Control of Pollution Act 1974

[F1 39 Appeals to the Secretary of State. S

(1) Any questions as to whether—

(a) [F2 SEPA]] has unreasonably withheld its consent in pursuance of [F3 section 30J(4)] or 34 of this Act or regulations made by virtue of section 31(4) of this Act or has given its consent in pursuance of the said section 34 or such regulations subject to conditions which are unreasonable; or

(b) a notice served in pursuance of section 37(1) of this Act contains terms (other than a term required by subsection (2) of [F4 section 38 of this Act]) which are unreasonable; or

(c) the period specified in any instrument or notice in pursuance of subsection (1) or (2) of [F4 section 38 of this Act] is unreasonable,

shall be determined for the purposes of this Part of this Act by the Secretary of State; but no question relating to a determination of the Secretary of State in pursuance of section 35(4) of this Act shall be referred to him in pursuance of this subsection and any such determination shall be final.

(2) Provision may be made by regulations as to the manner in which and the time within which a question may be referred or a request may be made in pursuance of the preceding provisions of this section and as to the procedure for dealing with such a reference or request.

(3) In any case where—

(a) a question as to whether [F2 SEPA] has unreasonably withheld its consent in pursuance of section 34 of this Act, or has given its consent in pursuance of that section subject to conditions which are unreasonable, is referred to the Secretary of State in pursuance of this section; and

(b) representations relating to the application for the consent in question were made to [F5 SEPA] in pursuance of section 36(1)(c) of this Act,

it shall be the duty of the Secretary of State, before he determines the question, to secure that [F5 SEPA] has served notice of the reference on the persons who made the representations and to take account of any further written representations relating to the application which are received by him from those persons within a prescribed period.

(4) Where a question is referred to the Secretary of State in pursuance of subsection (1) of this section and he determines that the consent in question was unreasonably withheld or that the conditions or terms or period in question are or is unreasonable, he shall give to [F5 SEPA] such a direction as he thinks fit with regard to the consent, conditions, terms or period and it shall be the duty of [F5 SEPA] to comply with the direction.

(5) The withholding by [F2 SEPA] of such a consent as is mentioned in subsection (1) of this section, the conditions subject to which such a consent is given and such [F6 period as is] so mentioned shall be treated as reasonable for the purposes of this Part of this Act until the contrary is determined in pursuance of subsection (1) of this section except that where a question as to the reasonableness of the conditions of a consent given in pursuance of regulations made by virtue of section 31(4) of this Act is referred to the Secretary of State in pursuance of this section the consent shall be treated for those purposes as unconditional while the reference is pending.

[F7 (5A) Subject to subsection (5B) below, where a question is referred to the Secretary of State in pursuance of subsection (1)(b) above, the revocation of the consent or, as the case may be, the modification of the conditions of the consent or the provision that the consent (having been unconditional) shall be subject to conditions, shall not take effect while the reference is pending.

(5B) Subsection (5A) above shall not apply to a reference where the notice effecting the revocation, modification or provision in question includes a statement that in the opinion of SEPA it is necessary for the purpose of preventing or, where that is not practicable, minimising—

(a) the entry into controlled waters of any poisonous, noxious or polluting matter or any solid waste matter, or

(b) harm to human health,

that that subsection should not apply.

(5C) Where the reference falls within subsection (5B) above, if, on the application of the holder or former holder of the consent, the Secretary of State (or other person determining the question referred) determines that SEPA acted unreasonably in excluding the application of subsection (5A) above, then—

(a) if the reference is still pending at the end of the day on which that determination is made, subsection (5A) above shall apply to the reference from the end of that day; and

(b) the holder or former holder of the consent shall be entitled to recover compensation from SEPA in respect of any loss suffered by him in consequence of the exclusion of the application of that subsection;

and any dispute as to a person’s entitlement to such compensation or as to the amount of it shall be determined by a single arbiter appointed, in default of agreement between the parties concerned, by the Secretary of State on the application of any of the parties.]

(6) At any stage of the proceedings on a reference to the Secretary of State in pursuance of this section he may, and shall if so directed by the Court of Session, state in the form of a special case for the decision of the court any question of law arising in those proceedings.

[F8 (7) This section is subject to section 114 of the Environment Act 1995 (delegation or reference of appeals).

(8) In this section “the holder”, in relation to a consent, is the person who has the consent.]

Textual Amendments

F1 Ss. 31, 32 and 34-42 repealed (E.W.) by Water Act 1989 (c. 15, SIF 130), ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 189(4)-(10), 190, 193(1), Sch. 26 paras. 3(1)(2), 17, 40(4), 41(1), 57(6), 58, Sch. 27 Pt. I and for ss. 31-32 and ss. 34-42 there is substituted (S.) ss. 30A-32 and 34-42 by Water Act 1989 (c. 15, SIF 130), ss. 58(7), 101(1), 141(6), 160(1)(2)(4), 168, 189(4)--(10), 190, 193(1), 194(4), Sch. 23 para. 4, Sch. 26 paras. 3(1)(2), 17, 40(4), 41(1), 57(6), 58

F2 Words in s. 39(1)(3)(5) substituted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 29(2) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F3 Words in s. 39(1)(a) substituted (1.4.1996) by 1995 c. 25, s. 106, Sch. 16 para. 7 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F4 Words in s. 39(1)(b)(c) substituted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 29(15)(a) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F5 Words in s. 39(3)(4) substituted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 29(10) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F6 Words in s. 39(5) substituted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 29(15)(b) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F7 S. 39(5A)-(5C) inserted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 29(15)(c) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F8 S. 39(7)(8) added (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 29(15)(d) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modifications etc. (not altering text)

C1 Ss. 37–40 extended by S.I. 1984/863, reg. 3, Sch. 1

C2 S. 39 extended (2.12.1991) by S.I. 1991/2539, reg. 3, Sch.

S. 39 amended (27.8.1993) by 1993 c. 12, ss. 40, 51(3), Sch. 3 Pt. II para. 16 (with ss. 42, 46)

C3 S. 39(1): power to delegate functions conferred (1.4.1996) by 1995 c. 25, s. 114(2)(b)(3)(b) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

C4 S. 39(5A)-(5C) applied (1.4.1996) by S.I. 1996/973, reg. 3