The Industrial Pollution Control (Northern Ireland) Order 1997

Enforcement

Enforcement notices

13.—(1) If the enforcing authority is of the opinion that the person carrying on a prescribed process under an authorisation is contravening any condition of the authorisation, or is likely to contravene any such condition, the authority may serve on him a notice (“an enforcement notice”).

(2) An enforcement notice shall—

(a) state the authority’s opinion;

(b) specify the matters constituting the contravention or the matters making it likely that the contravention will arise, as the case may be;

(c) specify the steps that must be taken to remedy the contravention or to remedy the matters making it likely that the contravention will arise, as the case may be; and

(d) specify the period within which those steps must be taken.

(3) The Department may, if it thinks fit in relation to the carrying on by any person of a prescribed process, give to the enforcing authority directions as to whether the authority should exercise its powers under this Article and as to the steps which are to be required to be taken under this Article.

(4) The enforcing authority may, as respects any enforcement notice it has issued to any person, by notice in writing served on that person, withdraw the notice.

Prohibition notices

14.—(1) If the enforcing authority is of the opinion, as respects the carrying on of a prescribed process under an authorisation, that the continuing to carry it on, or the continuing to carry it on in a particular manner, involves an imminent risk of serious pollution of the environment the authority shall serve a notice (a “prohibition notice”) on the person carrying on the process.

(2) A prohibition notice may be served whether or not the manner of carrying on the process in question contravenes a condition of the authorisation and may relate to any aspects of the process, whether regulated by the conditions of the authorisation or not.

(3) A prohibition notice shall—

(a) state the authority’s opinion;

(b) specify the risk involved in the process;

(c) specify the steps that must be taken to remove it and the period within which they must be taken; and

(d) direct that the authorisation shall, until the notice is withdrawn, wholly or to the extent specified in the notice cease to have effect to authorise the carrying on of the process;

and where the direction applies to part only of the process it may impose conditions to be observed in carrying on the part which is authorised to be carried on.

(4) The Department may, if it thinks fit in relation to the carrying on by any person of a prescribed process, give to the enforcing authority directions as to—

(a) whether the authority should perform its duties under this Article; and

(b) the matters to be specified in any prohibition notice in pursuance of paragraph (3) which the authority is directed to issue.

(5) The enforcing authority shall, as respects any prohibition notice it has issued to any person, by notice in writing served on that person, withdraw the notice when it is satisfied that the steps required by the notice have been taken.

Appeals as respects authorisations and against variation, enforcement and prohibition notices

15.—(1) The following persons, namely—

(a) a person who has been refused the grant of an authorisation under Article 6;

(b) a person who is aggrieved by the conditions attached, under any provision of this Order, to his authorisation;

(c) a person who has been refused a variation of an authorisation on an application under Article 11;

(d) a person whose authorisation has been revoked under Article 12;

may appeal against the decision of the enforcing authority to the Department (except where the decision implements a direction of the Department).

(2) A person on whom a variation notice, an enforcement notice or a prohibition notice is served may appeal against the notice to the Department (except where the notice implements a direction of the Department).

(3) Where a person appeals to the Department under this Article, the Department shall—

(a) determine the appeal; or

(b) refer the appeal for determination to the Planning Appeals Commission; or

(c) refer the appeal or any matter involved in the appeal to the Planning Appeals Commission and consider the report of the Commission before determining the appeal.

(4) Part I of Schedule 2 shall have effect where an appeal or any matter involved in an appeal is referred to the Planning Appeals Commission under paragraph (3)(b) or (c).

(5) Before determining an appeal in accordance with paragraph (3)(a), the Department may, if it thinks fit—

(a) refer any matter involved in the appeal to such person as the Department may appoint for the purpose, with or without payment; or

(b) cause the appeal to take or continue in the form of a hearing (which may, if the person hearing the appeal so decides, be held, or held to any extent, in private),

and the Department shall act as mentioned in sub-paragraph (b) if a request is made by either party to the appeal to be heard with respect to the appeal.

(6) On determining an appeal against a decision of an enforcing authority under paragraph (1), the Department—

(a) may affirm the decision;

(b) where the decision was a refusal to grant an authorisation or a variation of an authorisation, may direct the enforcing authority to grant the authorisation or to vary the authorisation, as the case may be;

(c) where the decision was as to the conditions attached to an authorisation, may quash all or any of the conditions of the authorisation:

(d) where the decision was to revoke an authorisation, may quash the decision;

and where the Department exercises any of the powers in sub-paragraph (b), (c) or (d), it may give directions as to the conditions to be attached to the authorisation.

(7) On the determination of an appeal under paragraph (2) the Department may either quash or affirm the notice and, if the Department affirms it, may do so either in its original form or with such modifications as the Department may in the circumstances think fit.

(8) Where an appeal is brought under paragraph (1) against the revocation of an authorisation, the revocation shall not take effect pending the final determination or the withdrawal of the appeal.

(9) Where an appeal is brought under paragraph (2) against a notice, the bringing of the appeal shall not have the effect of suspending the operation of the notice.

(10) Provision may be made by the Department by regulations with respect to appeals under this Article; and in particular provision may be so made—

(a) requiring appeals to be brought within such period as may be prescribed by, or determined under or in accordance with, the regulations;

(b) requiring appeals to be advertised in such manner as may be so prescribed;

(c) as to the manner in which appeals are to be brought; and

(d) as to the manner in which appeals are to be considered by the Department.

Appointment of chief inspector and other inspectors

16.—(1) The Department may appoint as inspectors (under whatever title the Department may determine) such persons having suitable qualifications as the Department thinks necessary for carrying this Order into effect in relation to prescribed processes designated for integrated central control or restricted central control or for the time being transferred under Article 5(5) to restricted central control, and may terminate any appointment made under this paragraph.

(2) The Department may make to or in respect of any person so appointed such payments by way of remuneration, allowances or otherwise as the Department may determine.

(3) The Department shall constitute one of the inspectors appointed under paragraph (1) to be the chief inspector.

(4) The functions conferred or imposed by or under this Order on the chief inspector as the enforcing authority may, to any extent, be delegated by him to any other inspector appointed under paragraph (1).

(5) A district council may appoint as inspectors (under whatever title the council may determine) such persons having suitable qualifications as the council thinks necessary for carrying this Order into effect in the council’s district in relation to prescribed processes designated for local control (and not so transferred), and may terminate any appointment made under this paragraph.

(6) An inspector shall not be liable in any civil or criminal proceedings for anything done in the purported performance of his functions under Article 17 or 18 if the court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it.

(7) In paragraph (6) and the following provisions of this Order “inspector” means a person appointed as an inspector under paragraph (1) or (5).

Powers of inspectors and others

17.—(1) An inspector may, on production (if so required) of his authority, exercise any of the powers in paragraph (3) for the purpose of—

(a) determining whether any provisions of the pollution control statutory provisions in the case of an enforcing authority are being, or have been, complied with;

(b) discharging one or more of the functions conferred or imposed on an enforcing authority by or under the pollution control statutory provisions; or

(c) determining whether and, if so, how such a function should be discharged.

(2) Those powers, so far as exercisable in relation to premises, are exercisable in relation—

(a) to premises on which a prescribed process is, or is believed (on reasonable grounds) to be, carried on; and

(b) to premises on which a prescribed process has been carried on (whether or not the process was a prescribed process when it was carried on) the condition of which is believed (on reasonable grounds) to be such as to give rise to a risk of e serious pollution of the environment.

(3) The powers of an inspector are—

(a) to enter at any reasonable time (or, in an emergency, at any time and, if need be, by force) any premises which he has reason to believe it is necessary for him to enter;

(b) on entering any premises by virtue of sub-paragraph (a) to take with him—

(i) any person duly authorised by the chief inspector or, as the case may be, the district council and, if the inspector has reasonable cause to apprehend any serious obstruction in the execution of his duty, a constable; and

(ii) any equipment or materials required for any purpose for which the power of entry is being exercised;

(c) to make such examination and investigation as may in any circumstances be necessary;

(d) as regards any premises which he has power to enter, to direct that those premises or any part of them, or anything in them, shall 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 sub-paragraph (c);

(e) to take such measurements and photographs and make such recordings as he considers necessary for the purpose of any examination or investigation under sub-paragraph (c);

(f) to take samples of any articles or substances found in or on any premises which he has power to enter, and of the air, water or land in, on, or in the vicinity of, the premises;

(g) in the case of any article or substance found in or on any premises which he has power to enter, being an article or substance which appears to him to have caused or to be likely to cause pollution of the environment or harm to human health, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless this is necessary);

(h) in the case of any such article or substance as is mentioned in sub-paragraph (g), to take possession of it and detain it for so long as is necessary for all or any of the following purposes, namely—

(i) to examine it and do to it anything which he has power to do under that sub-paragraph;

(ii) to ensure that it is not tampered with before his examination of it is completed;

(iii) to ensure that it is available for use as evidence in any proceedings for an offence under Article 23 or any other proceedings relating to a variation notice, an enforcement notice or a prohibition notice;

(i) to require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation under sub-paragraph (c) to answer (in the absence of persons other than a person nominated by that person to be present and any persons whom the inspector may allow to be present) such questions as the inspector thinks fit to ask and to sign a declaration of the truth of his answers;

(j) to require the production of, or where the information is recorded in computerised form, the furnishing of extracts from, any records which are required to be kept under this Order or it is necessary for him to see for the purposes of an examination or investigation under sub-paragraph (c) and to inspect and take copies of, or of any entry in, the records;

(k) to require any person to afford him 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 inspector to exercise any of the powers conferred on him by this Article;

(l) any other power for the purpose mentioned in paragraph (1) which is conferred by regulations made by the Department.

(4) The powers which under paragraphs (1) to (3) are conferred in relation to any premises for the purpose of enabling an enforcing authority to determine whether any provision of the pollution control statutory provisions in the case of that authority is being, or has been, complied with shall include power, in order to obtain the information on which that determination may be made—

(a) to carry out experimental borings or other works on those premises; and

(b) to install, keep or maintain monitoring and other apparatus there.

(5) Except in an emergency, in any case where it is proposed to take heavy equipment on to any premises which are to be entered, any entry by virtue of this Article shall only be effected—

(a) after the expiration of at least 7 days' notice of the proposed entry given to a person who appears to the inspector 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 Schedule 3.

(6) Except in an emergency, where an inspector proposes to enter any premises and—

(a) entry has been refused and he apprehends on reasonable grounds that the use of force may be necessary to effect entry; or

(b) he 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 Article shall only be effected under the authority of a warrant by virtue of Schedule 3.

(7) The Department may by regulations make provision as to the procedure to be followed in connection with the taking of, and the dealing with, samples under paragraph (3)(f).

(8) Where an inspector proposes to exercise the power conferred by paragraph (3)(g) in the case of an article or substance found on any premises, he shall, 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.

(9) Before exercising the power conferred by paragraph (3)(g) in the case of any article or substance, an inspector shall 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 him appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which he proposes to do under the power.

(10) No answer given by a person in pursuance of a requirement imposed under paragraph (3)(i) shall be admissible in evidence against that person in any proceedings.

(11) Nothing in this Article shall be taken to compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court.

(12) In this Article and Schedule 3—

• “emergency” means a case in which it appears to the inspector in question—

  (a)

  that there is an immediate risk of serious pollution of the environment or serious harm to human health, or

  (b)

  that circumstances exist which are likely to endanger life or health,

  and that immediate entry to any premises is necessary to verify the existence of that risk or those circumstances or to ascertain the cause of that risk or those circumstances or to effect a remedy;

• “pollution control statutory provisions”—

  (a)

  in relation to the chief inspector, means—

  (i)

  this Order;

  (ii)

  the [1906 c. 14.] Alkali, &c. Works Regulation Act 1906; and

  (iii)

  regulations made under section 2(2) of the [1972 c. 68.] European Communities Act 1972 to the extent that the regulations relate to pollution;

  (b)

  in relation to a district council, means—

  (i)

  this Order; and

  (ii)

  regulations made under section 2(2) of the European Communities Act 1972 to the extent that the regulations relate to pollution.

(13) Schedule 3 shall have effect with respect to the powers of entry and related powers which are conferred by this Article.

(14) This Article and Schedule 3 apply (with appropriate modifications) in relation to mobile plant as they apply to premises.

(15) Nothing in section 98 of the [1972 c. 9 (N.I.).] Local Government Act (Northern Ireland) 1972 shall apply to functions conferred on a district council under this Order.

Power to deal with cause of imminent danger of serious pollution, etc.

18.—(1) Where, in the case of any article or substance found by him on any premises which he has power to enter, an inspector has reasonable cause to believe that, in the circumstances in which he finds it, the article or substance is a cause of imminent danger of serious pollution of the environment or serious harm to human health he may seize it and cause it to be rendered harmless (whether by destruction or otherwise).

(2) As soon as may be after any article or substance has been seized and rendered harmless under this Article, the inspector shall prepare and sign a written report giving particulars of the circumstances in which the article or substance was seized and so dealt with by him, and shall—

(a) give a signed copy of the report to a responsible person at the premises where the article or substance was found by him; and

(b) unless that person is the owner of the article or substance, also serve a signed copy of the report on the owner;

and if, where sub-paragraph (b) applies, the inspector cannot after reasonable inquiry ascertain the name or address of the owner, the copy may be served on him by giving it to the person to whom a copy was given under sub-paragraph (a).

Obtaining of information from persons and authorities

19.—(1) For the purposes of the discharge of its functions under this Order, the Department may, by notice in writing served on an enforcing authority, require the authority to furnish such information about the discharge of its functions as an enforcing authority under this Order as the Department may require.

(2) For the purposes of the discharge of their respective functions under this Order, the following authorities, that is to say—

(a) the Department,

(b) a district council, and

(c) the chief inspector,

may, by notice in writing served on any person, require that person to furnish to the authority such information which the authority reasonably considers that it needs as is specified in the notice, in such form and within such period following service of the notice, or at such time, as is so specified.

(3) For the purposes of this Article the discharge by the Department of an obligation of the United Kingdom under the Community Treaties or any international agreement relating to environmental protection shall be treated as a function of the Department under this Order.