SCHEDULE 1Indicative list of the main pollutants
1
Organohalogen compounds and substances which may form such compounds in the aquatic environment.
2
Organophosphorous compounds.
3
Organotin compounds.
4
Substances and preparations, or the breakdown products of such, which have been proved to possess carcinogenic or mutagenic properties or properties which may affect steroidogenic, thyroid, reproduction or other endocrine-related functions 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 protection 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 biochemical oxygen demand (BOD), and chemical oxygen demand (COD) etc.).
SCHEDULE 2Hazardous Substances
1
SEPA must identify—
a
substances or groups of substances which are toxic, persistent and liable to bio-accumulate, and other substances or groups of substances which give rise to an equivalent level of concern; and
b
substances or groups of substances which are entering, or liable to enter groundwater.
2
In identifying the substances referred to in paragraph 1, SEPA must take particular account of hazardous substances belonging to the families or groups of pollutants referred to in paragraphs 1 to 6 of Schedule 1 as well as substances belonging to the families or groups of pollutants referred to in paragraphs 7 to 9 of that Schedule, if those are considered to be hazardous.
3
SEPA must publish and maintain a list of the substances identified in accordance with paragraph 1.
4
The list must be published in a manner SEPA considers appropriate to bring it to the notice of persons affected by, likely to be affected by, or interested in the identified substances and SEPA must make copies of the list and a consolidated list available to the public free of charge.
SCHEDULE 3General binding rules
PART 1
Sch. 3 Pt. 1 entry 3 substituted (1.1.2018) by The Water Environment (Miscellaneous) (Scotland) Regulations 2017 (S.S.I. 2017/389), regs. 1, 3(a)
Words in sch. 3 Pt. 1 entry 5 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(a)(i)
Words in sch. 3 Pt. 1 entry 5 inserted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(a)(ii)
Word in sch. 3 Pt. 1 entry 6 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(b)
Word in sch. 3 Pt. 1 entry 8 inserted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(c)(i)
Words in sch. 3 Pt. 1 entry 8 inserted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(c)(ii)
Sch. 3 Pt. 1 entries 9-12 substituted (1.1.2018) by The Water Environment (Miscellaneous) (Scotland) Regulations 2017 (S.S.I. 2017/389), regs. 1, 3(b)
Word in sch. 3 Pt. 1 entry 9 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(d)
Sch. 3 Pt. 1 entries 10A-10D substituted for entry 10 (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(e)
Word in sch. 3 Pt. 1 entry 11 inserted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(f)(i)
Word in sch. 3 Pt. 1 entry 11 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(f)(ii)
Words in sch. 3 Pt. 1 entry 13 substituted (1.1.2018) by The Water Environment (Miscellaneous) (Scotland) Regulations 2017 (S.S.I. 2017/389), regs. 1, 3(c)
Word in sch. 3 Pt. 1 entry 14 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(g)
Words in sch. 3 Pt. 1 entry 15 deleted (1.1.2018) by The Water Environment (Miscellaneous) (Scotland) Regulations 2017 (S.S.I. 2017/389), regs. 1, 3(d)(i)
Words in sch. 3 Pt. 1 entry 15 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(h)(i)
Word in sch. 3 Pt. 1 entry 15 omitted (1.1.2022) by virtue of The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(h)(ii)
Words in sch. 3 Pt. 1 entry 15 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(h)(iii)
Words in sch. 3 Pt. 1 entry 15 inserted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(h)(iv)
Sch. 3 Pt. 1 entries 17-20 substituted (1.1.2018) by The Water Environment (Miscellaneous) (Scotland) Regulations 2017 (S.S.I. 2017/389), regs. 1, 3(e)
Words in sch. 3 Pt. 1 entry 18 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(i)
Words in sch. 3 Pt. 1 entry 18 omitted (1.1.2022) by virtue of The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(ii)(aa)
Words in sch. 3 Pt. 1 entry 18 omitted (1.1.2022) by virtue of The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(ii)(bb)
Word in sch. 3 Pt. 1 entry 18 omitted (1.1.2022) by virtue of The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(ii)(cc)
Words in sch. 3 Pt. 1 entry 18 inserted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(ii)(dd)
Words in sch. 3 Pt. 1 entry 18 inserted (1.1.2023) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(3), 3(4)(j) (with reg. 4)
Words in sch. 3 Pt. 1 entry 21 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(k)
Words in sch. 3 Pt. 1 entry 22 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(l)
sch. 3 Pt. 1 entries 23, 24 substituted (1.1.2018) by The Water Environment (Miscellaneous) (Scotland) Regulations 2017 (S.S.I. 2017/389), regs. 1, 3(f)
Words in sch. 3 Pt. 1 entry 25 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(m)(i)
Words in sch. 3 Pt. 1 entry 25 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(m)(ii)
Words in sch. 3 Pt. 1 entry 25 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(m)(iii)
Words in sch. 3 Pt. 1 entry 25 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(m)(iv)
Words in sch. 3 Pt. 1 entry 27 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(n)
Words in sch. 3 Pt. 1 entry 28 omitted (1.1.2022) by virtue of The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(o)(i)(aa)
Words in sch. 3 Pt. 1 entry 28 substituted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(o)(i)(bb)
Words in sch. 3 Pt. 1 entry 28 inserted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(o)(ii)
Words in sch. 3 Pt. 1 entry 28 inserted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(o)(iii)
Sch. 3 Pt. 1 entries 29-34 inserted (1.1.2022) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2021 (S.S.I. 2021/412), regs. 1(2), 3(4)(p) (with regs. 5-7)
F54Column 1 Activity | Column 2 Rules | |
---|---|---|
1. The operation of any weir that—
| The weir must not impede the free passage of salmon and sea trout during periods within which, in the absence of the weir, the flow of the river would be at a level expected to enable migration. | |
2. The abstraction of less than 10 m³ of water in any one day. |
| |
F173. The construction, extension or operation of any well, borehole or other works by which water may be abstracted, if such works are—
|
| |
4. The abstraction from a borehole, and any subsequent discharge of the abstracted water, if the total volume of water abstracted is less than 150 m³ in any period of one year and the purpose of the abstraction is either—
|
| |
5. The dredging of a river, burn or ditch that—
|
| |
6. The construction and maintenance—
|
| |
7. The laying of a pipeline or cable by boring beneath the bed and banks of a river, burn or ditch. |
| |
8. Works to control the erosion of a bank of a river, burn or ditch by revetment. |
| |
| ||
F189. Operating any vehicle, plant or other equipment in or near any surface water or wetland for the purpose of undertaking any other activity specified in this schedule or for the purpose of maintaining an existing man-made structure in or near any surface water or wetland. |
| |
F3310A. The discharge of water run-off from a surface water drainage system to the water environment from buildings, roads other than waterbound roads, yards, or any other built development constructed before 1 April 2007, with the exception of run-off from any motorway or trunk road where—
|
| |
10B. The discharge of water run-off from a surface water drainage system to the water environment from buildings, roads other than waterbound roads, yards, or any other built development constructed on or after 1 April 2007, with the exception of run-off from—
|
| |
10C. The discharge of water run-off from a quarry or borrow pit constructed on or after 1 January 2022. |
| |
10D. The discharge of water run-off from a construction site to the water environment where the site, including any constructed access tracks, does not—
|
| |
11. Discharge into a surface water drainage system. |
| |
12. The removal of sediment or any other matter that may have been deposited on the bed of a river, burn or ditch in the area of impounded water upstream of a weir the operation of which is authorised under these Regulations and the return of any sediment that comprises largely or wholly gravel or other coarse sediment to the river, burn or ditch from which it was removed. |
| |
| ||
13. For the purpose of ensuring the proper functioning of a closed culvert, abstraction or discharge pipe, the removal of accumulations of sediment or other matter from—
|
| |
and, if desired, any subsequent return of the removed sediment to the river, burn or ditch from which it was removed. |
| |
14. The placement of one or more boulders in a river or burn. |
| |
| ||
15. The temporary abstraction of groundwater at—
|
| |
by means of— | ||
| ||
and, if desired, the subsequent discharge of the abstracted groundwater to the water environment. | ||
| ||
16. The direct discharge of pollutants into groundwater as a result of construction or maintenance works in or on the ground which come into contact with groundwater. |
| |
F4917. The abstraction and subsequent return of groundwater for the purpose of extracting geothermal energy from the abstracted water or for the purpose of transferring heat to geological formations as part of a cooling system. |
| |
18.
|
| |
| ||
19. Keeping of livestock. |
| |
20. Cultivation of land. |
| |
| ||
21. Without prejudice to the operation of F5activities 10A, 10B, 10C and 10D, and the rules related to them, the discharge of water run-off via a surface water drainage system to the water environment as a result of rural land activities. |
| |
F5222. The discharge of surface water from waterbound roads and tracks to the water environment, including during the construction and maintenance of such roads and tracks. |
| |
F3023. The storage and application of pesticides that are plant protection products. |
| |
| ||
| ||
24. Operating sheep dipping facilities; and operating sheep handling facilities where:
|
| |
| ||
| ||
F3125. The placement of trees or parts of trees in any river, burn or ditch to protect eroding banks. |
| |
26. The storage of oil in a portable container with a capacity of less than 200 litres. | The container must be of sufficient strength and structural integrity so as to ensure that it is unlikely to burst or leak in its ordinary use. | |
27. The storage of oil on premises used F1as a private dwelling (except where the premises is a vehicle or vessel), where the oil is–
|
| |
28. The storage of oil on premises other than:
|
| |
F4029. The making and storage of silage in bales or bulk bags. |
| |
30. The treatment of silage effluent which consists mainly of rainwater by draining it from a silo through a constructed farm wetland. | Silage effluent which consists mainly of rainwater may be drained through a constructed farm wetland only if—
| |
31. The making and storage of silage other than in bales or bulk bags. |
| |
32. The storage of slurry. |
| |
33. The treatment of slurry which consists mainly of rainwater and washings by draining through a constructed farm wetland. |
| |
34. Storage of liquid digestate unless the storage is regulated by—
|
|
PART 2
In this Schedule—
“application” means the spreading, spraying, incorporating or injecting into or onto land;
F47“bed width” means the straight line distance that is between the opposite bank toes of a river burn or ditch, and which spans the bed of the river, burn or ditch, including any exposed bars and vegetated islands,
F28“buffer zone” means an area of land, where no storage or application of fertiliser or pesticide takes place, which intercepts (or would intercept) run-off from the storage or application of fertiliser or pesticide to prevent it from entering the water environment;
“channel width” means the straight line distance that is between opposite bank tops of a river, burn or ditch and which spans the bed of a river, burn or ditch, including any exposed bars and vegetated islands;
F47“constructed farm wetland” means a series of ponds for the treatment of slurry or silage effluent consisting mainly of rainwater, which have been constructed in such a manner that any discharge from the ponds does not pollute the water environment,
F36“container” means a single or double skinned fixed tank, a drum, a mobile bowser or (even if not connected to fixed pipe or fixed pipework) an intermediate bulk container;
“crop” includes any plant grown for a commercial purpose;
“cultivation” includes the preparation of land prior to planting, and the harvesting of any crop;
F12“dewatered” in relation to digestate or sewage sludge means digestate or sewage sludge which—
- a
has had liquid removed from it so that it consists of at least 20% dry material; and
- b
is capable of being stacked in a free standing heap without slumping and without liquid draining from the heap;
- a
“ditch” means an open channel which collects and conveys drainage water from surface or subsurface drainage to the wider surface water environment;
F47“domestic sewage” has the same meaning as in section 59 of the Sewerage (Scotland) Act 1968,
F47“draff” means the residue of grain after fermentation of the grain in a brewing or distilling process,
F47“draw off pipe” means a pipe used to withdraw oil from a container,
F74“drum” means an oil drum or similar container used for storing oil;
“eroding bank” means any bank of a river, ditch or burn which is being eroded by the action of the river, ditch or burn;
F47“farm” means land occupied as a unit for agricultural purposes,
“farm yard manure” means a mixture of bedding material and animal excreta in solid form arising from the housing of livestock (excepting such arising from the keeping of birds for the production of food) F15and includes digestate fibrous residue;
“fertiliser” means any substance containing nutrients which is utilised on land to enhance plant growth, but excludes forestry brash;
F47“fill pipe” means a pipe used to deliver oil into a container,
F32“fixed tank” includes an intermediate bulk container which is connected to fixed pipework;
F47“forage crop” means any crop grown as food for livestock or for use in energy production,
“forest” means land of an area of more than 0.5 hectares—
- a
with a tree canopy cover of more than 20 percent;
- b
which is planted with trees, which trees collectively have the capacity to provide a tree canopy cover of more than 20 percent; or
- c
which meets all of the following criteria:
- i
it was used in the last 5 years as land described in paragraph (a);
- ii
it is to remain fallow of trees for a maximum of 4 consecutive years; and
- iii
when replanted with trees it will be replanted as land described in paragraph (b);
- i
- a
“forestry operations” means operations carried out on land with a tree canopy cover of more than 10 per cent over an area of more than 0.5 hectares;
F47“housed” means kept permanently or overwintered, indoors or outside, on a collection based slurry system,
F47“impermeable sheet material” means—
- a
synthetic rubbers, EPDM (ethylene propylene diene monomer rubber) and butyl,
- b
plastics, including polyvinyl chloride, low density polyethylene and high density polyethylene, and
- c
reinforced geomembranes,
- a
F26“invasive species of plant outwith its native range” has the same meaning as in the Wildlife and Countryside Act 1981;
F47“liquid digestate” means—
- a
whole digestate,
- b
the liquid fraction, or
- c
any run-off from the storage of fibrous residue,
resulting from an anaerobic digestion process of a consistency that allows it to be pumped or discharged by gravity at any stage in the handling process,
- a
F47“liquid digestate storage system” means—
- a
a liquid digestate tank,
- b
any feedstock tank used in connection with the liquid digestate tank, and
- c
any channels and pipes used in connection with the liquid digestate tank or feedstock tank,
- a
F47“liquid digestate tank” includes a lagoon or tower used for the storage of liquid digestate,
F47“livestock” means any animal kept for use or profit as part of a commercial enterprise,
“minor bridge” means a bridge having no part of its structure within the channel of a river, burn or ditch and constructed for the purpose of supporting a footpath, cycle route or single track road;
“moling” means a cultivation method if an implement is used to open a conduit within the soil along which water may flow;
F75“oil” means any kind of oil other than solid products such as uncut bitumen and includes fuel oil, waste oil, biofuel mixtures, vegetable oil, plant oil, lubricant oil and hydraulic oil;
“pesticide” has the same meaning as in section 16 of the Food and Environment Protection Act 1985 (control of pesticides etc.) M1;
F57“plant protection products” means products, in the form in which they are supplied to the user, consisting of, or containing, active substances, safeners or synergists, and intended for one of the following uses:
- i
protecting plants or plant products against all harmful organisms or preventing the action of such organisms, unless the main purpose of these products is considered to be for reasons of hygiene rather than for the protection of plants or plant products;
- ii
influencing the life processes of plants, such as substances influencing their growth, other than as a nutrient;
- iii
preserving plant products;
- iv
destroying undesired plants or parts of plants, except algae unless the products are applied on soil or water to protect plants; or
- v
checking or preventing undesired growth of plants, except algae unless the products are applied on soil or water to protect plants;
- i
F47“precision equipment” means equipment capable of low emission, accurate application techniques including a dribble bar or band spreader, trailing hose, trailing shoe or direct injection,
F47“private dwelling” means any part of a building used or intended to be used as a dwelling,
F47“radioactive substance” has the same meaning as in paragraph 4 of schedule 8 of the Environmental Authorisations (Scotland) Regulations 2018,
F47“reception pit” means a pit used for the collection of slurry before it is transferred into a slurry storage tank or for the collection of slurry discharged from such a tank,
“revetment” means a modification to a bank of a river, burn or ditch that increases the resistance of the bank to lateral erosion;
“rip rap” means irregular shaped stones placed along a bank of a river, burn or ditch for the purpose of increasing the resistance of the bank to erosion;
“rural land use activities” means agricultural, forestry or leisure activity;
F27“secondary containment system” means a drip tray, an area surrounded by a bund or catchpit, or any other system for preventing oil which is no longer in its container from escaping from the place where it is stored;
“sewage” has the same meaning as in section 59 of the Sewerage (Scotland) Act 1968 (interpretation) M2;
F47“silage” means any forage crop (including draff) which is being, or has been, conserved by fermentation or preservation (including the use of additives), or both,
F47“silage effluent” means—
- a
effluent produced from any forage crop which is being made or has been made, into silage,
- b
a mixture consisting wholly of or containing such effluent, rainwater or groundwater emanating from a silo, silage effluent collection system or drain,
- a
F47“silo” means any structure used for making or storing silage,
F47“slurry” includes—
- a
excreta, including any liquid fraction, produced by livestock whilst in a yard or building (including woodchip corrals), and
- b
a mixture consisting wholly of or containing such excreta, bedding, feed residues, rainwater and washings from a building or yard used by livestock, dungsteads or middens, high level slatted buildings and weeping wall structures or any combination of these, provided such excreta is present,
- a
F47“slurry storage system” means—
- a
a slurry storage tank,
- b
any reception pit and any effluent tank used in connection with the slurry storage tank, and
- c
any channels and pipes used in connection with the slurry storage tank, any reception pit or any effluent tank,
- a
F47“slurry storage tank” includes a lagoon, pit (other than a reception pit) or tower used for the storage of slurry,
“SUD system” has the same meaning as in the Sewerage (Scotland) Act 1968;
“surface water drainage system” means a system, such as a SUD system that is used to collect and drain water run off from one or more premises and transport it to, and discharge it into, the water environment, and may include, among other things, any surface water sewers and associated inlets, outfalls, gullies, manholes, oil interceptors, silt traps, and attenuation, settlement and treatment facilities;
“temporary bridge” means any bridge which will be removed within a period of 12 months beginning with the date on which its construction commences;
“trade effluent” has the same meaning as in section 59 of the Sewerage (Scotland) Act 1968;
F67“trees or parts of trees” includes any root wads, brash, stakes made of live willow and willow spiling but does not include timber products or wood prepared for use in building or carpentry;
F47“trunk road” has the same meaning as in section 151 of the Roads (Scotland) Act 1984;
“uncultivated land” means land which has not been ploughed, rotovated or improved by management practices, but excludes land mounded for the purpose of planting riparian woodland);
“water for human consumption” means water that may be ingested by humans, used in the preparation of food or drink, or used in the cleaning of materials involved in the storage or consumption of food or drink;
F44“water run-off” means any water from rainfall or any meltwater from ice or snow flowing over or horizontally through the surface of the ground and any matter picked up by that water as it does so;
“waterbound road” means a road F56or track constructed of coarse stone and fine aggregate to form a tightly bound semi-impervious surface;F21...
“waterlogged” means soil which is at water retaining capacity, except in a forest where it means where water is visible on the soil surface.
F45“well” includes a permeable underground collection tank; and
“willow spiling” means live willow rods woven between live willow uprights driven into the bank or bed of a watercourse.
PART 3F25...
Sch. 3 Pt. 3 omitted (31.12.2020) by virtue of The Environment (EU Exit) (Scotland) (Amendment etc.) Regulations 2019 (S.S.I. 2019/26), regs. 1, 3(3); 2020 c. 1, Sch. 5 para. 1(1)
F25
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F25
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SCHEDULE 4Relevant legislation
PART 1
These Regulations
The Act
F65The Water Framework Directive
F4...
The Groundwater Directive F58...
The Priority Substances Directive
F73The Water Environment (River Basin Management Planning: Further Provision) (Scotland) Regulations 2013
F50The Water Environment (Shellfish Water Protected Areas: Environmental Objectives etc.) (Scotland) Regulations 2013
The Water Environment (Water Framework Directive) (Northumbria River Basin District) Regulations 2003 M3
The Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004 M4
PART 2
Part 2 of the Nature Conservation (Scotland) Act 2004 M5
The Conservation (Natural Habitats &c) Regulations 1994 M6
The Urban Waste Water Treatment (Scotland) Regulations 1994 M7
F76...
F22...
F20...
F20...
F24...
The Bathing Waters (Scotland) Regulations 2008 M8
F69...
F7...
SCHEDULE 5Charging Scheme
1
In the case of an authorisation under these Regulations, SEPA may require the payment to it of such charges as it may from time to time provide for in a charging scheme made in accordance with this Schedule.
2
Charges may be made in respect of:
a
the grant or imposition of an authorisation under regulations 7, 8 or 10;
b
the variation of any authorisation under regulations 18, 23 or 24;
c
the subsistence of an authorisation;
d
the transfer of an authorisation to another person, under regulation 25;
e
the surrender of an authorisation under regulation 27;
f
the determination that information is confidential under regulation 39.
3
A charging scheme may impose:
a
a single charge in respect of the whole of any authorisation;
b
separate charges in respect of different parts of any such authorisation;
c
both such a single charge and such separate charges.
4
A charging scheme may provide for charges as are reasonable or necessary to meet the requirements of paragraph 6, and may in particular provide for different charges to be payable according to:
a
the description of the authorisation in question;
b
the controlled activity in question;
c
the scale on which the controlled activity is carried on;
d
the description or amount of any substance to which the controlled activity in question relates;
e
the number of different controlled activities carried on by the same person.
5
A charging scheme:
a
must specify, in relation to any charge prescribed by the scheme, the description of the person who is liable to pay the charge;
b
may provide that it must be a condition of an authorisation that any charge prescribed is paid in accordance with the scheme;
c
may, if appropriate, provide incentives to secure efficient and sustainable water use.
6
In making a charging scheme SEPA must secure that the amounts recovered by way of charges prescribed by the charging scheme are, together with any grants paid to SEPA under section 47 of the Environment Act 1995 M9 in respect of the functions under—
a
the Act;
b
the Water Environment (Water Framework Directive) (Northumbria River Basin District Regulations 2003 M10;
c
the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004 M11; and
d
these Regulations,
the amounts which, taking one year with another need to be recovered by SEPA to meet the costs and expenses which it incurs in carrying out, or having others carry out, those functions.
7
Without prejudice to paragraph 5(b), if it appears to SEPA that any charges due and payable to it in respect of an authorisation have not been paid, it may suspend or revoke the authorisation (in whole or in part).
8
A charging scheme may:
a
make different provision for different cases, including different provision in relation to different persons, circumstances or localities;
b
provide for the times at which and the manner in which, the charges prescribed by the scheme are to be paid;
c
revoke or amend any previous charging scheme;
d
contain incidental, consequential or transitional provision for the purposes of the scheme.
9
SEPA must not make a charging scheme unless the provisions of the scheme are approved by the Scottish Ministers.
10
Before submitting a proposed charging scheme to the Scottish Ministers for their approval under paragraph 9, SEPA must, in such manner as it considers appropriate for bringing it to the attention of persons affected or likely to be affected by, or having an interest in, the scheme, publish a notice—
a
setting out its proposals; and
b
specifying the period within which representations or objections with respect to its proposals may be made to the Scottish Ministers.
11
If any proposed charging scheme is submitted to the Scottish Ministers for approval under paragraph 9, the Scottish Ministers must, in determining whether or not to approve the scheme or to approve it subject to modifications—
a
consider any representations or objections duly made to them and not withdrawn; and
b
have regard to the matters specified in this Schedule.
12
It is the duty of SEPA to take such steps as it considers appropriate for bringing the provisions of the charging scheme made by it which is for the time being in force to the attention of persons affected or likely to be affected by, or having an interest in the provisions.
SCHEDULE 6Enforcement and other powers
PART 1Powers
1
To enter at any reasonable time (or, in an emergency, at any time) any premises which that person has reason to believe it is necessary to enter.
2
On entering any premises by virtue of paragraph 1, to take—
a
any other person duly authorised by SEPA and, if the authorised person has reasonable cause to apprehend any serious obstruction in the execution of that person's duty, a constable; and
b
any equipment or materials required for any purpose for which the power of entry is being exercised.
3
To examine and investigate as may in the circumstances be necessary.
4
As regards any premises which that person has power to enter, to direct that those premises or any part of them, or anything in them, must be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph 3.
5
To take such measurements and photographs and make such recordings as that person considers necessary for the purpose of any examination or investigation under paragraph 3.
6
To obtain and to take samples, or cause samples to be taken, of any articles or substances found in or on any premises which that person has power to enter, and of the air, water or land in, on, or in the vicinity of, the premises.
7
To monitor—
a
the water environment or any part of it; or
b
the carrying on of controlled activities.
8
To take steps for the measurement and recording of precipitation.
9
To install and maintain gauges, or other apparatus and works connected therewith, for any of the purposes mentioned in paragraphs 7 and 8.
10
To take such steps as may be necessary in order to obtain any information required for any of the purposes mentioned in paragraphs 7 or 8.
11
In the case of any article or substance found in or on any premises which that person has power to enter, being an article or substance which appears to that person to have, or be likely to have, a significant adverse impact on the water environment, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it, unless that is necessary).
12
In the case of any such article or substance as is mentioned in paragraph 11, to take possession of it and detain it for so long as is necessary for all or any of the following purposes namely:
a
to examine it, or cause it to be examined, and to do, or cause to be done, to it anything which that person has power to do under that paragraph;
b
to ensure that it is not tampered with before examination of it is completed;
c
to ensure that it is available for use as evidence in any proceedings for an offence under these Regulations or in any other proceedings relating to a variation notice, revocation or suspension notice or enforcement notice under these Regulations.
13
1
Subject to sub paragraph (2), to require any person whom he has reasonable cause to believe has any information relevant to any examination or investigation under paragraph 3 to answer such questions as the authorised person thinks fit to ask.
2
The person referred to in sub paragraph (1) may only be required to answer such questions in the absence of persons other than—
a
a person nominated by that person to be present; and
b
any person whom the authorised person may allow to be present.
14
To require the production of, or if the information is recorded electronically, the furnishing of extracts from, any records which are—
a
required to be kept under these Regulations ; or
b
necessary for that person to see for the purposes of an examination or investigation under paragraph 3,
and to inspect and take copies of, or of any entry in, the records.
15
To require any person to afford such facilities and assistance with respect to any matters or things within that person's control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred by this regulation.
16
To carry out borings or other works on any premises and to install, keep or maintain monitoring or other apparatus there.
PART 2Procedures etc.
17
Any person authorised by SEPA under regulation 31(4) must produce evidence of that person's authorisation before that person exercises any powers conferred by that authorisation.
18
Except in an emergency, in any case where it is proposed to enter any premises used for residential purposes, or to take heavy equipment on to any premises which are to be entered, any entry by virtue of this paragraph shall only be effected—
a
after the expiration of at least seven days' notice of the proposed entry given to a person who appears to the authorised person in question to be in occupation of the premises in question; and
b
either—
i
with the consent of a person who is in occupation of those premises; or
ii
under the authority of a warrant by virtue of Part 3 to this Schedule.
19
Except in an emergency, if an authorised person proposes to enter any premises and—
a
entry has been refused and that person apprehends on reasonable grounds that the use of force may be necessary to effect entry; or
b
that person apprehends on reasonable grounds that entry is likely to be refused and that the use of force may be necessary to effect entry,
any entry on to those premises by virtue of this regulation may only be effected under the authority of a warrant issued in accordance with Part 3 of this Schedule.
20
If an authorised person proposes to exercise the power conferred by paragraph 11 in the case of an article or substance found on any premises, that person must, if so requested by a person who at the time is present on and has responsibilities in relation to those premises, cause anything which is to be done by virtue of that power to be done in the presence of that person.
21
Before exercising the power conferred by paragraph 11 in the case of any article or substance, an authorised person must consult—
a
such persons having duties on the premises where the article or substance is to be dismantled or subjected to the process or test; and
b
such other persons,
as appear to that authorised person appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which that person proposes to do or cause to be done under the power.
22
No answer given by a person in pursuance of a requirement imposed under paragraph 13 will be admissible in evidence against that person in any criminal proceedings.
23
Nothing in this schedule will be taken to compel the production by any person of a document of which that person would on grounds of legal professional privilege be entitled to withhold production on an order for the production of documents in an action in the Court of Session.
24
A person who enters any premises in the exercise of any power conferred by these Regulations must leave the premises as effectually secured against unauthorised entry as that person found them.
PART 3Issue of warrants
25
If a sheriff or justice of the peace is satisfied that—
a
there are reasonable grounds for the exercise in relation to any premises of a power under Part 1 of this Schedule; and
b
one or more of the conditions specified in paragraph 26 is fulfilled in relation to those premises,
the sheriff or justice of the peace may by warrant authorise SEPA to designate a person to exercise the power in relation to those premises, in accordance with the warrant and, if need be, by force.
26
The conditions mentioned in paragraph 25 are—
a
that the exercise of the power in relation to the premises has been refused;
b
that such a refusal is reasonably apprehended;
c
that the premises are unoccupied;
d
that the occupier is temporarily absent from the premises, and the case is one of urgency; or
e
that an application for admission to the premises would defeat the object of the proposed entry.
27
In a case where paragraph 25 applies, a justice of the peace or sheriff must not issue a warrant under this Schedule by virtue only of being satisfied that the exercise of a power in relation to any premises has been refused, or that a refusal is reasonably apprehended, unless that person is also satisfied that the notice required by paragraph 18 has been given and that the period of that notice has expired.
28
Every warrant under this Schedule will continue in force until the purposes for which the warrant was issued have been fulfilled.
PART 4Evidence
29
In any legal proceedings it will be presumed until the contrary is shown, that any sample—
a
taken by virtue of the powers under this Schedule at a gauge, measuring station or other place provided in compliance with a condition imposed in an authorisation, is a sample, taken in accordance with those powers, of what was passing to the water environment at the place and the time recorded;
b
taken in exercise of the powers under this Schedule in circumstances that an authorised person has agreed with the operator or responsible person the time when, and the points at which, samples are to be taken, is a sample taken under that agreement and in accordance with those powers, of what was passing to the water environment at the place and time recorded.
30
Subject to paragraph 22, information obtained in consequence of the exercise of a power under this Schedule, with or without the consent of any person, will be admissible in evidence against that or any other person.
31
Without prejudice to the generality of paragraph 30, information obtained by means of monitoring or other apparatus installed on any premises in the exercise of a power under this Schedule with or without the consent of any person in occupation of the premises, is admissible in evidence in any proceedings against that or any other person.
PART 5Compensation
32
1
SEPA must compensate any person who has sustained loss or damage by reason of—
a
the exercise by an authorised person of the powers in paragraphs 1, 2 or 16; or
b
the failure of an authorised person to perform the duty imposed by paragraph 24,
unless the damage is attributable to the fault of the person who sustained it.
2
SEPA must compensate any person for damage or destruction of an article or substance in exercise of powers under paragraph 11 if that article or substance was found not to have a significant adverse impact on the water environment.
3
Any dispute as to a person's entitlement to compensation under paragraph (1) or (2), or as to the amount of such compensation, is to be determined by a single arbiter appointed by agreement between SEPA and the person claiming damage, or in default of agreement, by the President of the Lands Tribunal for Scotland.
4
An authorised person is not liable in any civil or criminal proceedings for anything done in purported exercise of any of the powers conferred on that person in accordance with regulation 31(4) if the court is satisfied that it was done in good faith and that there were reasonable grounds for doing it.
SCHEDULE 7Compensation for grant of rights
Interpretation1
In this Schedule—
“the 1963 Act” means the Land Compensation (Scotland) Act 1963 M12;
“grantor” means a person who has granted or joined in granting any rights pursuant to regulation 34; and
“relevant interest” means an interest in land or waters in respect of which rights have been granted pursuant to regulation 34.
Period for making an application2
An application for compensation must be made to the person referred to in regulation 34(6) or, if regulation 33(1)(b) applies and no person has been found, to SEPA, within the period beginning with the date of the grant of the rights in respect of which compensation is claimed and ending on whichever is the latest of the following dates—
a
12 months after the date of the grant of those rights;
b
if there is an appeal against the works notice which imposed the requirements in relation to which the rights in question were granted, 12 months after the date of the final determination or abandonment of the appeal; or
c
6 months after the date on which the rights were first exercised.
Form of application3
1
An application for compensation must be made in writing and delivered or sent by pre paid post to the last known address for correspondence of the person liable.
2
The application must contain, or be accompanied by—
a
a description of the grant of rights in respect of which the grantor is applying for compensation, and of any relevant plans;
b
a description of the grantor's relevant interest in respect of which compensation is applied for; and
c
a statement of the amount of compensation applied for distinguishing the amounts applied for under each of sub-paragraphs (a) to (e) of paragraph 4, indicating how the amount applied for under each sub-paragraph has been calculated.
Loss and damage for which compensation payable4
Compensation is 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
loss or damage, in relation to any relevant interest to which the grantor is entitled, which—
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 the grantor would have been entitled to compensation by way of compensation for disturbance, if that interest had been acquired compulsorily under the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 M13 in pursuance of a notice to treat served on the date on which the rights were granted;
c
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;
d
any loss or damage sustained by the grantor, other than in relation to any interest in land to which the grantor is entitled, which is attributable to the grant of the rights or the exercise of them; and
e
the amount of any valuation and legal expenses reasonably incurred by the grantor in granting the rights 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 under paragraph 6).
Basis on which compensation assessed5
1
The rules set out in section 12 of the 1963 Act (rules for assessing compensation) so far as applicable and subject to any necessary modifications, have effect for the purposes of paragraph 4 as they have effect for the purpose of assessing compensation for the compulsory acquisition of an interest in land.
2
If the relevant 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 M14—
a
the compensation will be assessed as if the interest were not subject to that security;
b
no compensation will 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 must be paid (subject to the maximum sum due thereunder) to the creditor in that security or, if there is more than one creditor, to the first ranking creditor and must, in either case, be applied by that person as if it were proceeds of sale.
Payment of compensation and determination of disputes6
1
Amounts of compensation determined under this Schedule is payable—
a
if the person to whom the rights were granted 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
if the person to whom the rights were granted 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; or
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 disputed compensation must be referred to and determined by the Lands Tribunal for Scotland.
3
In relation to the determination of any such questions, sections 9 and 11 of the 1963 Act (procedures on reference to the Lands Tribunal and expenses) apply as if—
a
the reference in section 9(1) of the 1963 Act to section 8 were a reference to sub paragraph (1) above; and
b
references in section 11 of the 1963 Act to the acquiring authority were references to the person to whom the rights were granted.
SCHEDULE 8Register
1
The register maintained by SEPA under regulation 37 must contain all particulars of:
a
any application made to SEPA for an authorisation;
b
any notice to the applicant by SEPA under regulation 13(2), 14(1) or 16(2);
c
any advertisement published pursuant to regulation 13 and 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 must not identify the person who made the representations in question);
e
any representations made by any public authority under regulation 12(2);
f
any authorisation granted, or deemed to be granted, under these Regulations;
F37g
in the case of an application in respect of a controlled activity that SEPA considered likely to have a significant adverse impact on the water environment, the matters outlined at regulation 15(6)(b) to (d);
h
any authorisation imposed by SEPA;
i
any application made to SEPA for the variation, transfer or surrender of an authorisation;
j
any variation, transfer and surrender of, or cessation of activity permitted under, any authorisation granted by SEPA;
k
any suspension or revocation of an authorisation granted by SEPA;
l
any notice issued by SEPA withdrawing or modifying a variation notice, a notice of surrender or a notice of suspension or revocation;
m
any enforcement notice, issued by SEPA;
n
any notice issued by SEPA withdrawing or modifying any enforcement notice;
o
any notice of appeal against a decision by SEPA or a notice served by it and of the documents relating to the appeal mentioned in paragraph 2(a), (d) and (e) of Schedule 9;
p
any representations made by any person in response to a notice given under paragraph 6 of Schedule 9, except where the person making the representation has requested that the representation be omitted from the register;
q
where paragraph (n) applies a statement that representations have been made which have been the subject of such a request (but such statement must not identify the person who made the representations);
r
any written notification of the determination by the Scottish Ministers of an appeal and any report accompanying any written notification;
s
any monitoring information relating to the carrying on, or the causing or permitting of the carrying on, of a controlled activity under an authorisation granted by SEPA which has been obtained by it as a result of its own monitoring or furnished to it in writing by virtue of a condition of the authorisation or under regulation 36(2);
t
in a case where any monitoring information is omitted from the register by virtue of regulation 38, 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 authorisation;
u
any other information furnished in compliance with a condition of the authorisation, a variation notice, enforcement notice, suspension notice or works notice, or by virtue of regulation 36(2);
v
any direction given to SEPA under any provision of these Regulations;
w
convictions for offences under these Regulations;
x
F13y
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
If 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 must be removed from the 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 may be entered in the register.
3
Nothing in paragraph 1 will require SEPA to keep in the register maintained by it—
a
monitoring information relating to a particular controlled activity 6 years after that information was entered in the register; or
b
information relating to a controlled activity which has been superseded by new information relating to that controlled activity 6 years after that new information was entered in the register.
4
Paragraph 3(a) does not apply to any aggregated monitoring data relating to specific impacts or classes of impacts on the water environment from controlled activities generally or from any class of controlled activities.
SCHEDULE 9Procedures in connection with appeals to the Scottish Ministers
1
A person who wishes to appeal to the Scottish Ministers under regulation 50 must give to the Scottish Ministers written notice of the appeal together with the documents specified in paragraph 2 and must at the same time send to SEPA a copy of that notice together with copies of the documents specified in paragraph 2(a) and (f).
2
The documents mentioned in paragraph 1 are—
a
a statement of the grounds of appeal;
b
a copy of any relevant application;
c
a copy of any relevant authorisation;
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; and
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, and must send a copy of that notification to SEPA.
4
Subject to paragraph 5, notice of appeal in accordance with paragraph 1 is to be given—
a
in the case of an appeal under regulation 50(a), (b) or (c), before the expiry of the period of three 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 50(i), before the date on which the suspension or revocation takes effect;
c
in the case of an appeal under regulation 50(d), (e), (f), (g),or (h), before the expiry of the period of two months beginning with the date of the notice which is the subject matter of the appeal;
d
in the case of an appeal under regulation 50(j) or (k), before the expiry of 21 days beginning with the date of the notice which is the subject matter of the appeal.
5
The Scottish Ministers may in a particular case allow notice of appeal to be given after the expiry of the periods mentioned in paragraph 4(a), (c), or (d).
6
Subject to paragraph 9, SEPA must, 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 made representations to SEPA with respect to the subject matter of the appeal; and
b
any person who appears to SEPA to be affected or likely to be affected by, or have an interest in, the subject matter of the appeal.
7
A notice under paragraph 6 must—
a
state that the notice of appeal has been given;
b
state the name of the appellant and the address of the site where the controlled activity is being carried on;
c
describe the application or authorisation to which the appeal relates; and
d
state that representations with respect to the appeal may be made to the Scottish Ministers in writing 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 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 paragraph 6(a) or (b) who makes representations with respect to the appeal will be notified of the date of the hearing.
8
SEPA must, within 14 days of sending a notice under paragraph 6—
a
notify the Scottish Ministers of the persons to whom and the date on which the notice was sent; and
b
indicate whether it wishes the appeal to be in the form of a hearing or to be disposed of on the basis of written representations.
9
In the event of an appeal being withdrawn, SEPA must give notice of the withdrawal to every person to whom notice was given under paragraph 6.
Hearing procedure10
Before determining an appeal under regulation 51, the Scottish Ministers may afford the appellant and SEPA an opportunity of appearing before and being heard by a person appointed by them (“the appointed person”) and they must do so in any case where a request is made by the appellant or SEPA to be so heard.
11
A hearing held under paragraph 10 may, if the appointed person so decides, be held wholly, or held to any extent, in private.
12
If the Scottish Ministers cause a hearing to be held under paragraph 10, they must give the appellant and SEPA at least 28 days' written notice (or such shorter period of notice as they may agree with the appellant and SEPA) of the date, time and place fixed for the holding of the hearing.
13
In the case of a hearing which is to be held wholly or partly in public, the Scottish Ministers must, at least 21 days before the date fixed for the holding of the hearing—
a
publish a copy of the notice mentioned in paragraph 12 in a newspaper circulating in the locality in which the controlled activity is carried on or is to be carried on;
b
serve a copy of that notice on every person mentioned in paragraph 6 who has made representations to the Scottish Ministers.
14
The Scottish Ministers may vary the date fixed for the holding of any hearing and paragraphs 12 and 13 must apply to the variation of a date as they applied to the date originally fixed.
15
The Scottish Ministers may also vary the time or place for the holding of a hearing and must give such notice of any such variation as appears to them to be reasonable.
16
The persons entitled to be heard at any hearing are the appellant and SEPA.
17
Nothing in paragraph 16 prevents the appointed person from permitting any other persons to be heard at the hearing and such permission must not be unreasonably withheld.
18
After the conclusion of a hearing, the appointed person must make a report to the Scottish Ministers in writing which must include the conclusions and recommendations of that person or the reasons for not making any recommendation.
19
Subsections (3) to (8) of section 210 of the Local Government (Scotland) Act 1973 M15 (which relates to the costs of and holding of local inquiries) 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—
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.
Procedure for written representations20
Where the appeal is to be disposed of on the basis of written representations, SEPA must submit any written representations to the Scottish Ministers not later than 28 days after receiving a copy of the documents mentioned in paragraph 2(a) and (f).
21
The appellant must make any further representations by way of reply to any representations made from SEPA not later than 28 days after the date of submission of those representations by SEPA under paragraph 20.
22
Any representations made by the appellant or SEPA must bear the date on which they are submitted to the Scottish Ministers.
23
When SEPA or the appellant submits any representations to the Scottish Ministers they must at the same time send a copy of them to the other party.
24
The Scottish Ministers must send to the appellant and SEPA a copy of any representations made to them by the persons mentioned in paragraph 6 and must allow the appellant and SEPA a period of not less than 14 days in which to make representations on them.
25
The Scottish Ministers may in a particular case—
a
set later time limits than those mentioned in paragraphs 20, 21 and 24;
b
require exchanges of representations between the parties in addition to those mentioned in paragraphs 20 and 21.
Determination and publication of appeal26
The Scottish Ministers must give notice to the appellant of their determination of the appeal and their reasons for that determination, and must provide the appellant with a copy of any report mentioned in paragraph 18.
27
The Scottish Ministers must at the same time send a copy of the notice of the determination of the appeal, their reasons for that determination and a copy of any report mentioned in paragraph 18 to SEPA and to any person who made representations to the Scottish Ministers during the appeal.
SCHEDULE 10Transitional and Savings Provisions
PART 1Water Environment
1
If on 31st March 2011 an authorisation under regulation 8 or 9 of the Water Environment (Controlled Activities) (Scotland) Regulations 2005 M16 (“the 2005 Regulations”) is in force, that authorisation will be treated as an authorisation granted under these Regulations which is subject (unless subsequently varied) to the same conditions, if any, as that authorisation.
2
For the avoidance of doubt, paragraph 1 applies to any authorisation that is treated as an authorisation by virtue of paragraphs 6, 11, 14 or 26 of Schedule 10 to the 2005 Regulations.
3
If on or before 31st March 2011 a person—
a
has applied under regulation 12 of the 2005 Regulations for an authorisation under regulations 8 or 9 of the 2005 Regulations;
b
has received notice from SEPA under regulation 11 of the 2005 Regulations that SEPA is treating an activity as an activity in respect of which an application has been made;
c
has applied under regulation 21 of the 2005 Regulations for a variation of an authorisation under regulations 8 or 9 of the 2005 Regulations;
d
has applied under regulation 22 of the 2005 Regulations to transfer an authorisation under regulation 9 of the 2005 Regulations; or
e
has applied under regulation 24 of the 2005 Regulations to surrender an authorisation under regulation 9 of the 2005 Regulations;
and that application has not been determined, paragraph 4 applies.
4
Notwithstanding the revocation of the 2005 Regulations by regulation 58, regulations 8 to 10, 12 to 17, and 46 to 49 of the 2005 Regulations continue to have effect in relation to any application referred to in paragraph 3.
5
If an authorisation is granted in respect of an application referred to in paragraph 3, that authorisation will be treated as an authorisation granted under these Regulations.
6
Notwithstanding the revocation of the 2005 Regulations by regulation 58—
a
any enforcement notice issued by SEPA in accordance with regulation 28 of the 2005 Regulations before 31st March 2011 has effect as if it had been issued under regulation 32 of these Regulations;
b
any variation notice issued by SEPA in accordance with regulation 20(2) of the 2005 Regulations before 31st March 2011 has effect as if it had been issued under regulation 23(3) of these Regulations;
c
any authorisation issued by SEPA under regulation 27(4) of the 2005 Regulations before 31st March 2011 has effect as if it had been issued under regulation 31(4) of these Regulations;
d
any notice of suspension or revocation issued by SEPA in accordance with regulation 26(1) of the 2005 Regulations before 31st March 2011 has effect as if it had been issued under regulation 29(1) of these Regulations;
e
any application for compensation made by a person in accordance with regulation 30(5) of the 2005 Regulations before 31st March 2011 has effect as if it had been made under regulation 34(5) of these Regulations;
f
any court proceedings commenced by SEPA under regulation 31 of the 2005 Regulations before 31st March 2011 will be treated as if they had been commenced under regulation 35 of these Regulations;
g
any notice served by the Scottish Ministers or SEPA under regulation 32 of the 2005 Regulations before 31st March 2011 has effect as if it had been served under regulation 36 of these Regulations;
h
any application for the determination of commercial confidentiality made by a person in accordance with regulation 35 of the 2005 Regulations before 31st March 2011 has effect as if it had been made under regulation 39 of these Regulations;
i
any notice of the registration of commercially confidential information and any notice of determination of commercial confidentiality issued by SEPA in accordance with regulation 36(1) or 36(3) of the 2005 Regulations before 31st March 2011 has effect as if it had been issued under regulation 40(1) or 40(3) of these Regulations, as appropriate;
j
any notice of review and any notice of the determination of a review issued by SEPA under regulation 37(2) or (37(4) of the 2005 Regulations before 31st March 2011 will be treated as if it had been issued under regulation 41(2) or 41(4) of these Regulations, as appropriate;
k
any direction issued by the Scottish Ministers under regulation 39 of the 2005 Regulations before 31st March 2011 will be treated as if it had been issued under regulation 43 of these Regulations;
l
any order issued by a court under regulation 45 of the 2005 Regulations before 31st March 2011 has effect as if it had been issued under regulation 49 of these Regulations;
m
any appeal under regulation 46 of the 2005 Regulations, notice of which has been given to the Scottish Ministers in accordance with paragraph 1 of Schedule 9 to the 2005 Regulations before 31st March 2011, will be treated as if it had been commenced under Part VIII of these Regulations;
n
any guidance issued by the Scottish Ministers under regulation 52 of the 2005 Regulations before 31st March 2011 has effect as if it had been issued under regulation 56 of these Regulations.
PART 2Pollution Control
7
If on 31st March 2011 a relevant authorisation is in force in respect of an activity which is a controlled activity, the provisions of paragraphs 8 to 11 apply.
8
The relevant authorisation referred to in paragraph 7 will be treated as an authorisation granted under these Regulations.
9
SEPA must, insofar as it has not done so under paragraph 15 of Schedule 10 to the 2005 Regulations, review all relevant authorisations referred to in paragraph 7 in accordance with the relevant provisions of the authorising legislation and where that legislation makes provision for variation or transfer of such an authorisation, it may carry out that review at the same time as such a variation or transfer.
10
When carrying out a review in accordance with paragraph 9, SEPA must—
a
assess the risk to the water environment posed by the carrying on of the authorised activity;
b
where it considers that the authorised activity has or is likely to have a significant adverse impact on the water environment—
i
assess the indirect effects of that impact on any other aspects of the environment likely to be significantly affected;
ii
consider any likely adverse social and economic effects of that impact and of any indirect environmental effects identified in accordance with sub-paragraph (i); and
iii
consider the likely environmental, social and economic benefits of the activity;
c
assess the impact of the authorised activity on the interests of other users of the water environment;
d
assess what steps may be taken to ensure efficient and sustainable water use;
e
f
have regard to the provisions of the legislation referred to in Part 2 of Schedule 4,
and take such steps under the authorising legislation as are necessary to ensure that the relevant authorisations comply with the requirements of these Regulations.
11
The review required under paragraph 9, and the steps required under paragraph 10 must be completed by 22nd December 2012.
12
Where an application for a relevant authorisation in respect of an activity that is a controlled activity has been made before 31st March 2011 but has not been determined by that date, the provisions of paragraphs 13 and 14 apply.
13
SEPA must, when considering an application referred to in paragraph 12—
a
assess the risk to the water environment posed by the carrying on of the authorised activity;
b
assess what steps may be taken to ensure efficient and sustainable water use;
c
apply the requirements of—
i
the legislation referred to in Part 1 of Schedule 4 to the 2005 Regulations; and
ii
regulation 24(5) of the 2005 Regulations; and
d
have regard to the provisions of the legislation referred to in part 2 of Schedule 4 to the 2005 Regulations,
and must, if they grant the application, ensure that the relevant authorisation complies with the requirements of the 2005 Regulations (notwithstanding their repeal by regulation 58 of these Regulations).
14
If an application is granted in accordance with paragraph 13, it will be treated, for the purposes of these Regulations, as an authorisation granted under these Regulations.
15
If, on or after 31st March 2011, an application for a relevant authorisation is made in respect of an activity which is a controlled activity, the provisions of paragraphs 16 and 17 apply.
16
SEPA must, when considering an application referred to in paragraph 15—
a
assess the risk to the water environment posed by the carrying on of the authorised activity;
b
where the application is in respect of an activity that it considers has or is likely to have a significant adverse impact on the water environment—
i
assess the indirect effects of that impact on any other aspects of the environment likely to be significantly affected;
ii
consider any likely adverse social and economic effects of that impact and of any indirect environmental effects identified in accordance with sub-paragraph (i); and
iii
consider the likely environmental, social and economic benefits of the activity;
c
assess the impact of the controlled activity on the interests of other users of the water environment;
d
assess what steps may be taken to ensure efficient and sustainable water use;
e
f
have regard to the provisions of the legislation referred to in Part 2 of Schedule 4,
and must, if they grant the application, ensure that the relevant authorisation complies with the requirements of these Regulations.
17
If an application is granted in accordance with paragraph 16, it will be treated, for the purposes of these Regulations, as an authorisation granted under these Regulations.
18
In this Part—
a
“authorised activity” means an activity referred to in paragraph 7, 12 or 15, as the case may be;
b
“authorising legislation” means the legislation referred to in paragraph (c); and
c
“relevant authorisation” means—
i
an authorisation under Part I of the Environmental Protection Act 1990 M17;
F39ii
a permit or registration under the Environmental Authorisations (Scotland) Regulations 2018;
iii
a permit under F42the Pollution Prevention and Control (Scotland) Regulations 2012; and
iv
a waste management licence under the Waste Management Licensing (Scotland) Regulations 2011.
SCHEDULE 11Amendments
Amendments to the Town and Country Planning (Scotland) Act 19971
In section 26 of the Town and Country Planning (Scotland) Act 1997 M18 (meaning of “development”) in subsection (2A)—
a
omit “irrigation or”; and
b
at the end insert “
, but does not include the carrying out of irrigation work
”
.
Amendments to the Town and Country Planning (General Permitted Development) (Scotland) Order 19922
In Schedule 1, Part 6 to the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 M19, in paragraph (1) of Class 18A (water management)—
a
omit “irrigation or”; and
b
at the end insert “
, but not including the carrying out of irrigation work
”
.
Amendment to the Environmental Impact Assessment (Scotland) Regulations 19993
In column 1 of the table in Schedule 2 to the Environmental Impact Assessment (Scotland) Regulations 1999 M20 at “1. Agriculture and aquaculture”, in entry (b) for “irrigation and land drainage projects” substitute “
drainage projects, but excluding irrigation projects
”
.
4
In column 2 of the table referred to in paragraph 3, at “1. Agriculture and aquaculture” omit—
a
entries (i) and (ii); and
b
the words “and for the purposes of this entry, “agricultural land” and “agricultural unit” have the same meaning as in Part 6 of Schedule 1 to the Town and Country Planning (General Permitted Development) (Scotland) Order 1992”,
and replace with “The area of the works exceeds one hectare”.
Savings Provision5
Nothing in paragraphs 1 to 4 will affect the continued operation of any of the provisions amended by them, as such provisions relate to—
a
any application lodged with, or received by, a planning authority or the Scottish Ministers prior to the commencement of these Regulations, or any appeal in relation to such an application;
b
any matter in relation to which an enforcement notice has been issued prior to the commencement of these Regulations; or,
c
the completion of any permitted development begun before the commencement date of these Regulations.
Sch. 3 Pt. 1 table substituted (1.7.2013) by The Water Environment (Controlled Activities) (Scotland) Amendment Regulations 2013 (S.S.I. 2013/176), regs. 1, 2(4)(a), sch.