The Waste and Contaminated Land (Northern Ireland) Order 1997

Powers of enforcing authorities and persons authorised by them N.I.

72.—(1) An authorised person may, on production (if so required) of his authority, exercise any of the powers in paragraph (2) 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) The powers of an authorised person 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 other person [F1 including,] if the authorised person 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, or cause samples to be taken, 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, F2 . . . , 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);

(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, or cause it to be examined, and to do, or cause to be done, to it anything which he has power to do under that sub-paragraph;

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

(iii) to ensure that it is available for use as evidence in any proceedings for an offence under the pollution control statutory provisions in the case of the enforcing authority under whose authorisation he acts or in any other proceedings relating to a variation notice, enforcement notice or prohibition notice under those statutory provisions;

(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 authorised person may allow to be present) such questions as the authorised person 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—

(i) which are required to be kept under the pollution control statutory provisions for the enforcing authority under whose authorisation he acts, or

(ii) which 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 authorised person to exercise any of the powers conferred on him by this Article;

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

(3) The powers which under paragraphs (1) and (2) 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.

(4) 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 Article shall only be effected—

(a) F3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 4.

(5) Except in an emergency, where an authorised person 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 4.

(6) Regulations may make provision as to the procedure to be followed in connection with the taking of, and the dealing with, samples under paragraph (2)(f).

(7) Where an authorised person proposes to exercise the power conferred by paragraph (2)(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.

(8) Before exercising the power conferred by paragraph (2)(g) in the case of any article or substance, an authorised person 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 or cause to be done under the power.

(9) No answer given by a person in pursuance of a requirement imposed under paragraph (2)(i) shall be admissible in evidence in Northern Ireland against that person in any proceedings.

(10) 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.

(11) Schedule 4 shall have effect with respect to the powers of entry and related powers which are conferred by this Article.

(12) In this Article and Schedule 4—

• “authorised person” means a person who is authorised in writing by an enforcing authority for the purposes of this Article;

• “emergency” means a case in which it appears to the authorised person 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;

• “enforcing authority” means—

  (a)

  the Department;

  (aa)

  [F4 a district council in relation to Articles 4 and 5;]

  (b)

  a district council in its capacity as an enforcing authority for the purposes of Part III;

  Sub-para. (c) rep. by 1997 NI 19

• “pollution control statutory provisions”

  (a)

  in relation to the Department, means—

  (i)

  this Order; and

  (ii)

  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)

  Part III;

  (ia)

  [F5 Articles 4 and 5;]

  Sub-para. (b)(ii) rep. by 1997 NI 19

  (iii)

  regulations made under [F6 [F7 assimilated] obligations] , to the extent that the regulations relate to pollution;

• “premises” includes any land, vehicle, vessel or mobile plant.

(13) 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, other than functions under Article 28.

F1 Words in art. 72(2)(b)(i) substituted (25.6.2007) by virtue of Waste (Amendment) (Northern Ireland) Order 2007 (S.I. 2007/611 (N.I. 3)), arts. 1(3), 18(1)(a); S.R. 2007/294, art. 2, Sch.

F2 Words in art. 72(2)(g) repealed (25.6.2007) by Waste (Amendment) (Northern Ireland) Order 2007 (S.I. 2007/611 (N.I. 3)), arts. 1(3), 18(1)(b), 20, Sch.; S.R. 2007/294, art. 2, Sch.

F3 Art. 72(4)(a) repealed (17.10.2011) by Waste and Contaminated Land (Amendment) Act (Northern Ireland) 2011 (c. 5), ss. 11(2), 12(1), Sch. 2; S.R. 2011/312, art. 2, Sch.

F4 Words in art. 72(12) inserted (2.1.2023) by Waste and Contaminated Land (Amendment) Act (Northern Ireland) 2011 (c. 5), ss. 5(1)(a), 12; S.R. 2022/289, art. 2(b)

F5 Words in art. 72(12) inserted (2.1.2023) by Waste and Contaminated Land (Amendment) Act (Northern Ireland) 2011 (c. 5), ss. 5(1)(b), 12; S.R. 2022/289, art. 2(b)

F6 Words in art. 72(12) substituted (31.12.2020) by The Environment (Miscellaneous Amendments) (Northern Ireland) (EU Exit) Regulations 2019 (S.I. 2019/584), regs. 1, 12; 2020 c. 1, Sch. 5 para. 1(1)

F7 Word in art. 72(12) substituted (1.1.2024) by The Retained EU Law (Revocation and Reform) Act 2023 (Consequential Amendment) Regulations 2023 (S.I. 2023/1424), reg. 1(2), Sch. para. 40(2)

Modifications etc. (not altering text)

C1 Art. 72 modified (12.7.2007) by Transfrontier Shipment of Waste Regulations 2007 (S.I. 2007/1711), reg. 51, Sch. 5 para. 1 (with regs. 3, 10, Sch. 1)

C2 Art. 72 applied (24.3.2012) by Quality of Bathing Water Regulations (Northern Ireland) 2008 (S.R. 2008/231), regs. 1(4), 18

C3 Art. 72 applied (31.7.2011) by Controls on Ozone-Depleting Substances Regulations (Northern Ireland) 2011 (S.R. 2011/239), reg. 14(4) (with reg. 15)

C4 Art. 72 extended (31.7.2011) by Controls on Ozone-Depleting Substances Regulations (Northern Ireland) 2011 (S.R. 2011/239), reg. 14(6) (with reg. 15)

C5 Art. 72 applied (31.7.2011) by Ozone-Depleting Substances (Qualifications) Regulations (Northern Ireland) 2011 (S.R. 2011/240), reg. 7(3) (with reg. 15)

C6 Art. 72 applied (with modifications) (1.4.2018) by The Control of Mercury (Enforcement) Regulations 2017 (S.I. 2017/1200), regs. 2(2), 21(3) (with reg. 1(2))