

Arsenic and its compounds

9

Biocides and plant health products

10

Materials in suspension

11

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

12

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

SCHEDULE 6 — COMPENSATION IN RELATION TO OFF-SITE CONDITIONS

1

(1) This Schedule applies in any case where–

(a) an operator is required by an off-site condition in that person’s permit to carry out works or do other things in relation to land not forming part of the site of the installation or mobile plant notwithstanding that such person is not entitled to carry out the works or do the things;

(b) a person whose consent is required has, pursuant to the requirements of regulation 9(13), granted, or joined in granting, to the operator any rights in relation to the land; and

(c) those rights, or those rights together with other rights, are such as will enable the operator to comply with any requirements imposed on the operator by the off-site condition.

(2) In this Schedule –

“grantor” means a person mentioned in sub-paragraph (1)(b);

“relevant interest” means an interest in land in respect of which rights have been granted pursuant to the requirements of regulation 9(13).

2

In a case where this Schedule applies, any person who has granted, or joined in granting, the rights in question shall be entitled to be paid compensation under this Schedule by the operator.

3

Subject to paragraph 6(3) and (5)(b), compensation shall be payable under this Schedule for loss and damage of the following descriptions:–

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

(b) depreciation in the value of any other interest in land to which the grantor is entitled which results from the exercise of the rights;

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

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

(iii) is loss or damage for which he would have been entitled to compensation by way of compensation for disturbance if that interest had been acquired compulsorily under the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947[^f00038] in pursuance of a notice to treat served on the date on which the rights were granted;

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

(e) loss in respect of work carried out by or on behalf of the grantor which is rendered abortive by the grant of the rights or the exercise of them

(f) the amount of any valuation and legal expenses 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 (up to the point of referral to the Lands Tribunal for Scotland under paragraph 8(2)).

4

(1) Subject to sub-paragraph (2), an entitlement to compensation under this Schedule arises on the date of the grant of the rights.

(2) Where, after a grant of rights pursuant to regulation 9(13), the conditions of the permit which rendered the grant of rights necessary are upheld on the final determination of an appeal against those conditions, the entitlement to compensation arises on the date of the final determination of the appeal.

5

(2) An application for compensation under this Schedule shall be made by the grantor–

(a) within 12 months from the date on which the entitlement to compensation arises in the case of that grantor; or, as the grantor may decide,

(b) within six months from the date on which the rights are first exercised.

(2) An application shall be made in writing (or in electronic form) to the operator to whom the rights were granted and delivered at or sent by pre-paid post to the last known address for correspondence of that person.

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

(a) a copy of the grant of rights in respect of which the grantor’s entitlement arises, and of any plans attached to that grant;

(b) a description of the exact nature of any interest in land in respect of which compensation is applied for;

(c) a statement of the amount of compensation applied for, distinguishing the amounts applied for under each of sub-paragraphs (a) to (f) of paragraph 3, and showing how the amount applied for under each sub-paragraph has been calculated; and

(d) where the date on which the entitlement to compensation arises is ascertained in accordance with paragraph 4(2), a copy of the notice of the final determination of the appeal.

6

(1) The amount to be paid by way of compensation under this Schedule shall be assessed in accordance with the following sub-paragraphs.

(2) The rules set out in section 12 of the Land Compensation (Scotland) Act 1963[^f00039] (rules for assessing compensation) shall, so far as applicable and subject to any necessary modifications, have effect for the purposes of this paragraph as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land.

(3) No account shall be taken of any enhancement of the value of any interest in land, by reason of any building erected, work done or improvement or alteration made on any land in which the grantor is, or was at the time of erection, doing or making, directly or indirectly concerned, if the Lands Tribunal for Scotland is satisfied that the erection of the building, the doing of the work, the making of the improvement or the alteration was not reasonably necessary and was undertaken with a view to obtaining compensation or increased compensation.

(4) In calculating the amount of any loss under paragraph 3(e), expenditure incurred in the preparation of plans or on other similar preparatory matters, shall be taken into account.

(5) Where the interest in respect of which compensation is to be assessed is subject to a standard security, within the meaning of section 9 of the Conveyancing and Feudal Reform (Scotland) Act 1970[^f00040]–

(a) the compensation shall be assessed as if the interest were not subject to that security;

(b) no compensation shall be payable in respect of the interest of the creditor (as distinct from the interest which is subject to the security); and

(c) any compensation which is payable in respect of the interest which is subject to the security shall be paid (subject to the maximum due thereunder) to the creditor in that security or, if there is more than one creditor, to the first ranking of such creditors and shall, in either case, be applied by such creditor as if it were proceeds of sale.

7

(1) Compensation payable under this shall carry interest at the rate for the time being prescribed under section 40 of the Land Compensation (Scotland) Act 1963 from the date specified in sub-paragraph (2) until payment.

(2) The date specified in this sub-paragraph is–

(a) in the case of compensation payable by virtue of paragraph 3(a) or (b), the date of depreciation;

(b) in the case of compensation payable by virtue of paragraph 3(c), (d) or (e), the date on which the loss is sustained or the damage done or, where injurious affection is sustained, the date of the injurious affection;

(3) If it appears to any person (“the first person”) that the first person may become liable to pay to another person (“the second person”) compensation under this Schedule or interest under this paragraph the first person may, if the second person requests in writing for the first person to do so, make one or more payments on account of such compensation or interest.

(4) If, after a payment has been made by any person under sub-paragraph (3)–

(a) it is agreed or determined that compensation or interest is not liable to be paid; or

(b) by reason of any agreement or determination, any payment under that sub-paragraph is shown to be excessive,

the payment or, as the case may be, excess shall be recoverable by that person.

8

(1) Amounts of compensation determined under this Schedule shall be payable–

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

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

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

(2) Any question of the application of paragraph 6(3) or of disputed compensation shall be referred to and determined by the Lands Tribunal for Scotland.

(3) In relation to the determination of any such question, sections 9 and 11 of the Land Compensation (Scotland) Act 1963 (procedure on reference to the Lands Tribunal and expenses)[^f00041] shall apply as if–

(a) the reference in section 9(1) of that Act to section 8 of that Act were a reference to sub-paragraph (2), and

(b) references in section 11 of that Act to the acquiring authority were references to the operator.

SCHEDULE 7

PART 1 — APPLICATIONS FOR VARIATION OF CONDITIONS

1

An application under regulation 13(2) for the variation of the conditions of a permit shall be in writing (or in electronic form) and shall contain the following information:–

(a) the name of the applicant, that person’s telephone number, address (including post code) and e-mail address (if any) and, if different, the address or e-mail address to which correspondence relating to the application should be sent;

(b) in the case of a permit to operate an installation or Part A mobile plant, the address of the site of the installation or mobile plant to which the permit applies;

(c) if appropriate, a description of the proposed change in the operation of the installation or mobile plant requiring the variation and a statement of any changes as respects the matters dealt with in paragraph 1(1)(f) to (k) of Schedule 4 which would result if the proposed change were made;

(d) in the case of a variation required by a proposed substantial change in the operation of a Part A installation, any relevant information obtained or conclusion arrived at in relation to the proposed change pursuant to articles 5, 6 and 7 of Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment[^f00042];

(e) an indication of the variations to the conditions of the permit which the operator wishes SEPA to make;

(f) any additional information which the operator wishes SEPA to take into account in considering the application.

2

If a proposed change in the operation of a Part A installation or Part A mobile plant will result in additional land being included within the site of the installation or mobile plant, the application shall also contain a site report for that additional land describing the condition of the land, in particular, identifying any substance in, on or under the land which may constitute a pollution risk.

3

SEPA may, by notice in writing (or in electronic form) to the applicant, require the applicant to furnish such further information specified in the notice, within the period so specified, as it may require for the purpose of determining the application and where the applicant fails to furnish the specified information within the period specified, the application shall, if SEPA gives notice to the operator that it treats the failure as such, be deemed to have been withdrawn at the end of that period.

PART 2 — DETERMINATION OF APPLICATIONS FOR VARIATIONS AND VARIATION NOTICES

4

(1) Subject to paragraphs (3) and (4), this paragraph applies where–

(a) an application is made for the variation of the conditions of a permit under regulation 13(2) which will authorise a substantial change in the operation of an installation or mobile plant; or

(b) SEPA proposes to serve a variation notice under regulation 13(5) otherwise than for the purposes of determining an application mentioned in paragraph (a) and the variation will authorise a substantial change in the operation of an installation or mobile plant.

(2) Subject to sub-paragraphs (3) and (4), this paragraph shall also apply where an application is made for the variation of the conditions of a permit under regulation 13(2) or SEPA proposes to serve a variation notice under regulation 13(5) and SEPA determine that in the particular circumstances the procedure set out in the following sub-paragraphs should be followed even though no substantial change is involved (so that paragraph (1) does not apply).

(3) This paragraph shall not apply where SEPA proposes to serve a variation notice–

(a) which has been modified to take account of representations made in accordance with this paragraph in relation to the SEPA’s previous proposal to serve the notice without the modifications; or

(b) in order to comply with a direction given by the Scottish Ministers.

(4) This paragraph shall not apply in relation to an application for the variation of the conditions of a permit or a proposed variation notice relating to an installation involving only the burning of waste oil (as defined in Section 1.1 of Part 1 of Schedule 1) in an appliance with a rated thermal input of less than 0.4 megawatts.

(5) Where this paragraph applies, SEPA shall–

(a) notify the operator that the paragraph applies by virtue of sub-paragraph (1) or a determination under sub-paragraph (2) and of any fee prescribed in respect of the variation on the application of this paragraph under section 41 of the Environment Act 1995;

(b) in the case of a proposed variation notice, serve a copy of the proposed notice on the operator;

(c) give notice of the application or proposed variation notice, enclosing a copy of it, to the persons to whom notice would have to be given in accordance with paragraph 9 of Schedule 4 in the case of an application for a permit to operate the installation or mobile plant.

(6) In the case of an application to which this paragraph applies–

(a) SEPA shall, subject to paragraph 15(a), comply with sub-paragraph (5) within 14 days of receiving the application;

(b) if the applicant does not pay to SEPA any fee notified under sub-paragraph (5)(a) within 28 days of the notification, the application shall be deemed to have been withdrawn.

(7) For the purpose of calculating the 14 day period mentioned in sub-paragraph (6)(a), no account shall be taken of any period beginning with the date on which notice is served on an operator under paragraph 3 and end ing on the date on which the operator furnishes the information specified in the notice.

(8) Subject to paragraph 15(b), an operator notified under sub-paragraph (5)(a) shall, within 28 days beginning on the day on which the notification is made, advertise the application or proposed variation notice, as the case may be–

(a) in the case of a variation affecting the operation of an installation or Part A mobile plant, in one or more newspapers circulating in the locality in which the installation or mobile plant is operated; and

(b) in the case of a Part A installation or Part A mobile plant, in the Edinburgh Gazette.

(9) An advertisement required by sub-paragraph (8) shall–

(a) state the name of the operator;

(b) in the case of a variation affecting the operation of an installation or Part A mobile plant, state the address of the site of the installation or mobile plant concerned;

(c) describe briefly the activities in Part 1 of Schedule 1 carried out in the installation or by means of the mobile plant and the change in the operation of the installation or mobile plant that will be authorised by the variation;

(d) state where any register containing particulars of the application or proposed variation notice may be inspected and that it may be inspected free of charge;

(e) explain that any person may make representations to SEPA in writing (or in electronic form acceptable to it) within the period of 28 days beginning with the date of the advertisement and give the address of SEPA for receiving the representations;

(f) explain that any such representations made by any person will be entered in a public register unless that person requests in writing (or in electronic form) that they should not be so entered, and that where such a request is made there will be included in the register a statement indicating only that representations have been made which have been the subject of such a request.

(10) Sub-paragraph (8) shall not apply in relation to an application for the variation of the conditions of a permit or a proposed variation notice relating to an installation which is only used to carry out an activity falling within paragraph (c)(ii) of Part B of Section 1.2 of Part 1 of Schedule 1 (unloading of petrol at service stations).

(11) Any representations made by any person within the period allowed shall be considered by SEPA in determining the application or before serving the variation notice.

(12) For the purpose of sub-paragraph (11), the period allowed for making representations is–

(a) in the case of persons notified pursuant to sub-paragraph (5)(c), the period of 28 days beginning with the date on which notice of the application or proposed variation notice was given under that sub-paragraph;

(b) in the case of other persons, the period of 28 days beginning with the date on which the application or proposed variation notice was advertised pursuant to sub-paragraph (8).

(13) Where this paragraph applies by virtue of sub-paragraph (1) to a variation affecting the operation of a Part A installation, any relevant information obtained or conclusion arrived at pursuant to Articles 5, 6 and 7 of Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment in relation to the substantial change shall be taken into consideration by SEPA in determining the application or before serving the variation notice.

5

(1) If SEPA proposes to serve a variation notice which will result in the inclusion of an off-site condition in the permit concerned, it shall, before serving the variation notice, give a notice which complies with sub-paragraph (3) to every person appearing to it to be a person falling within sub-paragraph (2).

(2) A person falls within this sub-paragraph if–

(a) that person is the owner, tenant or occupier of the land; and

(b) that land is land in relation to which it is likely that, as a consequence of the off-site condition in question, rights will have to be granted by virtue of regulation 9(13) to the holder of the permit.

(3) A notice served under sub-paragraph (1) shall–

(a) set out the off-site condition in question;

(b) indicate the nature of the works or things which that condition might require the holder of the permit to carry out or do; and

(c) specify a period, not being less than 28 days beginning on the date on which the notice is served, in which representations may be made to SEPA relating to the condition or its possible effects and the manner in which any such representations are to be made.

(4) In sub-paragraph (2), “owner” has the same meaning as in paragraph 11(4) of Schedule 4.

(5) Any representations made by a person notified under sub-paragraph (1) within the period of 28 days beginning with the date on which notice was given under that sub-paragraph shall be considered by SEPA before serving the variation notice.

6

(1) The Scottish Ministers may give directions to SEPA requiring that any particular application under regulation 13(2) or any class of such applications shall be referred to them for determination pending a further direction under sub-paragraph (6).

(2) SEPA shall inform the applicant of the fact that the application is being transmitted to the Scottish Ministers and shall forward to the Scottish Ministers any representations which have been made to it within the period allowed.

(3) Where an application for the variation of the conditions of a permit is referred to them under sub-paragraph (1), the Scottish Ministers may afford the applicant and SEPA an opportunity of appearing before and being heard by a person appointed by them and they shall do so in any case where a request is duly made by the applicant or SEPA to be so heard.

(4) A request under sub-paragraph (3) shall be in writing (or in electronic form) and shall be made within the period of 21 days beginning with the day on which the applicant is informed that the application is being transmitted to the Scottish Ministers.

(5) Paragraphs 4(2) to (10) of Schedule 8 shall apply to a hearing held under sub-paragraph (3) as they apply to a hearing held under paragraph 4(1) of that Schedule but with the following modifications:–

(a) with the substitution in sub-paragraph (3) for the reference to the appellant of a reference to the applicant;

(b) with the substitution in sub-paragraph (4)–

(i) for the reference to the appeal of a reference to the application; and

(ii) for the reference to every person mentioned in paragraph 3(1)(a) of Schedule 8 and every person mentioned in paragraph 3(1)(b) and (c) of that Schedule who has made representations to the Scottish Ministers in writing of a reference to every person who was required to be notified under paragraph 3(4)(b) of this Schedule and to any person who made representations to SEPA with respect to the subject matter of the application;

(i) for the reference in sub-paragraph (7)(a) to the appellant of a reference to the applicant;

(ii) for the reference in sub-paragraph (7)(c) to any person required under paragraph 3(1)(a) of Schedule 8 to be notified of the appeal of a reference to any person required under paragraph 3(4)(b) of this Schedule to be notified of the application.

(6) In relation to SEPA and the applicant, regulation 22(5) and (6) shall apply to any determination by the Scottish Ministers of any application referred to them under sub-paragraph (1) as it applies to decisions made by the Scottish Ministers under regulation 22(1) or (2).

(7) On determining any application transferred under this paragraph, the Scottish Ministers shall (or, on determining an appeal, the sheriff, may) give to SEPA such a direction as considered fit as to whether it is to grant the application and, if so, as to the conditions that are to be attached to the permit by means of the variation notice.

7

(1) Except in a case where an application has been referred to the Scottish Ministers under paragraph 6 and, subject to paragraph 10, SEPA shall give notice of its determination of an application under regulation 13(2)–

(a) where the consultation and advertising procedure set out in paragraph 4 applies, within the period of 4 months beginning with the day on which it received the application;

(b) where that procedure does not apply, within the period of 3 months beginning with the day on which it received the application,

or, in either case, within such longer period as may be agreed with the applicant.

(2) For the purpose of calculating the periods mentioned in sub-paragraphs (1)(a) and (b) no account shall be taken of–

(a) any period beginning with the date on which notice is served on an operator under paragraph 3 and ending on the date on which the operator furnishes the information specified in the notice;

(b) any period allowed for making representations in relation to a notice given pursuant to paragraph 5 in so far as that period does not overlap with any other period allowed for making representations in accordance with paragraph 4(12);

(c) where a matter falls to be determined for the purposes of regulation 28 or under regulation 29, any period beginning with the date on which the period of 28 days referred to in paragraph 4(8) ends and ending on the date on which the application is advertised in accordance with paragraph 15(b).

8

If SEPA fails to give notice of its determination of an application for a permit within the period allowed by or under paragraph 7, the application shall, if the applicant notifies SEPA in writing (or in electronic form acceptable to it) that the applicant treats the failure as such, be deemed to have been refused at the end of that period.

9

Where the Scottish Ministers are aware that an application or proposal to serve a variation notice mentioned in paragraph 4(1) relates to a substantial change in the operation of an installation carrying out activities listed in Annex I to the Directive which is likely to have significant negative effects on the environment of another Member State, or where another Member State likely to be significantly affected so requests, the Scottish Ministers shall, at the same time as the application or proposed variation notice is advertised pursuant to paragraph 4(8) (or as soon as they become so aware or receive such a request, if they become so aware or receive such a request after the application or proposed variation notice is published but before the application is determined or the variation notice is served), forward a copy of the application or proposed variation notice to the Secretary of State for onward transmission to the other Member State, in order that the application or proposed variation notice may serve as the basis for any consultations necessary in the framework of the bilateral relations between the United Kingdom and the other Member State on a reciprocal and equivalent basis, as referred to in Article 17 of the Directive.

10

Where an application or proposal to serve a variation notice is forwarded to the Secretary of State for onward transmission to another Member State pursuant to paragraph 9, the Scottish Ministers shall notify the operator of the installation concerned and SEPA and–

(a) SEPA shall not determine the application (where the application has not been referred to the Scottish Ministers under paragraph 6) or serve the variation notice until the Scottish Ministers have notified it in writing (or in electronic form) that the bilateral consultations required by paragraph 9 have been completed and have forwarded to it any representations duly made on the application or proposed variation by persons in the other Member State which have been forwarded to the Scottish Ministers; and

(b) in the case of an application to be determined by SEPA, the time period within which to determine the application set out in paragraph 7 shall begin on the day on which it receives that notification by the Scottish Ministers that the bilateral consultations have been completed.

11

In determining an application or before serving a variation notice which has been forwarded to another Member State pursuant to paragraph 7, SEPA, or, in the case of an application, the Scottish Ministers if the application has been referred to them, shall take into consideration any representations duly made in the other Member State which have been forwarded to the Scottish Ministers.

12

In paragraphs 9 to 11, “Member State” shall be taken to include Norway, Iceland and Liechtenstein.

PART 3 — NATIONAL SECURITY AND CONFIDENTIAL INFORMATION

13

The requirements of paragraph 4(8) of this Schedule shall not apply in so far as they would require the advertisement of information mentioned in paragraph 4(9) which is not to be included in the register by virtue of regulation 28 or 29.

14

Paragraphs 21 and 22 of Schedule 4 shall apply in relation to the requirement to give notice under paragraph 4(5)(b) of this Schedule as they apply to the requirement to give notice under paragraph 9 of that Schedule.

15

Where a matter falls to be determined for the purposes of regulation 28 or under regulation 29–

(a) the period for notification under paragraph 4(5)(b) of this Schedule shall be the period of 14 days beginning 14 days after the day on which the matters to be determined for the purposes of regulation 28 or under regulation 29, as the case may be, are finally disposed of;

(b) the period within which an advertisement is to be published under paragraph 4(8) shall be 28 days beginning 14 days after the day on which the matters to be determined for the purposes of regulation 28 or under regulation 29, as the case may be, are finally disposed of.

SCHEDULE 8 — PROCEDURES IN CONNECTION WITH APPEALS TO THE SCOTTISH MINISTERS

1

(1) A person who wishes to appeal to the Scottish Ministers under regulation 22 shall give to the Scottish Ministers written notice of the appeal together with the documents specified in sub-paragraph (2) and shall at the same time send to SEPA a copy of that notice together with copies of the documents specified in sub-paragraph (2)(a) and (f).

(2) The documents mentioned in sub-paragraph (1) are–

(a) a statement of the grounds of appeal;

(b) a copy of any relevant application;

(d) a copy of any relevant correspondence between the appellant and SEPA;

(e) a copy of any decision or notice which is the subject matter of the appeal;

(f) a statement indicating whether the appellant wishes the appeal to be in the form of a hearing or to be disposed of on the basis of written representations.

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

2

(1) Subject to sub-paragraph (2), notice of appeal in accordance with paragraph 1 is to be given–

(a) in the case of an appeal under regulation 22(1), before the expiry of the period of six months beginning with the date of the decision or deemed decision which is the subject matter of the appeal;

(b) in the case of an appeal under regulation 22(2) against a revocation notice, before the date on which the revocation takes effect;

(c) in the case of an appeal under regulation 22(2) against a variation notice, an enforcement notice or a suspension notice, before the expiry of the period of two months beginning with the date of the notice which is the subject matter of the appeal.

(2) The Scottish Ministers may in a particular case allow notice of appeal to be given after the expiry of the periods mentioned in sub-paragraph (1)(a) or (c).

3

(1) Subject to sub-paragraph (4), SEPA shall, within 14 days of receipt of the copy of the notice of appeal sent in accordance with paragraph 1, give notice of it to–

(a) any person who was required to be given notice of the subject matter of the appeal under paragraph 9 of Schedule 4 or paragraph 4(5)(c) of Schedule 7;

(b) any person who made representations to SEPA with respect to the subject matter of the appeal; and

(2) A notice under sub-paragraph (1) shall–

(a) state that notice of appeal has been given;

(b) state the name of the appellant and, where the appeal concerns an installation or Part A mobile plant, the address of the site of the installation or mobile plant;

(d) state that representations with respect to the appeal may be made to the Scottish Ministers in writing (or in electronic form) by any recipient of the notice within a period of 21 days beginning with the date of the notice and that copies of any representations so made will be furnished to the appellant and to SEPA;

(e) explain that any such representations made by any person will be entered in a public register unless that person requests in writing (or in electronic form) that they should not be so entered, and that where such a request is made there will be included in the register a statement indicating only that representations have been made which have been the subject of such a request;

(f) state that if a hearing is to be held wholly or partly in public, a person mentioned in sub-paragraph (1)(b) or (c) who makes representations with respect to the appeal and any person mentioned in sub-paragraph (1)(a) will be notified of the date of the hearing.

(3) SEPA shall, within 14 days of sending a notice under sub-paragraph (1), notify the Scottish Ministers of the persons to whom and the date on which the notice was sent.

(4) In the event of an appeal being withdrawn, SEPA shall give notice of the withdrawal to every person to whom notice was given under sub-paragraph (1).

4

(1) Before determining an appeal under regulation 22, the Scottish Ministers may afford the appellant and SEPA an opportunity of appearing before and being heard by a person appointed by him (the “appointed person”) and they shall do so in any case where a request is duly made by the appellant or SEPA to be so heard.

(2) A hearing held under sub-paragraph (1) may, if the appointed person so decides, be held wholly, or held to any extent, in private.

(3) Where the Scottish Ministers cause a hearing to be held under sub-paragraph (1), they shall give the appellant and SEPA at least 28 days written notice (or such shorter period of notice as they may agree) of the date, time and place fixed for the holding of the hearing.

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

(a) where the appeal relates to the operation of an installation or Part A mobile plant, publish a copy of the notice mentioned in sub-paragraph (3) in a newspaper circulating in the locality in which the installation or mobile plant is operated;

(b) serve a copy of that notice on every person mentioned in paragraph 3(1)(a) and on every person mentioned in paragraphs 3(1)(b) and (c) who has made representations to the Scottish Ministers.

(5) The Scottish Ministers may vary the date fixed for the holding of any hearing and sub-paragraphs (3) and (4) shall apply to the variation of a date as they applied to the date originally fixed.

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

(7) The persons entitled to be heard at a hearing are–

(a) the appellant;

(b) SEPA; and

(8) Nothing in sub-paragraph (7) shall prevent the appointed person from permitting any other persons to be heard at the hearing and such permission shall not be unreasonably withheld.

(9) After the conclusion of a hearing, the appointed person shall make a report to the Scottish Ministers in writing (or in electronic form acceptable to them) which shall include the conclusions and recommendations of that person or the reasons for not making any recommendation.

(10) Subsections (3) to (8) of section 210 of the Local Government (Scotland) Act 1973[^f00043] (which relates to the costs of and holding of local inquiries) shall apply to hearings held under this paragraph by an appointed person as they apply to inquiries held under that section, but with the following modifications, that is to say:–

(a) with the substitution in subsection (3) (notice of inquiry) for the reference to the person appointed to hold the inquiry of a reference to the appointed person;

(b) with the substitution in subsection (4) (evidence) for the reference to the person appointed to hold the inquiry and, in paragraph (b), the reference to the person holding the inquiry of references to the appointed person;

(c) with the substitution in subsection (6) (expenses of witnesses etc.) for the references to the Minister causing the inquiry to be held of a reference to the appointed person or the Scottish Ministers;

(d) with the substitution in subsection (7) (expenses) for the references to the Minister of references to the appointed person or the Scottish Ministers;

(e) with the substitution in subsection (7A) (recovery of entire administrative expense)–

(i) for the first reference to the Minister of a reference to the appointed person or the Scottish Ministers;

(ii) in paragraph (a), for the reference to the Minister of a reference to the Scottish Ministers; and

(iii) in paragraph (b), for the reference to the Minister holding the inquiry of a reference to the Scottish Ministers;

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

(i) for the first reference to the Minister of a reference to the Scottish Ministers;

(ii) in paragraphs (a) and (c), for the references to the person appointed to hold the inquiry of references to the appointed person; and

(iii) in paragraph (d), for the reference to the Minister of a reference to the appointed person or the Scottish Ministers; and

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

5

(1) Where the appeal is to be disposed of on the basis of written representations, SEPA shall submit any written representations to the Scottish Ministers not later than 28 days after receiving a copy of the documents mentioned in paragraph 1(2)(a) and (f) .

(2) The appellant shall make any further representations by way of reply to any representations from SEPA not later than 17 days after the date of submission of those representations by it.

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

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

(5) The Scottish Ministers shall send to the appellant and SEPA a copy of any representations made to them by the persons mentioned in paragraph 3(1) and shall allow the appellant and SEPA a period of not less than 14 days in which to make representations on them.

(6) The Scottish Ministers may in a particular case–

(a) set later time limits than those mentioned in this paragraph;

(b) require exchanges of representations between the parties in addition to those mentioned in paragraphs (1) and (2).

6

(1) The Scottish Ministers shall give notice to the appellant of their determination of the appeal and shall provide the appellant with a copy of any report mentioned in paragraph 4(9).

(2) The Scottish Ministers shall at the same time send–

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

(b) a copy of their determination of the appeal to any person mentioned in paragraph 3(1)(b) and (c) who made representations to the Scottish Ministers and, if a hearing was held, to any other person who made representations in relation to the appeal at the hearing.

7

Where a determination of the Scottish Ministers is quashed on appeal, the Scottish Ministers–

(a) shall send to the persons notified of their determination under paragraph 6, a statement of the matters with respect to which further representations are invited for the purposes of further consideration of the appeal;

(b) shall afford to those persons the opportunity of making, within 28 days of the date of the statement, written representations in respect of those matters; and

(c) may, as they think fit, cause a hearing to be held or reopened and, if they do so, paragraphs 4(2) to (10) shall apply to the hearing or the reopened hearing as they apply to a hearing held under paragraph 4(1),

and paragraph 6 shall apply to the redetermination of the appeal as it applies to the determination of an appeal.

SCHEDULE 9 — REGISTERS

1

Subject to regulations 28 or 29, the register maintained by SEPA under regulation 27 shall contain–

(a) all particulars of any application made to SEPA for a permit;

(b) all particulars of any notice to the applicant by SEPA under paragraph 4 of Schedule 4 and paragraph 3 of Schedule 7 and of any information furnished in response to such a notice;

(c) all particulars of any advertisement published pursuant to paragraph 5 of Schedule 4 or paragraph 4(8) of Schedule 7 and of any representations made by any person in response to such an advertisement, other than representations which the person who made them requested should not be placed in the register;

(d) in a case where any such representations are omitted from the register at the request of the person who made them, a statement by SEPA that representations have been made which have been the subject of such a request (but such statement shall not identify the person who made the representations in question);

(e) all particulars of any representations made by any person required to be given notice under paragraph 9 of Schedule 4 or paragraph 4(5)(c) of Schedule 7;

(f) all particulars of any permit granted by SEPA;

(g) all particulars of any notification of SEPA given under regulation 12(1);

(h) all particulars of any application made to SEPA for the variation, transfer or surrender of a permit;

(i) all particulars of any variation, transfer and surrender of any permit granted by SEPA;

(j) all particulars of any revocation of a permit granted by SEPA;

(k) all particulars of any enforcement notice or suspension notice issued by SEPA;

(l) all particulars of any notice issued by SEPA withdrawing an enforcement notice or a suspension notice;

(m) all particulars of any notice of appeal under regulation 22 against a decision by SEPA or a notice served by it and of the documents relating to the appeal mentioned in paragraph 1(2)(a), (d) and (e) of Schedule 8;

(n) all particulars of any representations made by any person in response to a notice given under paragraph 3(1) of Schedule 8, other than representations which the person who made them requested should not be placed in the register;

(o) in a case where any such representations are omitted from the register at the request of the person who made them, a statement by SEPA that representations have been made which have been the subject of such a request (but such statement shall not identify the person who made the representations in question);

(p) all particulars of any written notification of the determination by the Scottish Ministers (or, as the case may be, the sheriff) of an appeal and any report accompanying any written notification;

(q) details of any conviction of any person for any offence under regulation 30(1) which relates to the operation of an installation or mobile plant under a permit granted by SEPA, or without such a permit in circumstances where one is required by regulation 6, including the name of the person, the date of conviction and, in the case of a conviction, the penalty imposed and the name of the Court;

(r) all particulars of any monitoring information relating to the operation of an installation or mobile plant under a permit granted by SEPA which has been obtained by it as a result of its own monitoring or furnished to it in writing (or in electronic form acceptable to it) by virtue of a condition of the permit or under regulation 26(2);

(s) in a case where any such monitoring information is omitted from the register by virtue of regulation 29, a statement by SEPA, based on the monitoring information from time to time obtained by or furnished to it, indicating whether or not there has been compliance with any relevant condition of the permit;

(t) all particulars of any other information furnished in compliance with a condition of the permit, a variation notice, enforcement notice or suspension notice, or regulation 26(2);

(u) where a permit granted by SEPA authorises the carrying out a specified waste management activity, all particulars of any waste management licence (within the meaning of regulation 15(13)) which ceased to have effect on the granting of the permit in so far as they may be relevant for the purpose of determining under regulation 15 whether any pollution risk results from the carrying out of such an activity on the site covered by the permit;

(v) all particulars of any report published by SEPA relating to an assessment of the environmental consequences of the operation of an installation in the locality of premises where the installation is operated under a permit granted by it; and

(w) all particulars of any direction (other than a direction given for the purposes of section 20 of the Environmental Protection Act 1990 and applied in respect of the register maintained under regulation 27 by virtue of regulation 28) given to SEPA under any provision of these Regulations.

2

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

3

Where, following the amendment of Schedule 1, these Regulations ceases to apply to a description of installation or mobile plant, all particulars relating to units of that description shall be removed from the register not less than two months and not more than three months after the date on which the amendment comes into force.

4

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

(a) monitoring information relating to a particular installation or mobile plant four years after that information was entered in the register; or

(b) information relating to a particular installation or mobile plant which has been superseded by later information relating to that installation or mobile plant four years after that later information was entered in the register,

but this paragraph shall not apply to any aggregated monitoring data relating to overall emissions of any substance or class of substance from installations or mobile plant generally or from any class of installations or mobile plant.

SCHEDULE 10 — CONSEQUENTIAL AMENDMENTS

PART 1 — PUBLIC GENERAL ACTS

Control of Pollution Act 1974

1

After section 30I(1) of the Control of Pollution Act 1974(interpretation)[^f00044], insert after paragraph (b)–

(ba) a permit granted by SEPA under regulations made under section 2 of the Pollution Prevention and Control Act 1999;

Income and Corporation Taxes Act 1988

2

In section 91A(6) of the Income and Corporation Taxes Act 1988 (waste disposal : restoration payments)[^f00045], after paragraph (b) insert–

(ba) a permit granted under regulations under section 2 of the Pollution Prevention and Control Act 1999, or

Environmental Protection Act 1990

3

(1) The Environmental Protection Act 1990[^f00046] has effect subject to the following amendments.

(2) In section 6 (authorisations : general provisions)–

(a) at the beginning of subsection (6) insert “Subject to subsection (6A) below,”;

(b) after that subsection insert–

(6A) Subsection (6) above shall not require a review of the conditions of an authorisation to be carried out if– (a) the prescribed process covered by the authorisation is carried on in a new Part A installation or by means of a new Part A mobile plant; (b) the prescribed process covered by the authorisation is carried on in an existing Part A installation or by means of an existing Part A mobile plant and the review would be carried out within the period of two years ending at the beginning of the relevant period for that installation or mobile plant; (c) the prescribed process covered by the authorisation is carried on in an existing Part B installation or by means of an existing Part B mobile plant and the review would be carried out within the two year period ending on the relevant date for that installation or mobile plant. (6B) In subsection (6A) above, “new Part A installation”, “existing Part A installation”, “new Part A mobile plant”, “existing Part A mobile plant”, “relevant period”, “existing Part B installation”, “existing Part B mobile plant” and “relevant date” have the meanings given in Schedule 3 to the Pollution Prevention and Control (Scotland) Regulations 2000.

(3) In section 34(1)(duty of care as respects waste)–

(a) in subsection (1), after paragraph (a) insert–

(aa) to prevent any contravention by any other person of regulation 6 of the Pollution Prevention and Control (Scotland) Regulations 2000 or of a condition of a permit granted under regulation 7 of those Regulations;

(b) in paragraph (c)(ii), after the words “that section”, insert “or any condition of a permit granted under regulation 7 of those Regulations;”.

(4) In section 35 (waste management licences : general)–

(a) in subsection (11) after “until” insert “it ceases to have effect under subsection (11A) below,”;

(b) after subsection (11) insert–

(11A) A licence shall cease to have effect if and to the extent that the treatment, keeping or disposal of waste authorised by the license is authorised by a permit granted under regulations under section 2 of the Pollution Prevention and Control Act 1999.

(5) In section 78YB (interaction of contaminated land provisions with other enactments)[^f00047], after subsection (2) insert–

(2A) This Part shall not apply if and to the extent that– (a) any significant harm, or pollution of controlled waters, by reason of which the land would otherwise fall to be regarded as contaminated, is attributable to the final disposal by deposit in or on land of controlled waste); and (b) enforcement action may be taken in relation to that activity. (2B) A remediation notice shall not be served in respect of contaminated land if and to the extent that– (a) the significant harm, or pollution of controlled waters, by reason of which the contaminated land is such land is attributable to an activity (other than the final disposal by deposit in or on land of controlled waste); and (b) enforcement action may be taken in relation to that activity. (2C) In subsections (2A) and (2B) above– - “controlled waste” has the meaning given in section 75(4) of this Act; - “enforcement action” means action under regulation 19 (enforcement notices) or regulation 21(2) (power of the Scottish Environment Protection Agency to remedy pollution) of the Pollution Prevention and Control (Scotland) Regulations 2000.

(6) In section 79(10) (restrictions on taking proceedings for statutory nuisance)[^f00048], for the words “or (e)” substitute “,(e) or (g)” and for “paragraph (g) or (ga)” substitute “paragraph (ga)”.

Clean Air Act 1993

4

(1) The Clean Air Act 1993[^f00049] has effect subject to the following amendments.

(2) In section 31(4) (regulations about sulphur content of oil fuel for furnaces or engines)–

(a) in paragraph (a), after which is, insert “(i)” and after “1990” insert “or (ii) part of an installation subject to regulation by the Scottish Environment Protection Agency under regulations made under the Pollution Prevention and Control Act 1999”; and

(b) in paragraph (b), for “such furnaces” substitute “furnaces within sub-paragraph (i) of paragraph (a) above and of the Scottish Environment Protection Agency to enforce those provisions in relation to furnaces within sub-paragraph (ii) of that paragraph”.

(3) In section 36 (notices requiring information about air pollution), after subsection (2) insert–

(2A) If the notice relates to an installation subject to regulations made under section 2 of the Pollution Prevention and Control Act 1999, the person on whom the notice is served shall not be obliged to supply any information which, as certified by the Scottish Environment Protection Agency, is not of a kind which is being supplied to it for the purposes of those regulations.

(4) After section 41 (relation to the Environmental Protection Act 1990) insert–

(41A) (1) Where an activity is subject to regulations under section 2 of the Pollution Prevention and Control Act 1999 (regulation of polluting activities) Parts I to III of this Act shall not apply as from the determination date for the activity in question. (2) The “determination date”, for an activity, is– (a) in the case of an activity for which a permit is granted, the date on which it is granted, whether in pursuance of the application, or on an appeal, of a direction to grant it; (b) in the case of an activity for which a permit is refused, the date of refusal or, on appeal, of the affirmation of the refusal. (3) In subsection (2) “permit” means a permit under regulations under section 2 of the Pollution Prevention and Control Act 1999 and the reference to an appeal is a reference to an appeal under those regulations.

Environment Act 1995

5

(1) The Environment Act 1995[^f00050] has effect subject to the following amendments.

(2) In section 56(1) (interpretation of Part I of the 1995 Act), after paragraph (a) of the definition of “environmental licence” in relation to SEPA insert–

(aa) a permit granted by SEPA under regulations under section 2 of the Pollution Prevention and Control Act 1999

(3) In section 108(15) (powers of entry -interpretation) after paragraph (m) of the definition of “pollution control functions” insert–

(n) in relation to SEPA, regulations under section 2 of the Pollution Prevention and Control Act 1999;

(4) In section 114(2)(a) (power to delegate functions relating to appeals), after sub-paragraph (vii) insert–

(viii) regulations under section 2 of the Pollution Prevention and Control Act 1999 extending to Scotland

(5) In Schedule 20, in paragraph 4(3) (holding of inquiries and other hearings by appointed persons)—

(a) omit “or” at the end of paragraph (b); and

(b) insert after paragraph (c)–

; or (d) regulation 22 of the Pollution Prevention and Control (Scotland) Regulations 2000,

Finance Act 1996

6

(1) The Finance Act 1996[^f00051] has effect subject to the following amendments.

(2) In section 43A(4)[^f00052] (contaminated land)–

(a) omit “or” at the end of paragraph (f); and

(b) insert after paragraph (g)–

(h) an enforcement notice served under regulation 19 of the Pollution Prevention and Control (Scotland) Regulations 2000; (j) a suspension notice served under regulation 20 of those Regulations; or (k) an order under regulation 33 of those Regulations.

(3) After section 67(b) (operators of landfill sites) insert–

(ba) the person who is at the time concerned the holder of the permit, where section 66(ba) above applies;

PART 2 — SUBORDINATE LEGISLATION

The Radioactive Substances (Hospitals) Exemption Order 1990

7

In the definition of “site licence” in article 2(1) of the Radioactive Substances (Hospitals) Exemption Order 1990[^f00053], after “1990” insert “or a permit under the Pollution Prevention and Control (Scotland) Regulations 2000”.

The Environmental Protection (Prescribed Processes and Substances)Regulations 1991

8

After regulation 3 of the Environmental Protection (Prescribed Processes and Substances) Regulations 1991[^f00054] insert–

(3A) (1) Where a process which is being carried on under an authorisation requires a permit under the Pollution Prevention and Control (Scotland) Regulations 2000 authorising the carrying on of that process in an installation or by means of mobile plant and an application is made (or deemed to have been made) under those Regulations for the permit, that process shall, from the determination date for the installation or mobile plant, as the case may be, no longer be taken to fall within a description in Schedule 1. (2) Where a process which is not being carried on under an authorisation requires a permit under those Regulations authorising the carrying on of that process in an installation or by means of mobile plant, that process shall not be taken to fall within a description in Schedule 1 from the date on which the permit is required. (3) In this regulation, “installation” and “mobile plant” have the meanings given in regulation 2(1) of the Pollution Prevention and Control (Scotland) Regulations 2000 and “determination date” has the meaning given in Schedule 3 to those Regulations.

The Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991

9

At the end of Schedule 1 to the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991[^f00055] insert “The Pollution Prevention and Control (Scotland) Regulations 2000.”.

The Environmental Protection (Duty of Care) Regulations 1991

10

In the Table in regulation 2 of the Environmental Protection (Duty of Care) Regulations 1991[^f00056], after the second entry in column 1 insert–

A person who is the holder of a permit under the Pollution Prevention and Control (Scotland) Regulations 2000 which authorises the carrying out of a specified waste management activity within the meaning of those Regulations.

The Waste Management Licensing Regulations 1994

11

(1) The Waste Management Licensing Regulations 1994[^f00057] have effect subject to the following amendments.

(2) In regulation 1(3) after the definition of “the 1991 Regulations” insert–

“the 2000 Regulations” means the Pollution Prevention and Control (Scotland) Regulations 2000;

(3) In regulation 3 (relevant offences) after paragraph (n) insert–

(o) regulation 30(1) of the 2000 Regulations.

(4) In regulation 10 (public registers)–

(a) after paragraph (1)(n) insert–

(o) in Scotland, the following information contained in any register maintained by the Scottish Environment Protection Agency under regulation 27 of the 2000 Regulations to the extent that it relates to a specified waste management activity carried out in the area of the authority:– (i) current or recently current permits granted under the 2000 Regulations; (ii) variation notices under regulation 13 of the 2000 Regulations varying such permits; (iii) revocation notices under regulation 17 of those Regulations and suspension notices under regulation 20 of those Regulations issued in relation to such permits; (iv) notices of determination issued under regulation 16 of those Regulations in relation to applications made to surrender such permits.

(b) in paragraph (4), after “waste management licence” where those words first occur insert “and permits granted under the 2000 Regulations”;

(5) The Scottish Environment Protection Agency shall furnish waste regulation authorities with the particulars necessary to enable them to discharge their duty under paragraph (1)(o).

(5) In regulation 11 (information to be excluded or removed from register), after paragraph (2) insert–

(3) Regulation 10(1)(o) shall not require a register maintained by a waste regulation authority under that sub-paragraph to contain any information which has been superseded by later information after 4 years have elapsed from that later information being entered in the register.

(6) In regulation 16 (exclusion from waste management licensing)–

(a) after paragraph (1)(b) insert–

(ba) the deposit in or on land, recovery or disposal of waste under a permit granted under the 2000 Regulations to operate a Part A installation; (bb) the disposal of waste under a permit granted under the 2000 Regulations where the activity is or forms part of an activity within paragraph (a) or (b) of Part A of Section 5.1 (incineration) of Part 1 of Schedule 1 to those Regulations; (bc) the disposal of waste under a permit granted under the 2000 Regulations where the activity is or forms part of an activity within paragraph (a) or (b) of Part B of Section 5.1 (incineration) of Part 1 of Schedule 1 to those Regulations in so far as the activity results in the release of substances into the air;

(b) for “and (b)” in paragraph (2) substitute “, (b) and (bc)”;

(3) In paragraph (1)(ba) “Part A installation” has the meaning given by regulation 2(1) of the 2000 Regulations.

(7) In paragraph (10) of regulation 18 (registration in connection with exempt activities)–

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