The Transfrontier Shipment of Waste Regulations 2007

Regulation 51

SCHEDULE 5 U.K. Enforcement powers

PART 1 U.K. Powers of authorised persons

[F1 Powers under the Environment Act 1995 U.K.

1.   For the purposes of enforcing the Community Regulation and these Regulations, a person on whom the powers in section 108 of the Environment Act 1995 are conferred may exercise those powers in the English area, the Welsh area and the Scottish area.

Textual Amendments

F1 Sch. 5 para. 1, 1A substituted for sch. 5 para. 1 (1.5.2014) by The Transfrontier Shipment of Waste (Amendment) Regulations 2014 (S.I. 2014/861), regs. 1, 21(2)(a) (with reg. 23)

Powers under the Waste and Contaminated Land (Northern Ireland) Order 1997 U.K.

1A.   For the purposes of enforcing the Community Regulation and these Regulations, a person on whom the powers in Article 72 of the Waste and Contaminated Land (Northern Ireland) Order 1997 are conferred may exercise those powers in the Northern Irish area.]

Textual Amendments

F1 Sch. 5 para. 1, 1A substituted for sch. 5 para. 1 (1.5.2014) by The Transfrontier Shipment of Waste (Amendment) Regulations 2014 (S.I. 2014/861), regs. 1, 21(2)(a) (with reg. 23)

Information notice U.K.

2.  An authorised person may, by notice served on any person, require that person to provide such information 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.

Enforcement and prohibition notices U.K.

3.—(1) An authorised person may serve a notice on any person who contravenes or who the authorised person has reasonable grounds to suspect may contravene these Regulations or the Community Regulation—

(a) requiring him to act in accordance with the Regulations or the Community Regulation (in this Schedule referred to as an “enforcement notice”); or

(b) prohibiting him from acting in breach of them (in this Schedule referred to as a “prohibition notice”).

(2) The notice must give reasons for serving it and, if appropriate, specify what action must be taken and give time limits.

Appeals against enforcement and prohibition notices U.K.

4.—(1) Any person who is aggrieved by an enforcement or prohibition notice may appeal to a magistrates’ court or, in Scotland, to the sheriff.

(2) The procedure on an appeal to a magistrates’ court is by way of complaint, and the Magistrates’ Courts Act 1980(1) or, in the case of Northern Ireland, the Magistrates’ Court (Northern Ireland) Order 1981(2) applies to the proceedings.

(3) An appeal to the sheriff is by summary application.

(4) The period within which an appeal may be brought is 28 days or, in the case of an enforcement notice, the period specified in the notice, whichever ends earlier.

(5) An enforcement or prohibition notice must state—

(a) the right of appeal to a magistrates’ court or the sheriff;

(b) the period in which such an appeal may be brought.

Powers to seize waste U.K.

5.—(1) This paragraph applies if an authorised person has reasonable grounds to suspect that—

(a) the provisions of the Community Regulation or these Regulations are not being, have not been or are not likely to be complied with in respect of any waste; or

(b) the shipment, recovery or disposal of any waste cannot be completed in accordance with the notification and movement documents or the contract between the notifier and consignee.

[F2 (2) An authorised person—

(a) may take any or all of the actions specified in sub-paragraph (2A), (2B) or (2C) in relation to that waste;

(b) where the action specified in sub-paragraph (2C) is taken, may take either or both of the actions specified in sub-paragraph (2D).

(2A) The authorised person may seize the waste.

(2B) The authorised person may serve a notice on any person appearing to be in control of the waste prohibiting or restricting the movement of the waste.

(2C) The authorised person may serve a notice on any person appearing to be in control of the waste requiring that person to send the waste to a place specified in the notice (referred to in sub-paragraph (2D) as “the specified place”).

(2D) The authorised person may serve a notice on any person appearing to be in control of the specified place and involved in the shipment of the waste—

(a) requiring that person to accept the waste at that place;

(b) prohibiting or restricting the movement of the waste from that place.]

(3) In this paragraph any reference to waste includes—

(a) any thing that the authorised person has reasonable grounds to suspect is waste; and

(b) the container in which the waste or thing is carried.

Textual Amendments

F2 Sch. 5 para. 5(2)-(2D) substituted for Sch. 5 para. 5(2) (1.5.2014) by The Transfrontier Shipment of Waste (Amendment) Regulations 2014 (S.I. 2014/861), regs. 1, 21(2)(b) (with reg. 23)

Seizure procedures U.K.

6.—(1) If an authorised person seizes any waste under paragraph 5, he must give to the person in control of it a notice (a “seizure notice”)—

(a) giving the grounds for seizing it; and

(b) setting out the rights under this paragraph to make a claim, and the address for the service of the claim.

(2) If an authorised person is not immediately able to remove any waste seized under paragraph 5, he may mark it in any way he sees fit and serve a notice on the person in control of it, identifying it and prohibiting its removal from the premises until it is collected by, or under the direction of, an authorised person.

(3) Any person (other than an authorised person or a person acting under his direction) who removes waste referred to in sub-paragraph (2) from the premises is guilty of an offence.

(4) If it appears that the waste seized is—

(a) waste from a shipment that cannot be completed as intended, as referred to in Article 22; or

(b) an illegal shipment, as referred to in Article [F3 24] ,

and it is seized in an area that is not under the jurisdiction of the competent authority with responsibility for take-back pursuant to those Articles, the competent authority that seizes it must store it pending action by the competent authority with such responsibility.

(5) If the owner of the waste claims that the waste was not liable to seizure he may, within 28 days of the seizure, notify his claim to the competent authority at the address specified in the seizure notice, setting out the grounds in full.

(6) If a notification of a claim is not received within 28 days, the competent authority must take such steps as it considers appropriate to ensure the recovery or disposal of the waste and for these purposes may serve a notice on the notifier requiring him to recover or dispose of the waste in the manner and within the time period specified in the notice.

(7) If a notification of a claim is received within 28 days, the competent authority must either return the waste or take proceedings for an order for the confirmation of the notice and the recovery or disposal of the waste in a magistrates’ court (or, in Scotland, the sheriff) and if the court confirms the notice it must order its recovery or disposal.

Textual Amendments

F3 Word in Sch. 5 para. 6(4)(b) substituted (1.5.2014) by The Transfrontier Shipment of Waste (Amendment) Regulations 2014 (S.I. 2014/861), regs. 1, 21(2)(c) (with reg. 23)

Requests for assistance from other competent authorities U.K.

7.  An authorised person may exercise any powers in this Schedule for the purposes of fulfilling any request from any competent authority to assist it in carrying out its functions under the Community Regulation.

PART 2 U.K. [F4 Powers of general customs officials

Textual Amendments

F4 Sch. 5 Pt. 2 substituted (1.5.2014) by The Transfrontier Shipment of Waste (Amendment) Regulations 2014 (S.I. 2014/861), regs. 1, 21(3) (with reg. 23)

Powers of general customs officials U.K.

8.— (1) A general customs official may seize and detain any waste that has been brought into the United Kingdom or is to be dispatched from the United Kingdom—

(a) if requested to do so by a competent authority in the United Kingdom; or

(b) if that official suspects that, in respect of that waste, there is or is likely to be a breach of any provision of the Community Regulation or of these Regulations.

(2) A general customs official who seizes and detains any waste under sub-paragraph (1)(b) must inform the competent authority as soon as possible.

(3) Waste seized and detained under this paragraph may be detained for no more than 5 working days and must be dealt with during the period of its detention in such manner as the Secretary of State may direct under section 5 of the Borders, Citizenship and Immigration Act 2009.

(4) In this paragraph—

(a) “general customs official” means a general customs official designated under section 3(1) of the Borders, Citizenship and Immigration Act 2009; and

(b) “waste” includes—

(i) any thing that the competent authority or general customs official has reasonable grounds to suspect is waste, and

(ii) the container in which the waste or thing is carried.]

[F5 PART 2A U.K. Powers of persons authorised by the Secretary of State

Textual Amendments

F5 Sch. 5 Pt. 2A inserted (1.5.2014) by The Transfrontier Shipment of Waste (Amendment) Regulations 2014 (S.I. 2014/861), regs. 1, 21(4) (with reg. 23)

Powers of entry etc. U.K.

8A.— (1) A person authorised by the Secretary of State under regulation 50B(2) (“P”) may, for the purposes of assisting a competent authority in its enforcement of the Community Regulation and these Regulations—

(a) at any reasonable time board an offshore installation;

(b) be accompanied by an authorised person and take any equipment or materials that P thinks may be required;

(c) make such examination or investigation as P considers necessary (“a necessary examination or investigation”);

(d) give a direction requiring that any part of the offshore installation be left undisturbed (whether generally or in particular respects) for so long as reasonably necessary for the purposes of a necessary examination or investigation;

(e) take such measurements and photographs and make such recordings as P considers necessary for the purpose of a necessary examination or investigation;

(f) take samples of any thing found on the offshore installation or in the atmosphere or any land, seabed (including its subsoil) or water in the vicinity of the offshore installation;

(g) require any person who P has reasonable cause to believe is able to give any information relevant to a necessary examination or investigation—

(i) to attend at a place and time specified by P,

(ii) to answer (in the absence of any person other than persons whom P may allow to be present and a person nominated to be present by the person on whom the requirement is imposed) such questions as P thinks fit to ask, and

(iii) to sign a declaration of truth of that person’s answers;

(h) require the production of, and inspect and take copies of or of any entry in, any records which P considers it necessary to see for the purposes of a necessary examination or investigation;

(i) require any person to afford P 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 P considers are necessary to enable P to exercise any of the powers conferred on P by this Part.

(2) P must, if requested to do so, produce a duly authenticated authorisation document.

Supplementary U.K.

8B.— (1) An answer given by a person in compliance with a requirement imposed under paragraph 8A(1)(g) is admissible in evidence in England and Wales or Northern Ireland against that person in any proceedings or, in Scotland, against that person in criminal proceedings.

(2) In criminal proceedings in which a person mentioned in sub-paragraph (1) is charged with an offence to which this sub-paragraph applies, no evidence relating to that person’s answer may be adduced and no question relating to it may be asked by or on behalf of the prosecution unless evidence relating to it is adduced by or on behalf of that person.

(3) Sub-paragraph (2) applies to any offence other than one under—

(a) section 5 of the Perjury Act 1911 (false statutory declarations and other false statements without oath);

(b) section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements and declarations not on oath); or

(c) Article 10 of the Perjury (Northern Ireland) Order 1979 (false statutory declarations and other false unsworn statements).

(4) Nothing in this Part compels the production by a person of a document which—

(a) except in relation to Scotland, that person would on grounds of legal professional privilege be entitled to withhold on an order for discovery in an action in the County Court or High Court; or

(b) in relation to Scotland, contains confidential information made by or to an advocate or solicitor in that capacity and which that person would be entitled to withhold on an order for the production of documents in an action in the Court of Session.]

PART 3 U.K. Take-back etc. of waste

Shipments of waste that cannot be completed U.K.

9.  If a competent authority of dispatch receives notification from another competent authority under Article 22 (take-back when a shipment cannot be completed as intended), it may serve a notice on the notifier of the shipment requiring him to act in accordance with Article 22 within a specified time.

Illegal shipments of waste U.K.

10.  If a competent authority of dispatch receives notification from another competent authority under Article 24 (take-back when a shipment is illegal), it may serve a notice on the notifier of the shipment (or if it is not notifiable waste, the person who arranged the shipment) requiring him to act in accordance with Article 24 within a specified time.

Recovery or disposal of illegal shipment U.K.

11.  If a competent authority of destination receives notification from another competent authority under Article 24 (take-back when a shipment is illegal), it may serve a notice on the consignee of the shipment requiring him to act in accordance with Article 24(3) within a specified time.

Take-back by the competent authority U.K.

12.  If a competent authority, acting under the Community Regulation, brings back waste into its area of jurisdiction from outside that area, it may recover or dispose of it as it sees fit at the notifier’s expense.

(1)

1980 c. 43; sections 51 and 52 have been substituted by section 47 of the Courts Act 2003 (c. 39).

(2)

S.I. 1981/1675 (N.I. 26).