Environment Act 1995

• (3) Subsection (3) (registers in Scotland) shall cease to have effect.

• (4) In subsection (4) (port health authorities) after the word “authority” where it first occurs there shall be inserted the words “ in England and Wales ” and for the words “the chief inspector” there shall be substituted the words “ the Environment Agency ”.

• (5) In subsection (7) (registers to be available for inspection by, and facilities for obtaining copies of entries to be afforded to, the public) after paragraph (b) there shall be added the words— “ and, for the purposes of this subsection, places may be prescribed by the Secretary of State at which any such registers or facilities as are mentioned in paragraph (a) or (b) above are to be available or afforded to the public in pursuance of the paragraph in question. ”

• (6) Subsection (9) (duty to furnish the National Rivers Authority with information for purposes of its register) shall cease to have effect.

58

• (1) Section 22 of that Act (exclusion from registers of certain confidential information) shall be amended in accordance with the following provisions of this paragraph.

• (2) In subsection (5) (information not to be entered on the register until expiration of certain time limits)—

• (a) in paragraph (a), for the words “on the register” there shall be substituted the words “ in the register ”; and

• (b) in the words following paragraph (b), for the words from “on the register” onwards there shall be substituted the words “ in the register until the end of the period of seven days following the day on which the appeal is finally determined or withdrawn ”.

• (3) For subsection (6) (which applies subsections (3), (5) and (10) of section 15 in relation to appeals to the Secretary of State against decisions that information is not commercially confidential) there shall be substituted—

(6) Subsections (5) and (10) of section 15 above shall apply in relation to an appeal under subsection (5) above as they apply in relation to an appeal under that section, but— (a) subsection (5) of that section shall have effect for the purposes of this subsection with the substitution for the words from “(which may” onwards of the words “(which must be held in private)”; and (b) subsection (5) above is subject to section 114 of the Environment Act 1995 (delegation or reference of appeals etc).

59

• (1) Section 23 of that Act (offences) shall be amended in accordance with the following provisions of this paragraph.

• (2) In subsection (1) (offences) paragraphs (d) to (f) and (k) shall cease to have effect.

• (3) In subsection (2)(a) (which provides for a fine not exceeding £20,000 on summary conviction of any offence under section 23(1)(a), (c) or (l)) after the words “£20,000” there shall be inserted the words “ or to imprisonment for a term not exceeding three months, or to both ”.

• (4) Subsection (4) (punishment for offences under paragraph (d), (e), (f) or (k) of subsection (1)) shall cease to have effect.

• (5) Subsection (5) (right of inspector to prosecute before a magistrates’ court if authorised to do so by the Secretary of State) shall cease to have effect.

60

• (1) In section 27 of that Act (power of chief inspector etc to remedy harm) in subsection (1), for the words “the chief inspector or, in Scotland, a river purification authority” there shall be substituted the words “ the appropriate Agency ”.

• (2) In subsection (2) of that section (powers not to be exercised without the Secretary of State’s written approval) for the words from “The chief inspector” to “their” there shall be substituted the words “ The Environment Agency or SEPA, as the case may be, shall not exercise its ”.

61

• (1) In section 28 of that Act, in subsection (1) (which includes provision that the enforcing authority shall notify the waste regulation authority if a process involves final disposal of controlled waste by deposit in or on land) the words from “but the enforcing authority shall notify” onwards shall cease to have effect.

• (2) Subsections (3) and (4) of that section (which involve liaison between the enforcing authority and the National Rivers Authority) shall cease to have effect.

62

• (1) Section 30 of that Act (authorities for purposes of Part II) shall be amended in accordance with the following provisions of this paragraph.

• (2) For subsection (1) (waste regulation authorities) there shall be substituted—

(1) Any reference in this Part to a waste regulation authority— (a) in relation to England and Wales, is a reference to the Environment Agency; and (b) in relation to Scotland, is a reference to the Scottish Environment Protection Agency; and any reference in this Part to the area of a waste regulation authority shall accordingly be taken as a reference to the area over which the Environment Agency or the Scottish Environment Protection Agency, as the case may be, exercises its functions or, in the case of any particular function, the function in question.

• (3) In subsection (4) of that section (construction of references to authorities constituted as particular descriptions of authority and provision for the section to be subject to orders under section 10 of the Local Government Act 1985 establishing authorities for certain purposes)—

• (a) the words “or regulation”, and

• (b) the words from “establishing authorities” onwards,

shall cease to have effect.

• (4) Subsections (6) (definition of “river purification authority”), (7) and (8) (which relate to authorities which are both waste disposal and waste regulation authorities) shall cease to have effect.

63

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64

In section 33 of that Act (prohibition on unauthorised or harmful deposit, treatment or disposal etc of waste) in subsection (7) (defences) for paragraph (c) there shall be substituted—

(c) that the acts alleged to constitute the contravention were done in an emergency in order to avoid danger to human health in a case where— (i) he took all such steps as were reasonably practicable in the circumstances for minimising pollution of the environment and harm to human health; and (ii) particulars of the acts were furnished to the waste regulation authority as soon as reasonably practicable after they were done.

65

In section 34 of that Act (duty of care etc as respects waste), after subsection (3) (which specifies the persons who are authorised persons for the purposes of subsection (1)(c)) there shall be inserted—

(3A) The Secretary of State may by regulations amend subsection (3) above so as to add, whether generally or in such circumstances as may be prescribed in the regulations, any person specified in the regulations, or any description of person so specified, to the persons who are authorised persons for the purposes of subsection (1)(c) above.

66

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67

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68

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69

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70

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71

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72

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73

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74

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75

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76

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77

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78

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79

Section 61 of that Act (duty of waste regulation authorities as respects closed landfills) shall cease to have effect.

80

• (1) Section 62 of that Act (special provision with respect to certain dangerous and intractable waste) shall be amended in accordance with the following provisions of this paragraph.

• (2) In subsection (3), for paragraph (a) (regulations providing for the supervision of certain activities and the recovery of the costs from persons carrying on the activities) there shall be substituted—

(a) for the supervision by waste regulation authorities— (i) of activities authorised by virtue of the regulations or of activities by virtue of carrying on which persons are subject to provisions of the regulations, or (ii) of persons who carry on activities authorised by virtue of the regulations or who are subject to provisions of the regulations, and for the recovery from persons falling within sub-paragraph (ii) above of the costs incurred by waste regulation authorities in performing functions conferred upon those authorities by the regulations;

.

• (3) After that subsection (which also includes provision for regulations to provide for appeals to the Secretary of State) there shall be added—

(3A) This section is subject to section 114 of the Environment Act 1995 (delegation or reference of appeals etc).

81

In section 63 of that Act (waste other than controlled waste) for subsection (2) (offences relating to the deposit of waste which is not controlled waste but which, if it were such waste, would be special waste) there shall be substituted—

(2) A person who deposits, or knowingly causes or knowingly permits the deposit of, any waste— (a) which is not controlled waste, but (b) which, if it were controlled waste, would be special waste, in a case where he would be guilty of an offence under section 33 above if the waste were special waste and any waste management licence were not in force, shall, subject to subsection (3) below, be guilty of that offence and punishable as if the waste were special waste.

82

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83

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84

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85

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86

• (1) In section 71 of that Act (obtaining of information from persons and authorities) subsection (1) (which is superseded by this Act) shall cease to have effect.

• (2) In subsection (2) of that section (power by notice to require a person to furnish information within such period as may be specified in the notice) after the words “service of the notice” there shall be inserted the words “ , or at such time, ”.

87

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88

• (1) Section 75 of that Act (meaning of “waste” etc.) shall be amended in accordance with the following provisions of this paragraph.

• (2) For subsection (2) (definition of “waste”) there shall be substituted—

(2) “Waste” means any substance or object in the categories set out in Schedule 2B to this Act which the holder discards or intends or is required to discard; and for the purposes of this definition— - “holder” means the producer of the waste or the person who is in possession of it; and - “producer” means any person whose activities produce waste or any person who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of this waste.

• (3) Subsection (3) (presumption that anything discarded is waste unless the contrary is proved) shall cease to have effect.

• (4) After subsection (9) there shall be added—

(10) Schedule 2B to this Act (which reproduces Annex I to the Waste Directive) shall have effect. (11) Subsection (2) above is substituted, and Schedule 2B to this Act is inserted, for the purpose of assigning to “waste” in this Part the meaning which it has in the Waste Directive by virtue of paragraphs (a) to (c) of Article 1 of, and Annex I to, that Directive, and those provisions shall be construed accordingly. (12) In this section “the Waste Directive” means the directive of the Council of the European Communities, dated 15th July 1975, on waste, as amended by— (a) the directive of that Council, dated 18th March 1991, amending directive 75/442/EEC on waste; and (b) the directiveof that Council, dated 23rd December 1991, standardising and rationalising reports on the implementation of certain Directives relating to the environment.

89

• (1) Section 79 of that Act (statutory nuisances) shall be amended in accordance with the following provisions of this paragraph.

• (2) In subsection (1) (the paragraphs of which specify, subject to subsections (2) to (6A), the matters which constitute statutory nuisances) for the words “Subject to subsections (2) to (6A) below” there shall be substituted the words “ Subject to subsections (1A) to (6A) below ”.

• (3) After that subsection there shall be inserted—

(1A) No matter shall constitute a statutory nuisance to the extent that it consists of, or is caused by, any land being in a contaminated state. (1B) Land is in a “contaminated state” for the purposes of subsection (1A) above if, and only if, it is in such a condition, by reason of substances in, on or under the land, that— (a) harm is being caused or there is a possibility of harm being caused; or (b) pollution of controlled waters is being, or is likely to be, caused; and in this subsection “harm”, “pollution of controlled waters” and “substance” have the same meaning as in Part IIA of this Act.

.

90

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91

Section 143 of that Act (public registers of land which may be contaminated) shall cease to have effect.

92

In section 161 of that Act (regulations and orders) in subsection (4) (which specifies the orders under that Act which are not subject to negative resolution procedure under subsection (3)) after the words “does not apply to” there shall be inserted the words

a statutory instrument— (a) which contains an order under section 78M(4) above, or (b) by reason only that it contains

.

93

• (1) Schedule 1 to that Act (authorisations for processes: supplementary provisions) shall be amended in accordance with the following provisions of this paragraph.

• (2) In Part I (grant of authorisations) in paragraph 3(3) (local inquiry or hearing to be held where request to be heard made by the applicant or the local enforcing authority) for the words “the local enforcing authority” there shall be substituted the words “ the enforcing authority ”.

• (3) In Part II (variation of authorisations) in paragraph 6, at the beginning of sub-paragraph (1) there shall be inserted the words “ Except as provided by sub-paragraph (1A) below, ”.

• (4) After that sub-paragraph there shall be inserted—

(1A) The requirements of this paragraph shall not apply in relation to any variations of an authorisation which an enforcing authority has decided to make in consequence of representations made in accordance with this paragraph and which are specified by way of variation of a variation notice by a further notice under section 10(3A) of this Act.

• (5) After paragraph 7 (applications for variation) there shall be inserted—

(8) (1) The Secretary of State may give directions to the enforcing authority requiring that any particular application or any class of applications for the variation of an authorisation shall be transmitted to him for determination pending a further direction under sub-paragraph (5) below. (2) The enforcing authority shall inform the applicant of the fact that his application is being transmitted to the Secretary of State. (3) Where an application for the variation of an authorisation is referred to him under sub-paragraph (1) above the Secretary of State may— (a) cause a local inquiry to be held in relation to the application; or (b) afford the applicant and the authority concerned an opportunity of appearing before and being heard by a person appointed by the Secretary of State; and he shall exercise one of the powers under this sub-paragraph in any case where, in the manner prescribed by regulations made by the Secretary of State, a request is made to be heard with respect to the application by the applicant or the enforcing authority concerned. (4) Subsections (2) to (5) of section 250 of the Local Government Act 1972 (supplementary provisions about local inquiries under that section) or, in relation to Scotland, subsections (2) to (8) of section 210 of the Local Government (Scotland) Act 1973 (which make similar provision) shall, without prejudice to the generality of subsection (1) of either of those sections, apply to local inquiries or other hearings in pursuance of sub-paragraph (3) above as they apply to inquiries in pursuance of either of those sections and, in relation to England and Wales, as if the reference to a local authority in subsection (4) of the said section 250 included a reference to the enforcing authority. (5) The Secretary of State shall, on determining any application transferred to him under this paragraph, give to the enforcing authority such a direction as he thinks fit as to whether it is to grant the application and, if so, as to the conditions that are to be attached to the authorisation by means of the variation notice. (9) The Secretary of State may give the enforcing authority a direction with respect to any particular application or any class of applications for the variation of an authorisation requiring the authority not to determine or not to proceed with the application or applications of that class until the expiry of any such period as may be specified in the direction, or until directed by the Secretary of State that they may do so, as the case may be. (10) (1) Except in a case where an application for the variation of an authorisation has been referred to the Secretary of State under paragraph 8 above and subject to sub-paragraph (3) below, the enforcing authority shall determine an application for the variation of an authorisation within the period of four months beginning with the day on which it received the application or within such longer period as may be agreed with the applicant. (2) If the enforcing authority fails to determine an application for the variation of an authorisation within the period allowed by or under this paragraph the application shall, if the applicant notifies the authority in writing that he treats the failure as such, be deemed to have been refused at the end of that period. (3) The Secretary of State may, by order, substitute for the period for the time being specified in sub-paragraph (1) above such other period as he considers appropriate and different periods may be substituted for different classes of application.

94

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95

After Schedule 2A to that Act there shall be inserted—

SCHEDULE 2B (1) Production or consumption residues not otherwise specified below. (2) Off-specification products. (3) Products whose date for appropriate use has expired. (4) Materials spilled, lost or having undergone other mishap, including any materials, equipment, etc, contaminated as a result of the mishap. (5) Materials contaminated or soiled as a result of planned actions (e.g. residues from cleaning operations, packing materials, containers, etc.). (6) Unusable parts (e.g. reject batteries, exhausted catalysts, etc.). (7) Substances which no longer perform satisfactorily (e.g. contaminated acids, contaminated solvents, exhausted tempering salts, etc.). (8) Residues of industrial processes (e.g. slags, still bottoms, etc.). (9) Residues from pollution abatement processes (e.g. scrubber sludges, baghouse dusts, spent filters, etc.). (10) Machining or finishing residues (e.g. lathe turnings, mill scales, etc.). (11) Residues from raw materials extraction and processing (e.g. mining residues, oil field slops, etc.). (12) Adulterated materials (e.g. oils contaminated with PCBs, etc.). (13) Any materials, substances or products whose use has been banned by law. (14) Products for which the holder has no further use (e.g. agricultural, household, office, commercial and shop discards, etc.). (15) Contaminated materials, substances or products resulting from remedial action with respect to land. (16) Any materials, substances or products which are not contained in the above categories.

The Natural Heritage (Scotland) Act 1991

96

• (1) The Natural Heritage (Scotland) Act 1991 shall be amended in accordance with the following provisions of this paragraph.

• (2) In section 15—

• (a) in subsection (2) for the words “a river purification authority, acting in pursuance of their duties under section 17(1) of the Rivers (Prevention of Pollution) (Scotland) Act 1951” there shall be substituted the words “ SEPA acting in pursuance of its duties under section 34(1) of the Environment Act 1995 ”;

• (b) in subsection (3) for the words “said Act of” and “a river purification authority” where they first occur there shall be substituted the words “ Rivers (Prevention of Pollution (Scotland) Act ” and “ SEPA ” respectively and the words “and a river purification authority of whom such a requirement is made shall make such an application” shall cease to have effect;

• (c) for subsection (5) there shall be substituted—

(5) A control area shall comprise an area or areas shown in a map or plan contained in the order.

• (3) In section 17—

• (a) in subsection (1) for the words “A river purification authority” there shall be substituted the words “ SEPA ”;

• (b) in subsection (3) for the words “A river purification authority”, “their” in both places where it occurs, “they” and “the authority” there shall be substituted the words “ SEPA ”, “ its ”, “ it ” and “ SEPA ” respectively.

• (4) In section 18—

• (a) in subsection (1) for the words “a river purification authority” and “they” there shall be substituted the words “ SEPA ” and “ it ” respectively;

• (b) in subsection (2) for the words “the river purification authority decide” there shall be substituted the words “ SEPA decides ”;

• (c) in subsection (3) for the words “a river purification authority” and “the authority” there shall be substituted the words “ SEPA ” and “ it ” respectively;

• (d) in subsection (4) for the words “the river purification authority declare” there shall be substituted the words “ SEPA declares ”;

• (e) in subsection (5) for the words “A river purification authority” and “them” there shall be substituted the words “ SEPA ” and “ it ” respectively.

• (5) In section 24—

• (a) in subsection (1)—

• (i) for the words “a river purification authority” there shall be substituted the words “ SEPA ”; and

• (ii) in paragraph (a), after the word “on” there shall be inserted the words “ SEPA or ”; and

• (b) in subsection (9)—

• (i) for the words “a river purification authority or” there shall be substituted the words “ SEPA or a ”; and

• (ii) in paragraph (a), after the word “by” where it second occurs there shall be inserted the words “ SEPA or ”.

• (6) After section 26 there shall be inserted—

(26A) In this Act “SEPA” means the Scottish Environment Protection Agency.

• (7) In Schedule 5—

• (a) in paragraph 1 for the words “the river purification authority concerned consider” there shall be substituted the words “ SEPA considers ”;

• (b) in paragraph 2 for the words “the river purification authority concerned” there shall be substituted the words “ SEPA ” and the words “in their area and” shall cease to have effect;

• (c) in paragraph 3 for the words “the river purification authority” and “their” wherever they occur there shall be substituted the words “ SEPA ” and “ its ” respectively;

• (d) in paragraphs 4 and 9 for the words “the river purification authority” wherever they occur there shall be substituted the words “ SEPA ”.

• (8) In Schedule 6—

• (a) in paragraph 1—

• (i) in sub-paragraph (1) for the words “the river purification authority” there shall be substituted the words “ SEPA ”;

• (ii) in sub-paragraph (2) for the words “A river purification authority”, “them”, “the authority” and “their” there shall be substituted respectively the words “ SEPA ”, “ it ”, “ it ” and “ its ” respectively;

• (iii) in sub-paragraph (3) for the words “the river purification authority” there shall be substituted the words “ SEPA ”;

• (iv) in sub-paragraph (4) for the words “the river purification authority”, “the authority fail” and “their” there shall be substituted the words “ SEPA ”, “ it fails ” and “ its ” respectively;

• (v) sub-paragraph (5) shall cease to have effect;

• (vi) in sub-paragraph (6) for the words “the river purification authority to whom the application has been made” there shall be substituted the words “ SEPA ”;

• (b) in paragraph 2—

• (i) in sub-paragraph (1) for the words “the river purification authority” wherever they occur there shall be substituted the words “ SEPA ”;

• (ii) in sub-paragraphs (3) and (4) for the words “the river purification authority” wherever they occur there shall be substituted the words “ SEPA ”;

• (iii) at the end there shall be added—

(6) This paragraph is subject to section 114 of the Environment Act 1995 (delegation or reference of appeals etc).

;

• (c) in paragraph 3—

• (i) in sub-paragraph (1) for the words “A river purification authority” there shall be substituted the words “ SEPA ”;

• (ii) in sub-paragraph (2) for the words “A river purification authority” and “they are” there shall be substituted the words “ SEPA ” and “ it is ” respectively;

• (iii) in sub-paragraph (4) for the words “the river purification authority” there shall be substituted the words “ SEPA ”;

• (iv) in sub-paragraph (5) for the words “the river purification authority” and “them” there shall be substituted the words “ SEPA ” and “ it ” respectively;

• (v) in sub-paragraph (6) for the words “the authority fail to intimate their” and “the river purification authority” there shall be substituted the words “ SEPA fails to intimate its ” and “ SEPA ” respectively;

• (d) in paragraph 4 for the words “A river purification authority” and “them” there shall be substituted the words “ SEPA ” and “ it ” respectively;

• (e) in paragraph 5(2) for the words “the river purification authority” there shall be substituted the words “ SEPA ”.

• (9) In Schedule 8, in paragraph 1—

• (a) for sub-paragraph (1) there shall be substituted—

(1) Before making an application for a drought order, the applicant shall consult— (a) SEPA, in a case where notice of the application is required to be served on it under this paragraph; and (b) any district salmon fishery board on whom notice of the application is required to be served under this paragraph.

;

• (b) in sub-paragraph (3), in the second column of the Table, in the fourth entry (relating to orders concerning the taking of water from a source or the discharge of water to a place), in paragraph (a) the words “, river purification authority” shall cease to have effect and at the end there shall be added—

(c) SEPA.

;

• (c) in sub-paragraph (3), in the second column of the Table, in the fifth entry (relating to orders which authorise the execution of any works) for the words “every river purification authority and” there shall be substituted the words “ SEPA and every ”.

The Water Industry Act 1991

97

In section 3 of the Water Industry Act 1991 (general environmental and recreational duties) in subsection (4) (which imposes duties on the Director and relevant undertakers in relation to proposals relating to functions of the National Rivers Authority etc) for the words “the NRA”, in each place where they occur, there shall be substituted the words “ the Environment Agency ”.

98

In section 5 of that Act (codes of practice with respect to environmental duties) in subsection (4), in paragraph (a) (which requires consultation with the National Rivers Authority) for the words “the NRA” there shall be substituted the words “ the Environment Agency ”.

99

In section 40 of that Act (bulk supplies of water) in subsection (5) (which requires the Director to consult the National Rivers Authority before making an order) for the words “the NRA” there shall be substituted the words “ the Environment Agency ”.

100

In section 40A of that Act (variation and termination of bulk supply agreements) in subsection (3) (which requires the Director to consult the National Rivers authority before making an order) for the words “the NRA” there shall be substituted the words “ the Environment Agency ”.

101

• (1) In section 71 of that Act (waste from water resources) in subsection (6) (power of court to authorise the National Rivers Authority to take steps to execute an order) for the words “the NRA” there shall be substituted—

• (a) where it first occurs, the words “the Environment Agency”; and

• (b) where it next occurs, the words “the Agency”.

• (2) In subsection (7) (powers of entry etc of persons designated by the National Rivers Authority) for the words “the NRA” in each place where it occurs there shall be substituted the words “ the Environment Agency ”.

102

After section 93 of that Act (interpretation of Part III) there shall be inserted—

(93A) (1) It shall be the duty of every water undertaker to promote the efficient use of water by its customers. (2) The duty of a water undertaker under this section shall be enforceable under section 18 above— (a) by the Secretary of State; or (b) with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Director. (3) Nothing in this Part shall have effect to authorise or require a water undertaker to impose any requirement on any of its customers or potential customers. (93B) (1) The Director may require a water undertaker, in its performance of its duty under section 93A above, to— (a) take any such action; or (b) achieve any such overall standards of performance, as he may specify in the document imposing the requirement. (2) Where the Director, in the document imposing a requirement on a water undertaker under subsection (1) above, stipulates that any contravention of the requirement by the undertaker will be a breach of its duty under section 93A above, any contravention of that requirement by the undertaker shall be a breach of that duty. (3) Without prejudice to the generality of subsection (1) above, a requirement under that subsection may— (a) require a water undertaker to make available to its customers or potential customers such facilities as may be specified in the document imposing the requirement; (b) require a water undertaker to provide or make available to its customers or potential customers such information as may be specified in the document imposing the requirement, and may specify the form in which, the times at which or the frequency with which any such information is to be provided or made available. (4) In exercising his powers under this section in relation to any water undertaker the Director shall have regard to the extent to which water resources are available to that undertaker. (5) Before imposing any requirement on a water undertaker under subsection (1) above the Director shall consult that undertaker. (6) Nothing in this section authorises the Director to impose any requirement on a water undertaker which has or may have the effect of authorising or requiring that undertaker to impose any requirement on any of its customers or potential customers. (93C) (1) Where, under section 93B(1) above, the Director imposes any requirement on a water undertaker, the Director may arrange for that requirement to be publicised in any such manner as he may consider appropriate for the purpose of bringing it to the attention of that undertaker’s customers. (2) Without prejudice to the generality of subsection (1) above, the Director may arrange for such publicising of the requirement as is mentioned in that subsection by— (a) himself publicising the requirement or causing it to be publicised; or (b) directing the undertaker to inform or arrange to inform its customers of the requirement. (93D) (1) Where a water undertaker is subject to any requirement imposed under section 93B(1) above, the Director may arrange for there to be given to the customers of that undertaker at any such times or with such frequency, and in any such manner, as he may consider appropriate, such information about the level of performance achieved by the undertaker in relation to that requirement as appears to the Director to be expedient to be given to those customers. (2) Without prejudice to the generality of subsection (1) above, the Director may arrange for such giving of information as is mentioned in that subsection by— (a) himself disseminating the information or causing it to be disseminated; or (b) directing the undertaker to give or arrange to give the information to its customers. (3) At such times and in such form or manner as the Director may direct, a water undertaker shall provide the Director with such information as may be specified in the direction in connection with the undertaker’s performance in relation to any requirement imposed upon the undertaker under section 93B(1) above. (4) A water undertaker who fails without reasonable excuse to do anything required of him by virtue of subsection (3) above shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.

.

103

After section 101 of that Act (which provides for the determination of certain details in relation to requisitioned sewers) there shall be inserted—

(101A) (1) Without prejudice to section 98 above, it shall be the duty of a sewerage undertaker to provide a public sewer to be used for the drainage for domestic sewerage purposes of premises in a particular locality in its area if the conditions specified in subsection (2) below are satisfied. (2) The conditions mentioned in subsection (1) above are— (a) that the premises in question, or any of those premises, are premises on which there are buildings each of which, with the exception of any shed, glasshouse or other outbuilding appurtenant to a dwelling and not designed or occupied as living accommodation, is a building erected before, or whose erection was substantially completed by, 20th June 1995; (b) that the drains or sewers used for the drainage for domestic sewerage purposes of the premises in question do not, either directly or through an intermediate drain or sewer, connect with a public sewer; and (c) that the drainage of any of the premises in question in respect of which the condition specified in paragraph (a) above is satisfied is giving, or is likely to give, rise to such adverse effects to the environment or amenity that it is appropriate, having regard to any guidance issued under this section by the Secretary of State and all other relevant considerations, to provide a public sewer for the drainage for domestic sewerage purposes of the premises in question. (3) Without prejudice to the generality of subsection (2)(c) above, regard shall be had to the following considerations, so far as relevant, in determining whether it is appropriate for any sewer to be provided by virtue of this section— (a) the geology of the locality in question or of any other locality; (b) the number of premises, being premises on which there are buildings, which might reasonably be expected to be drained by means of that sewer; (c) the costs of providing that sewer; (d) the nature and extent of any adverse effects to the environment or amenity arising, or likely to arise, as a result of the premises or, as the case may be, the locality in question not being drained by means of a public sewer; and (e) the extent to which it is practicable for those effects to be overcome otherwise than by the provision (whether by virtue of this section or otherwise) of public sewers, and the costs of so overcoming those effects. (4) Guidance issued by the Secretary of State under this section may— (a) relate to how regard is to be had to the considerations mentioned in paragraphs (a) to (e) of subsection (3) above; (b) relate to any other matter which the Secretary of State considers may be a relevant consideration in any case and to how regard is to be had to any such matter; (c) set out considerations, other than those mentioned in paragraphs (a) to (e) of subsection (3) above, to which (so far as relevant) regard shall be had in determining whether it is appropriate for any sewer to be provided by virtue of this section; (d) relate to how regard is to be had to any such consideration as is mentioned in paragraph (c) above; (e) without prejudice to paragraphs (a) to (d) above, relate to how a sewerage undertaker is to discharge its functions under this section. (5) Before issuing guidance under this section the Secretary of State shall consult— (a) the Environment Agency; (b) the Director; and (c) such other bodies or persons as he considers appropriate; and the Secretary of State shall arrange for any guidance issued by him under this section to be published in such manner as he considers appropriate. (6) Subject to the following provisions of this section, the duty of a sewerage undertaker by virtue of subsection (1) above shall be enforceable under section 18 above— (a) by the Secretary of State; or (b) with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Director. (7) Any dispute between a sewerage undertaker and an owner or occupier of any premises in its area as to— (a) whether the undertaker is under a duty by virtue of subsection (1) above to provide a public sewer to be used for any such drainage of those premises as is mentioned in that subsection; (b) the domestic sewerage purposes for which any such sewer should be provided; or (c) the time by which any such duty of the undertaker should be performed, shall be determined by the Environment Agency, and may be referred to the Environment Agency for determination by either of the parties to the dispute. (8) The Environment Agency— (a) shall notify the parties of the reasons for its decision on any dispute referred to it under subsection (7) above; and (b) may make any such recommendations, or give any such guidance, relating to or in connection with the drainage of the premises or locality in question as it considers appropriate. (9) The decision of the Environment Agency on any dispute referred to it under subsection (7) above shall be final. (10) A sewerage undertaker shall only be taken to be in breach of its duty under subsection (1) above where, and to the extent that, it has accepted, or the Environment Agency has determined under this section, that it is under such a duty and where any time accepted by it, or determined by the Environment Agency under this section, as the time by which the duty is to that extent to be performed has passed.

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104

In section 110A of that Act (new connections with public sewers) in subsection (6) (which requires the Director to consult the National Rivers Authority before making an order) for the words “the NRA” there shall be substituted the words “ the Environment Agency ”.

105

• (1) Section 120 of that Act (application for the discharge of special category effluent) shall be amended in accordance with the following provisions of this paragraph.

• (2) In subsection (1) (sewerage undertakers to refer certain questions to the Secretary of State) for the words “the Secretary of State” there shall be substituted the words “ the Environment Agency ”.

• (3) In subsection (4) (undertaker not to give consent etc until Secretary of State gives notice of his determination of the questions) for the words “the Secretary of State” there shall be substituted the words “ the Environment Agency ”.

• (4) For subsections (7) and (8) (enforcement by Secretary of State) there shall be substituted—

(9) If a sewerage undertaker fails, within the period provided by subsection (2) above, to refer to the Environment Agency any question which he is required by subsection (1) above to refer to the Agency, the undertaker 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. (10) If the Environment Agency becomes aware of any such failure as is mentioned in subsection (9) above, the Agency may— (a) if a consent under this Chapter to make discharges of any special category effluent has been granted on the application in question, exercise its powers of review under section 127 or 131 below, notwithstanding anything in subsection (2) of the section in question; or (b) in any other case, proceed as if the reference required by this section had been made.

106

In section 123 of that Act (appeals with respect to the discharge of special category effluent) for the words “the Secretary of State” or “the Secretary of State’s”, wherever occurring, there shall be substituted respectively the words “ the Environment Agency ” or “ the Environment Agency’s ”.

107

In section 127 of that Act (review by the Secretary of State of consents relating to special category effluent) for the words “the Secretary of State” or “the Secretary of State’s”, wherever occurring, there shall be substituted respectively the words “ the Environment Agency ” or “ the Environment Agency’s ”.

108

• (1) Section 130 of that Act (reference to the Secretary of State of agreements relating to special category effluent) shall be amended in accordance with the following provisions of this paragraph.

• (2) For the words “the Secretary of State”, wherever occurring, there shall be substituted the words “ the Environment Agency ”.

• (3) For subsections (5) and (6) (enforcement by Secretary of State) there shall be substituted—

(7) If a sewerage undertaker fails, before giving any consent or entering into any agreement with respect to any such operations as are mentioned in paragraph (a) of subsection (1) above, to refer to the Environment Agency any question which he is required by that subsection to refer to the Agency, the undertaker 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. (8) If the Environment Agency becomes aware— (a) that a sewerage undertaker and the owner or occupier of any trade premises are proposing to enter into any such agreement as is mentioned in subsection (1) above, and (b) that the sewerage undertaker has not referred to the Agency any question which it is required to refer to the Agency by that subsection, the Agency may proceed as if the reference required by that subsection had been made. (9) If the Environment Agency becomes aware that any consent has been given or agreement entered into with respect to any such operations as are mentioned in paragraph (a) of subsection (1) above without the sewerage undertaker in question having referred to the Environment Agency any question which he is required by that subsection to refer to the Agency, the Agency may exercise its powers of review under section 127 above or, as the case may be, section 131 below, notwithstanding anything in subsection (2) of the section in question.

109

In section 131 of that Act (review by the Secretary of State of agreements relating to special category effluent) for the words “the Secretary of State” or “the Secretary of State’s”, wherever occurring, there shall be substituted respectively the words “ the Environment Agency ” or “ the Environment Agency’s ”.

110

• (1) Section 132 of that Act (powers and procedure on references and reviews) shall be amended in accordance with the following provisions of this paragraph.

• (2) For the words “the Secretary of State”, wherever occurring, there shall be substituted the words “ the Environment Agency ”.

• (3) In subsection (2)(b) of that section (duty of the Secretary of State to consider representations or objections duly made to him) for the words “him” and “he” there shall be substituted the word “ the Agency ”.

• (4) In subsection (6) of that section (section 121(1) and (2) not to restrict power to impose conditions under subsection (4)(b)) for the word “he” there shall be substituted the words “ the Agency ”.

• (5) Subsection (7) (powers of entry) shall cease to have effect.

111

In section 133 of that Act (effect of determination on reference or review) for subsection (4) (duties of sewerage undertaker to be enforceable under section 18 by the Secretary of State) there shall be substituted—

(5) A sewerage undertaker which fails to perform its duty under 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. (6) The Environment Agency may, for the purpose of securing compliance with the provisions of a notice under section 132 above, by serving notice on the sewerage undertaker in question and on the person specified in section 132(2)(a)(ii) above, vary or revoke— (a) any consent given under this Chapter to make discharges of any special category effluent, or (b) any agreement under section 129 above.

112

In section 134 of that Act (compensation in respect of determinations made for the protection of public health etc)—

• (a) for the words “the Secretary of State” or “the Secretary of State’s”, wherever occurring, there shall be substituted respectively the words “ the Environment Agency ” or “ the Environment Agency’s ”; and

• (b) in subsection (2)(b) for the word “him” there shall be substituted the words “ the Agency ”.

113

After section 135 there shall be inserted—

(135A) (1) For the purpose of the discharge of its functions under this Chapter, the Environment Agency may, by notice in writing served on any person, require that person to furnish such information specified in the notice as that Agency reasonably considers it needs, in such form and within such period following service of the notice, or at such time, as is so specified. (2) A person who— (a) fails, without reasonable excuse, to comply with a requirement imposed under subsection (1) above, or (b) in furnishing any information in compliance with such a requirement, makes any statement which he knows to be false or misleading in a material particular, or recklessly makes a statement which is false or misleading in a material particular, shall be guilty of an offence. (3) A person guilty of an offence under subsection (2) above shall be liable— (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both.

114

• (1) Section 142 of that Act (powers of undertakers to charge) shall be amended in accordance with the following provisions of this paragraph.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) After subsection (3) (restriction on charging by agreement for trade effluent functions) there shall be inserted—

(3A) The power of a sewerage undertaker to charge, by virtue of subsection (1) above, for any services provided in the course of carrying out its duty under section 101A(1) above shall be exercisable only by or in accordance with a charges scheme under section 143 below.

115

In section 143 of that Act (charges schemes) after subsection (3) (charges which may be imposed in certain cases) there shall be inserted—

(3A) A sewerage undertaker is under a duty to ensure that any charges scheme made by the undertaker, so far as having effect to recover the undertaker’s costs of providing a sewer by virtue of its duty under section 101A(1) above, causes those costs to be borne by the undertaker’s customers generally; and a sewerage undertaker’s duty under this subsection shall be enforceable under section 18 above— (a) by the Secretary of State; or (b) with the consent of or in accordance with a general authorisation given by the Secretary of State, by the Director.

116

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117

In section 161 of that Act (power to deal with foul water and pollution) in subsections (3) and (4) for the words “the NRA”, wherever occurring, there shall be substituted the words “ the Environment Agency ”.

118

In section 166 of that Act (consents for certain discharges under section 165) in subsection (1) (which requires the consent of the National Rivers Authority to certain discharges) for the words “the NRA” there shall be substituted the words “ the Environment Agency ”.

119

In section 184 of that Act (power of certain undertakers to alter public sewers etc) in subsection (1) for the words “NRA”, in each place where it occurs, there shall be substituted the words “ Environment Agency ”.

120

In section 202 of that Act (duties of undertakers to furnish the Secretary of State with information) in subsection (6) (which defines the expression “the other consolidation Acts”) for the words “the NRA” there shall be substituted the words “ the Environment Agency ”.

121

• (1) In section 206 of that Act (restriction on disclosure of information) in subsection (2) (information furnished under section 196 or 204) the words “196 or” shall cease to have effect.

• (2) In subsection (3)(a) of that section (exception for disclosure of information for purposes of functions under certain enactments)—

• (a) for the words “the NRA” there shall be substituted the words “ the Environment Agency, the Scottish Environment Protection Agency ”; and

• (b) for the words “or the Water Act 1989” there shall be substituted the words “ , the Water Act 1989, Part I or IIA of the Environmental Protection Act 1990 or the Environment Act 1995 ”.

• (3) In subsection (4), in paragraph (a) (which provides that nothing in subsection (1) shall limit the matters which may be included in reports made by specified bodies under specified enactments)—

• (a) for the words “the NRA” there shall be substituted the words “ the Environment Agency, the Scottish Environment Protection Agency ”; and

• (b) for the words “or of the Water Resources Act 1991” there shall be substituted the words “ , Part I or IIA of the Environmental Protection Act 1990, the Water Resources Act 1991 or the Environment Act 1995 ”.

122

In section 209 of that Act (civil liability of undertakers for escapes of water etc) in subsection (3) (exceptions for loss sustained by other public undertakers) for the words “the NRA” there shall be substituted the words “ the Environment Agency ”.

123

In section 215 of that Act (local inquiries) in subsection (3) (application of section 250(4) of the Local Government Act 1972 in relation to the National Rivers Authority) for the words “the NRA”, in each place where they occur, there shall be substituted the words “ the Environment Agency ”.

124

In section 217 of that Act (construction of provisions conferring powers by reference to undertakers’ functions) for the words “NRA”, wherever occurring, there shall be substituted the words “ Environment Agency ”.

125

In section 219 of that Act (general interpretation) in subsection (1)—

• (a) the definition of “the NRA” shall be omitted; and

• (b) subject to that, for the words “the NRA”, wherever occurring, there shall be substituted the words “ the Environment Agency ”.

126

In Schedule 11 to that Act (orders conferring compulsory works powers) in paragraph 1(3) (persons on whom copy notices are to be served) in paragraph (a), for the words “the NRA” there shall be substituted the words “ the Environment Agency ”.

127

In Schedule 13 to that Act (protective provisions in respect of certain undertakers) in paragraph 1, in sub-paragraphs (2) and (5)(a), for the words “the NRA”, wherever occurring, there shall be substituted the words “ the Environment Agency ”.

The Water Resources Act 1991

128

Subject to the other provisions of this Act, in the Water Resources Act 1991, for the word “Authority” or “Authority’s”, wherever occurring, other than in section 119(1), there shall be substituted respectively the word “ Agency ” or “ Agency’s ”.

129

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130

In section 15 of that Act (general duties with respect to the water industry), in subsection (2)(a) (provisions conferring powers in the exercise of which the Ministers are to take into account the duties imposed on the Agency by subsection (1)) after the words “by virtue of” there shall be inserted the words “ the 1995 Act, ”.

131

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132

In section 20 of that Act (water resources management schemes) in subsection (1) of that section (duty to enter into arrangements with water undertakers for the management or operation of certain waters etc) for the words “section 19(1) above” there shall be substituted the words “ section 6(2) of the 1995 Act ”.

133

• (1) In section 21 of that Act (minimum acceptable flows) in subsection (3), at the end of paragraph (f) (consultation with person authorised by a licence under Part I of the Electricity Act 1989 to generate electricity) there shall be added the words “ who has a right to abstract water from those waters ”.

• (2) In subsection (4)(b) of that section (which refers to certain enactments which are repealed, but whose effect is reproduced, by this Act) for the words “sections 2(2), 16 and 17 above” there shall be substituted the words “ sections 6(1), 7 and 8 of the 1995 Act ”.

134

In section 43 of that Act (appeals to the Secretary of State from decisions with respect to licences) after subsection (1) there shall be inserted—

(1A) This section is subject to section 114 of the 1995 Act (delegation or reference of appeals etc).

135

• (1) In section 50 of that Act, in subsection (1) (power to make regulations, in relation to cases to which section 49 applies, for conferring succession rights to abstraction licences where a person becomes the occupier of part of the relevant land) for the words “cases to which section 49 above applies” there shall be substituted the words “ cases in which the holder of a licence under this Chapter to abstract water (“the prior holder”) is the occupier of the whole or part of the land specified in the licence as the land on which water abstracted in pursuance of the licence is to be used (“the relevant land”) ”.

• (2) That section shall have effect, and be taken always to have had effect, as if it had originally been enacted with the amendment made by sub-paragraph (1) above.

136

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137

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138

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139

• (1) Section 73 of that Act (power to make ordinary and emergency drought orders) shall be amended in accordance with the following provisions of this paragraph.

• (2) In subsection (1) (power to make ordinary drought orders) for the words from the beginning to “then” there shall be substituted the words—

(1) If the Secretary of State is satisfied that, by reason of an exceptional shortage of rain, there exists or is threatened— (a) a serious deficiency of supplies of water in any area, or (b) such a deficiency in the flow or level of water in any inland waters as to pose a serious threat to any of the flora or fauna which are dependent on those waters, then,

.

• (3) In subsection (3) (power to make drought order not to be exercisable except where an application is made by the National Rivers Authority or a water undertaker)—

• (a) for the words “except where” there shall be substituted the word “unless”; and

• (b) at the beginning of paragraph (b) (water undertakers) there shall be inserted the words “except in the case of an ordinary drought order by virtue of subsection (1)(b) above,”.

140

After section 79 of that Act (compensation and charges where drought order made) there shall be inserted—

(79A) (1) If the Agency is satisfied that, by reason of an exceptional shortage of rain, a serious deficiency of supplies of water in any area exists or is threatened then, subject to the following provisions of this section, it may, upon the application of a water undertaker which supplies water to premises in that area, issue to that undertaker a drought permit making such provision authorised by this section as appears to the Agency to be expedient with a view to meeting the deficiency. (2) A drought permit may contain any of the following provisions, that is to say— (a) provision authorising the water undertaker to which it is issued to take water from any source specified in the permit subject to any conditions or restrictions so specified; (b) provision suspending or modifying, subject to any conditions specified in the permit, any restriction or obligation to which that undertaker is subject as respects the taking of water from any source. (3) A drought permit shall specify— (a) the day on which it comes into force; and (b) the period for which, subject to subsections (4) and (5) below, any authorisation given, or suspension or modification effected, by the permit is to have effect. (4) Subject to subsection (5) below, the period for which— (a) an authorisation given by a drought permit, or (b) a suspension or modification effected by such a permit, has effect shall expire before the end of the period of six months beginning with the day on which the permit comes into force. (5) At any time before the expiration of the period for which such an authorisation, suspension or modification has effect, the Agency may, by giving notice to the water undertaker to which the permit in question was issued, extend that period, but not so as to extend it beyond the end of the period of one year beginning with the day on which the permit came into force. (6) A drought permit which— (a) authorises the taking of water from a source from which water is supplied to an inland navigation; or (b) suspends or modifies— (i) a restriction as respects the taking of water from a source from which water is supplied to an inland navigation; or (ii) an obligation to discharge compensation water into a canal or into any river or stream which forms part of, or from which water is supplied to, an inland navigation, shall not be issued without the consent of every navigation authority exercising functions over any or all of the parts of the canal or inland navigation in question which are affected by the permit. (7) Schedule 8 to this Act shall have effect with respect to the procedure on an application for a drought permit as it has effect with respect to the procedure on an application for a drought order, but with the following modifications, that is to say— (a) with the substitution for any reference to a drought order of a reference to a drought permit; (b) with the substitution for any reference to the Secretary of State of a reference to the Agency; (c) with the omission of the reference to the Agency in the Table in paragraph 1; (d) with the insertion, in paragraph 1(3)(c), of a requirement that the notice in question shall specify the address at which any objections are to be made to the Agency; and (e) with the omission— (i) of paragraph 2(1)(a) and the word “either” immediately preceding it, and (ii) of paragraph 2(6). (8) For the purposes of sections 125 to 129 below any water authorised by a drought permit to be abstracted from a source of supply shall be treated as if it had been authorised to be so abstracted by a licence granted under Chapter II of this Part, whether the water undertaker to which the permit is issued is the holder of such a licence or not. (9) Section 79 above and Schedule 9 to this Act shall apply in relation to drought permits and their issue as they apply in relation to ordinary drought orders and their making. (10) A drought permit 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 provisions as the Agency considers appropriate. (11) In this section— - “compensation water” has the same meaning as in section 77 above; - “drought permit” means a drought permit under this section; - “inland navigation” has the same meaning as in section 77 above.

141

In section 80 of that Act (offences against drought orders)—

• (a) in subsection (1)(a) (taking or using water otherwise than in accordance with any condition or restriction imposed by or under a drought order) for the words “so imposed” there shall be substituted the words “imposed by or under any drought order or by any drought permit”;

• (b) in subsection (2)(a) (failure to construct or maintain measuring apparatus required by any drought order) after the words “by any drought order” there shall be inserted the words “or drought permit”; and

• (c) in subsection (2)(b) (failure to allow person authorised by or under any such order to inspect etc apparatus or records) after the words “by or under any such order” there shall be inserted the words “or by virtue of any such permit”.

142

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143

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144

In section 92 of that Act (requirements to take precautions against pollution) after subsection (2) (which includes provision for regulations to provide for appeals to the Secretary of State) there shall be added—

(3) This section is subject to section 114 of the 1995 Act (delegation or reference of appeals etc).

145

In section 96 of that Act (regulations with respect to consents required by virtue of section 93 etc, including provision with respect to appeals) after subsection (3) there shall be added—

(4) This section is subject to section 114 of the 1995 Act (delegation or reference of appeals etc).

146

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147

• (1) In section 110 of that Act (applications for consents and approvals under section 109) in subsection (1) (which confers power to charge an application fee of £50 or such other sum as may be specified by order made by the Ministers) for the words “specified by order made by the Ministers” there shall be substituted the word “prescribed”.

• (2) In subsection (4)(b) of that section (which provides for questions as to unreasonable withholding of any consent or approval to be referred to the Ministers or the Secretary of State if the parties cannot agree on an arbitrator) for the words “the Ministers” there shall be substituted the words “the Minister”.

• (3) After subsection (5) of that section there shall be inserted—

(6) In subsection (1) above “prescribed” means specified in, or determined in accordance with, an order made by the Ministers; and any such order may make different provision for different cases, including different provision in relation to different persons, circumstances or localities.

148

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149

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150

• (1) Section 118 of that Act (special duties with respect to flood defence revenue) shall be amended in accordance with the following provisions of this paragraph.

• (2) In subsection (1)(b) (such revenue to be disregarded in determining the amount of any surplus for the purposes of section 117(3)) for the words “section 117(3) above” there shall be substituted the words “section 44(4) of the 1995 Act”.

• (3) In subsection (2)(b) (flood defence revenue to include revenue raised by general drainage charges under sections 134 to 136) for the words “to 136” there shall be substituted the words “and 135”.

151

• (1) In section 119 of that Act (duties with respect to certain funds raised under local enactments) for subsection (1) (duty of the National Rivers Authority, in respect of funds created for fishery purposes under local enactments, not to use those funds except for the purposes for which they could have been used if the Water Resources Act 1963 had not been passed) there shall be substituted—

(1) Where the Agency holds any funds, or any interest in any funds, which immediately before the transfer date the National Rivers Authority, by virtue of this subsection as originally enacted, was not permitted to use except for particular purposes, those funds or that interest shall not be used except for the purposes for which they could be used by virtue of this subsection as originally enacted. (1A) For the purposes of subsection (1) above, “the transfer date” has the same meaning as in Part I of the 1995 Act.

• (2) In subsection (2) of that section (certain funds raised under local enactments to be disregarded in determining the amount of any surplus for the purposes of section 117(3)) for the words “section 117(3) above” there shall be substituted the words “section 44(3) of the 1995 Act”.

152

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153

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154

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155

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156

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157

In section 154 of that Act (compulsory purchase etc) in subsection (6), for the words “(including section 4 above) or otherwise” there shall be substituted the words “or otherwise (including section 37 of the 1995 Act (incidental general powers of the Agency))”.

158

In section 156 of that Act (acquisition of land etc for fisheries purposes) for the words “Without prejudice to section 4 above”, in each place where they occur, there shall be substituted the words “Without prejudice to section 37 of the 1995 Act (incidental general powers of the Agency)”.

159

In section 157 of that Act (restriction on disposals of compulsorily acquired land) for subsection (6) (meaning of “compulsorily acquired land”) there shall be substituted—

(6) In this section “compulsorily acquired land”, in relation to the Agency, means any land of the Agency which— (a) was acquired by the Agency compulsorily under the provisions of section 154 above or of an order under section 168 below; (b) was acquired by the Agency at a time when it was authorised under those provisions to acquire the land compulsorily; (c) being land which has been transferred to the Agency from the Authority by section 3 of the 1995 Act, was acquired by the Authority— (i) compulsorily, under the provisions of section 154 above or of an order under section 168 below or under the provisions of section 151 of the Water Act 1989 or of an order under section 155 of that Act; or (ii) at a time when it was authorised under those provisions to acquire the land compulsorily; (d) being land— (i) which has been so transferred, and (ii) which was transferred to the Authority in accordance with a scheme under Schedule 2 to the Water Act 1989, was acquired by a predecessor of the Authority compulsorily under so much of any enactment in force at any time before 1st September 1989 as conferred powers of compulsory acquisition; or (e) being land transferred as mentioned in sub-paragraphs (i) and (ii) of paragraph (d) above, was acquired by such a predecessor at a time when it was authorised to acquire the land by virtue of any such powers as are mentioned in that paragraph.

160

In section 158 of that Act (works agreements for water resources purposes) in subsection (1) (which is expressed to be without prejudice to the generality of the powers conferred by section 4) for the words “section 4 above” there shall be substituted the words “section 37 of the 1995 Act (incidental general powers of the Agency)”.

161

• (1) Section 161 of that Act (anti-pollution works and operations) shall be amended in accordance with the following provisions of this paragraph.

• (2) In subsection (1) (power, subject to subsection (2), to carry out works and operations etc) for the words “Subject to subsection (2) below,” there shall be substituted the words “Subject to subsections (1A) and (2) below,”.

• (3) After that subsection there shall be inserted—

(1A) Without prejudice to the power of the Agency to carry out investigations under subsection (1) above, the power conferred by that subsection to carry out works and operations shall only be exercisable in a case where— (a) the Agency considers it necessary to carry out forthwith any works or operations falling within paragraph (a) or (b) of that subsection; or (b) it appears to the Agency, after reasonable inquiry, that no person can be found on whom to serve a works notice under section 161A below.

162

After that section there shall be inserted—

(161A) (1) Subject to the following provisions of this section, where it appears to the Agency that any poisonous, noxious or polluting matter or any solid waste matter is likely to enter, or to be or to have been present in, any controlled waters, the Agency shall be entitled to serve a works notice on any person who, as the case may be,— (a) caused or knowingly permitted the matter in question to be present at the place from which it is likely, in the opinion of the Agency, to enter any controlled waters; or (b) caused or knowingly permitted the matter in question to be present in any controlled waters. (2) For the purposes of this section, a “works notice” is a notice requiring the person on whom it is served to carry out such of the following works or operations as may be specified in the notice, that is to say— (a) in a case where the matter in question appears likely to enter any controlled waters, works or operations for the purpose of preventing it from doing so; or (b) in a case where the matter appears to be or to have been present in any controlled waters, works or operations for the purpose— (i) of removing or disposing of the matter; (ii) of remedying or mitigating any pollution caused by its presence in the waters; or (iii) so far as it is reasonably practicable to do so, of restoring the waters, including any flora and fauna dependent on the aquatic environment of the waters, to their state immediately before the matter became present in the waters. (3) A works notice— (a) must specify the periods within which the person on whom it is served is required to do each of the things specified in the notice; and (b) is without prejudice to the powers of the Agency by virtue of section 161(1A)(a) above. (4) Before serving a works notice on any person, the Agency shall reasonably endeavour to consult that person concerning the works or operations which are to be specified in the notice. (5) The Secretary of State may by regulations make provision for or in connection with— (a) the form or content of works notices; (b) requirements for consultation, before the service of a works notice, with persons other than the person on whom that notice is to be served; (c) steps to be taken for the purposes of any consultation required under subsection (4) above or regulations made by virtue of paragraph (b) above; or (d) any other steps of a procedural nature which are to be taken in connection with, or in consequence of, the service of a works notice. (6) A works notice shall not be regarded as invalid, or as invalidly served, by reason only of any failure to comply with the requirements of subsection (4) above or of regulations made by virtue of paragraph (b) of subsection (5) above. (7) Nothing in subsection (1) above shall entitle the Agency to require the carrying out of any works or operations which would impede or prevent the making of any discharge in pursuance of a consent given under Chapter II of Part III of this Act. (8) No works notice shall be served on any person requiring him to carry out any works or operations in respect of water from an abandoned mine or an abandoned part of a mine which that person permitted to reach such a place as is mentioned in subsection (1)(a) above or to enter any controlled waters. (9) Subsection (8) 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. (10) Subsections (3B) and (3C) of section 89 above shall apply in relation to subsections (8) and (9) above as they apply in relation to subsections (3) and (3A) of that section. (11) Where the Agency— (a) carries out any such investigations as are mentioned in section 161(1) above, and (b) serves a works notice on a person in connection with the matter to which the investigations relate, it shall (unless the notice is quashed or withdrawn) be entitled to recover the costs or expenses reasonably incurred in carrying out those investigations from that person. (12) The Secretary of State may, if he thinks fit in relation to any person, give directions to the Agency as to whether or how it should exercise its powers under this section. (13) In this section— - “controlled waters” has the same meaning as in Part III of this Act; - “mine” has the same meaning as in the Mines and Quarries Act 1954. (161B) (1) A works notice may require a person to carry out works or operations in relation to any land or waters notwithstanding that he is not entitled to carry out those works or operations. (2) Any person whose consent is required before any works or operations required by a works notice may be carried out shall grant, or join in granting, such rights in relation to any land or waters as will enable the person on whom the works notice is served to comply with any requirements imposed by the works notice. (3) Before serving a works notice, the Agency shall reasonably endeavour to consult every person who appears to it— (a) to be the owner or occupier of any relevant land, and (b) to be a person who might be required by subsection (2) above to grant, or join in granting, any rights, concerning the rights which that person may be so required to grant. (4) A works notice shall not be regarded as invalid, or as invalidly served, by reason only of any failure to comply with the requirements of subsection (3) above. (5) A person who grants, or joins in granting, any rights pursuant to subsection (2) above shall be entitled, on making an application within such period as may be prescribed and in such manner as may be prescribed to such person as may be prescribed, to be paid by the person on whom the works notice in question is served compensation of such amount as may be determined in such manner as may be prescribed. (6) Without prejudice to the generality of the regulations that may be made by virtue of subsection (5) above, regulations by virtue of that subsection may make such provision in relation to compensation under this section as may be made by regulations by virtue of subsection (4) of section 35A of the Environmental Protection Act 1990 in relation to compensation under that section. (7) In this section— - “prescribed” means prescribed in regulations made by the Secretary of State; - “relevant land” means— 1. any land or waters in relation to which the works notice in question requires, or may require, works or operations to be carried out; or 2. any land adjoining or adjacent to that land or those waters; - “works notice” means a works notice under section 161A above. (161C) (1) A person on whom a works notice is served may, within the period of twenty-one days beginning with the day on which the notice is served, appeal against the notice to the Secretary of State. (2) On any appeal under this section the Secretary of State— (a) shall quash the notice, if he is satisfied that there is a material defect in the notice; but (b) subject to that, may confirm the notice, with or without modification, or quash it. (3) The Secretary of State may by regulations make provision with respect to— (a) the grounds on which appeals under this section may be made; or (b) the procedure on any such appeal. (4) Regulations under subsection (3) above may (among other things)— (a) include provisions comparable to those in section 290 of the Public Health Act 1936 (appeals against notices requiring the execution of works); (b) prescribe the cases in which a works notice is, or is not, to be suspended until the appeal is decided, or until some other stage in the proceedings; (c) prescribe the cases in which the decision on an appeal may in some respects be less favourable to the appellant than the works notice against which he is appealing; (d) prescribe the cases in which the appellant may claim that a works notice should have been served on some other person and prescribe the procedure to be followed in those cases; (e) make provision as respects— (i) the particulars to be included in the notice of appeal; (ii) the persons on whom notice of appeal is to be served and the particulars, if any, which are to accompany the notice; or (iii) the abandonment of an appeal. (5) In this section “works notice” means a works notice under section 161A above. (6) This section is subject to section 114 of the 1995 Act (delegation or reference of appeals). (161D) (1) If a person on whom the Agency serves a works notice fails to comply with any of the requirements of the notice, he shall be guilty of an offence. (2) A person who commits an offence under subsection (1) above shall be liable— (a) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding £20,000 or to both; (b) on conviction on indictment to imprisonment for a term not exceeding two years or to a fine or to both. (3) If a person on whom a works notice has been served fails to comply with any of the requirements of the notice, the Agency may do what that person was required to do and may recover from him any costs or expenses reasonably incurred by the Agency in doing it. (4) If the Agency is of the opinion that proceedings for an offence under subsection (1) above would afford an ineffectual remedy against a person who has failed to comply with the requirements of a works notice, the Agency may take proceedings in the High Court for the purpose of securing compliance with the notice. (5) In this section “works notice” means a works notice under section 161A above.

163

In section 162 of that Act (other powers to deal with foul water or pollution) in subsection (1) (which refers to section 161 of that Act) for the words “section 161” there shall be substituted the words “sections 161 to 161D”.

164

In section 166 of that Act (power to carry out works for purposes of flood warning system) in subsection (1) (which is expressed to be without prejudice to the Agency’s other powers by virtue of section 4) for the words “section 4 above” there shall be substituted the words “section 37 of the 1995 Act (incidental general powers of the Agency)”.

165

In section 169 of that Act (powers of entry for enforcement purposes) at the beginning of subsection (3) there shall be inserted the words “Subject to subsection (4) below,” and after that subsection there shall be added—

(4) The powers conferred by this section shall not have effect for the purposes of any of the Agency’s pollution control functions, within the meaning of section 108 of the 1995 Act.

166

In section 172 of that Act (powers of entry for other purposes) at the beginning of subsection (3) there shall be inserted the words “Subject to subsection (3A) below,” and after that subsection there shall be added—

(3A) The powers conferred by this section shall not have effect for the purposes of any of the Agency’s pollution control functions, within the meaning of section 108 of the 1995 Act.

167

In section 174 of that Act (impersonation of persons exercising powers of entry) in subsection (1) (which creates a summary offence punishable by a fine not exceeding level 4) for the words from “liable, on summary conviction,” onwards there shall be substituted the words

liable— (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both.

168

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169

• (1) Section 190 of that Act (pollution control register) shall be amended in accordance with the following provisions of this paragraph.

• (2) In subsection (1) (which requires a register to be kept containing prescribed particulars of the items there specified) after the words “prescribed particulars of” there shall be inserted the words “or relating to”.

• (3) Paragraph (d) of that subsection (which relates to certificates under paragraph 1(7) of Schedule 10) shall be omitted.

• (4) Paragraph (f) of that subsection, and the word “and” immediately preceding it, shall be omitted and at the end of that subsection there shall be added—

(g) applications made to the Agency for the variation of discharge consents; (h) enforcement notices served under section 90B above; (j) revocations, under paragraph 7 of Schedule 10 to this Act, of discharge consents; (k) appeals under section 91 above; (l) directions given by the Secretary of State in relation to the Agency’s functions under the water pollution provisions of this Act; (m) convictions, for offences under Part III of this Act, of persons who have the benefit of discharge consents; (n) information obtained or furnished in pursuance of conditions of discharge consents; (o) works notices under section 161A above; (p) appeals under section 161C above; (q) convictions for offences under section 161D above; (r) such other matters relating to the quality of water or the pollution of water as may be prescribed by the Secretary of State. (1A) Where information of any description is excluded from any register by virtue of section 191B below, a statement shall be entered in the register indicating the existence of information of that description.

• (5) In subsection (2) (registers to be available for inspection by, and facilities for obtaining copies of entries to be afforded to, the public) after paragraph (b) there shall be added the words— “ and, for the purposes of this subsection, places may be prescribed by the Secretary of State at which any such registers or facilities as are mentioned in paragraph (a) or (b) above are to be available or afforded to the public in pursuance of the paragraph in question. ”

• (6) After subsection (3) there shall be added—

(4) The Secretary of State may give to the Agency directions requiring the removal from any register maintained by it under this section of any specified information which is not prescribed for inclusion under subsection (1) above or which, by virtue of section 191A or 191B below, ought to have been excluded from the register. (5) In this section “discharge consent” has the same meaning as in section 91 above.

170

After section 191 of that Act (register for the purposes of works discharges) there shall be inserted—

(191A) (1) No information shall be included in a register kept or maintained by the Agency under any provision of this Act if and so long as, in the opinion of the Secretary of State, the inclusion in such a register of that information, or information of that description, would be contrary to the interests of national security. (2) The Secretary of State may, for the purpose of securing the exclusion from registers of information to which subsection (1) above applies, give to the Agency directions— (a) specifying information, or descriptions of information, to be excluded from their registers; or (b) specifying descriptions of information to be referred to the Secretary of State for his determination; and no information referred to the Secretary of State in pursuance of paragraph (b) above shall be included in any such register until the Secretary of State determines that it should be so included. (3) The Agency shall notify the Secretary of State of any information it excludes from a register in pursuance of directions under subsection (2) above. (4) A person may, as respects any information which appears to him to be information to which subsection (1) above may apply, give a notice to the Secretary of State specifying the information and indicating its apparent nature; and, if he does so— (a) he shall notify the Agency that he has done so; and (b) no information so notified to the Secretary of State shall be included in any such register until the Secretary of State has determined that it should be so included. (191B) (1) No information relating to the affairs of any individual or business shall, without the consent of that individual or the person for the time being carrying on that business, be included in a register kept or maintained by the Agency under any provision of this Act, if and so long as the information— (a) is, in relation to him, commercially confidential; and (b) is not required to be included in the register in pursuance of directions under subsection (7) below; but information is not commercially confidential for the purposes of this section unless it is determined under this section to be so by the Agency or, on appeal, by the Secretary of State. (2) Where information is furnished to the Agency for the purpose of— (a) an application for a discharge consent or for the variation of a discharge consent, (b) complying with any condition of a discharge consent, or (c) complying with a notice under section 202 below, then, if the person furnishing it applies to the Agency to have the information excluded from any register kept or maintained by the Agency under any provision of this Act, on the ground that it is commercially confidential (as regards himself or another person), the Agency shall determine whether the information is or is not commercially confidential. (3) A determination under subsection (2) above must be made within the period of fourteen days beginning with the date of the application and if the Agency fails to make a determination within that period it shall be treated as having determined that the information is commercially confidential. (4) Where it appears to the Agency that any information (other than information furnished in circumstances within subsection (2) above) which has been obtained by the Agency under or by virtue of any provision of any enactment might be commercially confidential, the Agency shall— (a) give to the person to whom or whose business it relates notice that that information is required to be included in a register kept or maintained by the Agency under any provision of this Act, unless excluded under this section; and (b) give him a reasonable opportunity— (i) of objecting to the inclusion of the information on the ground that it is commercially confidential; and (ii) of making representations to the Agency for the purpose of justifying any such objection; and, if any representations are made, the Agency shall, having taken the representations into account, determine whether the information is or is not commercially confidential. (5) Where, under subsection (2) or (4) above, the Agency determines that information is not commercially confidential— (a) the information shall not be entered on the register until the end of the period of twenty-one days beginning with the date on which the determination is notified to the person concerned; and (b) that person may appeal to the Secretary of State against the decision; and, where an appeal is brought in respect of any information, the information shall not be entered on the register until the end of the period of seven days following the day on which the appeal is finally determined or withdrawn. (6) Subsections (2A), (2C) and (2K) of section 91 above shall apply in relation to appeals under subsection (5) above; but— (a) subsection (2C) of that section shall have effect for the purposes of this subsection with the substitution for the words from “(which may” onwards of the words “(which must be held in private)”; and (b) subsection (5) above is subject to section 114 of the 1995 Act (delegation or reference of appeals etc). (7) The Secretary of State may give to the Agency directions as to specified information, or descriptions of information, which the public interest requires to be included in registers kept or maintained by the Agency under any provision of this Act notwithstanding that the information may be commercially confidential. (8) Information excluded from a register shall be treated as ceasing to be commercially confidential for the purposes of this section at the expiry of the period of four years beginning with the date of the determination by virtue of which it was excluded; but the person who furnished it may apply to the Agency for the information to remain excluded from the register on the ground that it is still commercially confidential and the Agency shall determine whether or not that is the case. (9) Subsections (5) and (6) above shall apply in relation to a determination under subsection (8) above as they apply in relation to a determination under subsection (2) or (4) above. (10) The Secretary of State may by regulations substitute (whether in all cases or in such classes or descriptions of case as may be specified in the regulations) for the period for the time being specified in subsection (3) above such other period as he considers appropriate. (11) Information is, for the purposes of any determination under this section, commercially confidential, in relation to any individual or person, if its being contained in the register would prejudice to an unreasonable degree the commercial interests of that individual or person. (12) In this section “discharge consent” has the same meaning as in section 91 above.

171

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172

• (1) In section 202 of that Act (information and assistance required in connection with the control of pollution) in subsection (4) (which creates a summary offence punishable by a fine not exceeding level 5 on the standard scale) for the words from “liable, on summary conviction,” onwards there shall be substituted the words

liable— (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding two years, or to both.

• (2) Subsection (5) of that section (which is superseded in consequence of the amendment made by sub-paragraph (1) above) shall cease to have effect.

173

• (1) Section 204 of that Act (restriction on disclosure of information with respect to any particular business) shall be amended in accordance with the following provisions of this paragraph.

• (2) In subsection (2)(a) (exception for disclosure of information for purposes of functions under certain enactments)—

• (a) for the words “the Authority” there shall be substituted the words “the Agency, the Scottish Environment Protection Agency”; and

• (b) for the words “or the Water Act 1989” there shall be substituted the words “, the Water Act 1989, Part I or IIA of the Environmental Protection Act 1990 or the 1995 Act”.

• (3) In subsection (3), in paragraph (a) (which provides that nothing in subsection (1) shall limit the matters which may be included in reports made by specified bodies under specified enactments)—

• (a) after sub-paragraph (i), there shall be inserted—

(ia) the Scottish Environment Protection Agency;

; and

• (b) for the words “or that Act of 1991” there shall be substituted the words “, Part I or IIA of the Environmental Protection Act 1990, that Act of 1991 or the 1995 Act”.

• (4) In paragraph (b) of that subsection, after the words “that Act” there shall be inserted the words “of 1991”.

174

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175