http://www.legislation.gov.uk/id/nisi/1997/2778

C6 C7 PART IIWASTE ON LAND

Annotations:

Modifications etc. (not altering text)

Pt. 2 (arts. 3-48) modified by S.R. 2003/493, Sch. 3 Pt. 1 para. 9 (as substituted (8.4.2011) by Waste Regulations (Northern Ireland) 2011 (S.R. 2011/127), regs. 1(1), 40 (with reg. 9(2)))

Pt. II modified (30.11.2013) by The Controlled Waste and Duty of Care Regulations (Northern Ireland) 2013 (S.R. 2013/255), regs. 1(1), 4(1)

Meaning of “fit and proper person”3

1

The following provisions apply for the purposes of the discharge by the Department of any function under this Part which requires the Department to determine whether a person is or is not a fit and proper person to hold a waste management licence.

2

Whether a person is or is not a fit and proper person to hold a licence is to be determined by reference to the carrying on by him of the activities which are or are to be authorised by the licence and the fulfilment of the requirements of the licence.

3

Subject to paragraph (4), a person shall be treated as not being a fit and proper person if it appears to the Department—

a

that he or another relevant person has been convicted of a prescribed offence;

b

that the management of the activities which are or are to be authorised by the licence are not or will not be in the hands of a technically competent person; or

c

that the person who holds or is to hold the licence has not made and either has no intention of making or is in no position to make financial provision adequate to discharge the obligations arising from the licence.

4

The Department may, if it considers it proper to do so in any particular case, treat a person as a fit and proper person notwithstanding that paragraph (3)(a) applies in his case.

5

Regulations may prescribe the qualifications and experience required of a person for the purposes of paragraph (3)(b).

6

For the purposes of paragraph (3)(a), another relevant person shall be treated, in relation to the licence holder or proposed licence holder, as the case may be, as having been convicted of a prescribed offence if—

a

any person has been convicted of a prescribed offence committed by him in the course of his employment by the holder or, as the case may be, the proposed holder of the licence or in the course of the carrying on of any business by 2 or more persons in partnership one of such persons was the holder or, as the case may be, the proposed holder of the licence;

b

a body corporate has been convicted of a prescribed offence committed when the holder or, as the case may be, the proposed holder of the licence was a director, manager, secretary or other similar officer of that body corporate; or

c

where the holder or, as the case may be, the proposed holder of the licence is a body corporate, a person who is a director, manager, secretary or other similar officer of that body corporate—

i

has been convicted of a prescribed offence; or

ii

was a director, manager, secretary or other similar officer of another body corporate at a time when a prescribed offence for which that other body corporate has been convicted was committed.

Prohibition on unauthorised or harmful depositing, treatment or disposal of waste

Prohibition on unauthorised or harmful deposit, treatment or disposal, etc., of waste4

1

Subject to paragraphs (2) and (3) a person shall not—

C1a

deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence;

C2b

treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of—

i

in or on any land, or

ii

purports to be signed by an authorised officer, and

b

states that payment of a fixed penalty was or was not received by a date specified in the certificate,

is evidence of the facts stated.

13

Article 22C (use of fixed penalty receipts by a district council) applies in relation to amounts received by a council under this Article as it applies in relation to amounts received under Article 22A.

14

In this Article—

“authorised officer” means an officer of the enforcing authority who is authorised in writing by the enforcing authority for the purposes of this Article;
“enforcing authority” means—
1. a
  the Department; and
2. b
  in relation to an offence committed within its district, a district council.

12

If within the statutory period beginning with the day on which a copy of the draft is laid before the Assembly, the Assembly so resolves, no further proceedings shall be taken thereon but without prejudice to the laying before the Assembly of a new draft.

13

A code of practice issued under paragraph (9) shall be admissible in evidence and if any provision of such a code appears to the court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.

F7514

In this Article—

“business” includes the undertaking of a canteen, club, school, hospital or institution, whether carried on for profit or not, and any undertaking or activity carried on by a district council;
“catering waste” means all waste food, including used cooking oil, originating in restaurants, catering facilities and kitchens, including central kitchens and household kitchens;
“drain”, “lateral drain”, “public sewer” and “sewer” have the same meanings as in Article 2 of the Water and Sewerage Services (Northern Ireland) Order 2006;
“food business” means an undertaking, whether carried on for profit or not, and whether public or private, carrying out any activity related to the processing, distribution, preparation or sale of food.

14

F15. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16Fixed penalty notices for certain offences under Article 5(8)5A

1

This Article applies where it appears to the Department that a person has failed to comply with a duty to furnish documents to the Department imposed under regulations made at any time under Article 5(7).

2

The Department may serve on that person a notice offering him the opportunity of discharging any liability to conviction for an offence under Article 5(8) by payment of a fixed penalty.

3

Where a person is given a notice under this Article in respect of an offence—

a

no proceedings may be instituted for that offence before expiration of the period of 14 days following the date of the notice; and

b

he may not be convicted of that offence if he pays the fixed penalty before the expiration of the period.

4

A notice under this Article must give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence.

5

A notice under this Article must also state—

a

the period during which, by virtue of paragraph (3), proceedings will not be taken for the offence;

b

the amount of the fixed penalty; and

c

the person to whom and the address at which the fixed penalty may be paid.

6

7

Where a letter is sent in accordance with paragraph (6) payment is to be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.

8

The form of a notice under this Article is to be such as the Department may by order prescribe.

9

The fixed penalty payable to the Department under this Article is, subject to paragraph (10), £300.

10

The Department may by order substitute a different amount for the amount for the time being specified in paragraph (9).

11

The Department may make provision for treating a fixed penalty as having been paid if a lesser amount is paid before the end of a period specified by the Department.

12

In any proceedings a certificate which—

a

purports to be signed by an authorised officer; and

b

states that payment of a fixed penalty was or was not received by a date specified in the certificate,

is evidence of the facts stated.

13

In this Article “authorised officer” means an officer of the Department who is authorised in writing by the Department for the purposes of this Article.

F52Provisions relating to offences under Articles 4 and 5

Annotations:

Amendments (Textual)

F52

Art. 5B and preceding cross-heading inserted (25.6.2007) by Waste (Amendment) (Northern Ireland) Order 2007 (S.I. 2007/611 (N.I. 3)), arts. 1(3), 6(1) (with art. 6(2)); S.R. 2007/294, art. 2, Sch.

Article 4 and 5 offences: investigation and enforcement costs5B

1

This Article applies where a person is convicted of—

a

an offence under Article 4 in respect of a contravention of paragraph (1) of that Article; or

b

an offence under Article 5 in respect of a failure to comply with paragraph (1) of that Article.

2

The court by or before which the offender is convicted may make an order requiring him to pay to the Department a sum which appears to the court not to exceed the costs arising from—

a

investigations of the Department which resulted in the conviction; and

b

the seizure by the Department under Article 5E of a vehicle involved in the offence.

3

The costs arising from the seizure of a vehicle as specified in paragraph (2)(b) may include the cost of disposing of the contents of the vehicle.

4

The power of a court to make an order under this Article is in addition to its power to make an order under section 2 of the Costs in Criminal Cases Act (Northern Ireland) 1968 (award of costs against accused).

F17Article 4 offences: clean-up costs5C

1

Paragraph (2) applies where a person is convicted of an offence under Article 4 in respect of a contravention of paragraph (1) of that Article consisting of the deposit or disposal of controlled waste.

2

The reference in Article 14(1) of the Criminal Justice (Northern Ireland) Order 1994 (compensation orders) to loss or damage resulting from the offence includes costs incurred or to be incurred by the owner or occupier of the land, the Department or a district council in—

a

removing the waste deposited or disposed of in or on the land;

b

taking other steps to eliminate or reduce the consequences of the deposit or disposal; or

c

both.

3

Subject to paragraph (4), in relation to the costs referred to in paragraph (2), the reference in Article 14(11) of the Criminal Justice (Northern Ireland) Order 1994 (limit on amount payable) to £5000 is instead to be construed as a reference to the amount of those costs (or, if the costs have not yet been incurred, the likely amount).

4

Paragraph (3) does not apply where a person (other than an establishment or undertaking) is convicted of a relevant offence within the meaning of Article 4.

For the purposes of this Article, where a vehicle or its contents have been seized under Article 5E in connection with the offence referred to in paragraph (1), any transfer by the offender after the seizure and before his conviction of any of his rights in the vehicle or its contents is of no effect.

11

In this Article “vehicle” includes any mobile plant.

and accordingly requirements may be imposed in the licence which are to be complied with before the activities which the licence authorises have begun or after the activities which the licence authorises have ceased.

4

Conditions may require the holder of a licence to carry out works or do other things notwithstanding that he is not entitled to carry out the works or do the thing and any person whose consent would be required shall grant, or join in granting, the holder of the licence such rights in relation to the land as will enable the holder of the licence to comply with any requirements imposed on him by the licence.

5

Conditions may relate, where waste other than controlled waste is to be treated, kept or disposed of, to the treatment, keeping or disposal of that other waste.

6

Regulations may make provision as to the conditions which are, or are not, to be included in a licence.

7

Any person who—

a

intentionally makes a false entry in any record required to be kept under any condition of a licence, or

b

with intent to deceive, forges or uses a licence or makes or has in his possession a document so closely resembling a licence as to be likely to deceive,

shall be guilty of an offence and shall be liable—

i

on summary conviction, to a fine not exceeding the statutory maximum;

ii

on conviction on indictment, to imprisonment for a term not exceeding 2 years, or to a fine or to both.

8

A licence may not be surrendered by the holder except in accordance with Article 13.

9

A licence is not transferable by the holder but the Department may transfer it to another person under Article 14.

10

A licence shall continue in force until it is revoked entirely by the Department under Article 12 or it is surrendered or its surrender is accepted under Article 13.

Compensation where rights granted pursuant to Article 6(4) or 12(9)7

1

This Article applies in any case where—

a

the holder of a licence is required—

i

by the conditions of the licence; or

ii

by a requirement imposed under Article 12(8),

to carry out any works or do any other thing which he is not entitled to carry out or do;

b

a person whose consent would be required has, pursuant to the requirements of Article 6(4) or 12(9), granted, or joined in granting, to the holder of the licence any rights in relation to any land; and

c

those rights, or those rights together with other rights, are such as will enable the holder of the licence to comply with any requirements imposed on him by the licence or, as the case may be, under Article 12(8).

2

In a case where this Article applies, any person who has granted, or joined in granting, the rights in question shall be entitled to be paid compensation under this Article by the holder of the licence.

3

Regulations shall provide for the descriptions of loss and damage for which compensation is payable under this Article.

4

Regulations may—

a

provide for the basis on which any amount to be paid by way of compensation under this Article is to be assessed;

b

without prejudice to the generality of paragraph (3) and sub-paragraph (a), provide for compensation under this Article to be payable in respect of—

i

any effect of any rights being granted, or

ii

any consequence of the exercise of any rights which have been granted;

c

provide for the times at which any entitlement to compensation under this Article is to arise or at which any such compensation is to become payable;

d

provide for the persons or bodies by whom, and the manner in which, any dispute—

i

as to whether any, and (if so) how much and when, compensation under this Article is payable; or

ii

as to the person to or by whom it shall be paid,

is to be determined;

e

provide for when or how applications may be made for compensation under this Article;

f

without prejudice to the generality of sub-paragraph (d), provide for when or how applications may be made for the determination of any such disputes as are mentioned in that sub-paragraph;

g

without prejudice to the generality of sub-paragraphs (e) and (f), prescribe the form in which any such applications as are mentioned in those sub-paragraphs are to be made;

h

make provision similar to any provision made by Article 18 of the [1982 NI 9.] Land Compensation (Northern Ireland) Order 1982;

i

include such incidental, supplemental, consequential or transitional provision as the Department considers appropriate.

Grant of licences8

1

An application for a licence shall be made to the Department and shall be made on a form provided for the purpose by the Department and accompanied by such information as the Department reasonably requires and the fee payable under Article 15.

2

Where an applicant for a licence fails to provide the Department with any information required under paragraph (1), the Department may refuse to proceed with the application, or refuse to proceed with it until the information is provided.

C83

A licence shall not be granted for a use of land, plant or equipment for which planning permission is required under the F80Planning Act (Northern Ireland) 2011 or consent under theF20 Water (Northern Ireland) Order 1999 is required unless such planning permission is in force or such consent has been granted in relation to that use of the land.

4

Subject to paragraphs (3) and (5), the Department shall not refuse an application for a licence which has been duly made if it is satisfied that the applicant is a fit and proper person unless it is satisfied that such refusal is necessary for the purpose of preventing—

a

pollution of the environment;

b

harm to human health; or

c

serious detriment to the amenities of the locality;

but sub-paragraph (c) is inapplicable where planning permission is in force in relation to the use to which the land will be put under the licence.

5

Where the Department proposes to grant a licence, the Department shall, before it does so,—

a

refer the proposal toF21 the Health and Safety Executive for Northern Ireland and to such other body or person as the Department considers appropriate; and

b

consider any representations about the proposal whichF21 the Executive or any such body or person makes to it during the allowed period.

6

If within the period of 4 months from the date on which the Department received an application for the grant of a licence, or within such longer period as the Department and the applicant may at any time agree in writing, the Department has neither granted the licence in consequence of the application nor given notice to the applicant that the Department has refused the application, the Department shall be deemed to have refused the application.

7

Paragraph (6)—

a

shall not have effect in any case where, under paragraph (2), the Department refuses to proceed with the application in question, and

b

shall have effect in any case where, under paragraph (2), the Department refuses to proceed with it until the required information is provided, with the substitution for the period of 4 months there mentioned of the period of 4 months from the date on which the Department received the information.

8

The period allowed toF21 the Executive or any body or person for the making of representations under paragraph (5) about a proposal is the period of 28 days from the date on which the proposal is received byF21 Executive, the body or, as the case may be, the person, or such longer period as the Department and theF21 Executive, the body or, as the case may be, the person, agree in writing.

9

This Article shall have effect subject to Article 9.

Consultation before the grant of certain licences9

1

This Article applies where an application for a licence has been duly made to the Department, and the Department proposes to issue a licence subject (by virtue of Article 6(4)) to any condition which might require the holder of the licence to—

a

carry out any works, or

b

6

Before the Department issues the licence it shall, subject to paragraph (7), consider any representations made in relation to the condition in question, or its possible effects, by any person on whom a notice has been served under paragraph (2).

7

Paragraph (6) does not require the Department to consider any representations made by a person after the date specified in the notice served on him under paragraph (2) as the date by which his representations in relation to the condition or its possible effects are to be made.

This Article shall have effect subject to Article 11.

The Department may postpone the service of any notice or the consideration of any representations required under this Article so far as the Department considers that by reason of an emergency it is appropriate to do so.

Revocation and suspension of licencesI3 C412

1

Where a licence is in force and it appears to the Department—

a

that the holder of the licence has ceased to be a fit and proper person by reason of his having been convicted of a prescribed offence; or

b

that—

i

the continuation of the activities authorised by the licence would cause pollution of the environment or harm to human health or would be seriously detrimental to the amenities of the locality affected; and

ii

the pollution, harm or detriment cannot be avoided by modifying the conditions of the licence;

the Department may exercise, as it thinks fit, either of the powers conferred by paragraphs (3) and (4).

2

Where a licence is in force and it appears to the Department that the holder of the licence has ceased to be a fit and proper person by reason of the management of the activities authorised by the licence having ceased to be in the hands of a technically competent person, the Department may exercise the power conferred by paragraph (3).

3

The Department may, under this paragraph, revoke the licence so far as it authorises the carrying on of the activities specified in the licence or such of them as the Department specifies in revoking the licence.

4

The Department may, under this paragraph, revoke the licence entirely.

5

A licence revoked under paragraph (3) shall cease to have effect to authorise the carrying on of the activities specified in the licence or, as the case may be, the activities specified by the Department in revoking the licence but shall not affect the requirements imposed by the licence which the Department, in revoking the licence, specify as requirements which are to continue to bind the licence holder.

6

Where a licence is in force and it appears to the Department—

a

that the holder of the licence has ceased to be a fit and proper person by reason of the management of the activities authorised by the licence having ceased to be in the hands of a technically competent person; or

b

that—

i

serious pollution of the environment or serious harm to human health has resulted from, or is about to be caused by, the activities to which the licence relates or the happening or threatened happening of an event affecting those activities; and

ii

b

on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine or to both.

14

Any revocation or suspension of a licence or requirement imposed during the suspension of a licence under this Article shall be effected by notice served on the holder of the licence and the notice shall state the time at which the revocation or suspension or the requirement is to take effect and, in the case of suspension, the period at the end of which, or the event on the occurrence of which, the suspension is to cease.

15

If the Department is of the opinion that proceedings for an offence under paragraph (12) or (13) would afford an ineffectual remedy against a person who has failed to comply with any requirement imposed under paragraph (8), the Department may take proceedings in the High Court for the purpose of securing compliance with the requirement.

Surrender of licences13

1

A licence may be surrendered by its holder to the Department but, in the case of a site licence, only if the Department accepts the surrender.

2

The following provisions apply to the surrender and acceptance of the surrender of a site licence.

3

The holder of a site licence who desires to surrender it shall make an application for that purpose to the Department on a form provided by the Department for the purpose, giving such information and accompanied by such evidence as the Department reasonably requires and accompanied by the fee payable under Article 15.

4

On receiving an application for the surrender of a site licence the Department—

a

shall inspect the land to which the licence relates, and

b

may require the holder of the licence to furnish to it further information or further evidence.

5

The Department shall determine whether it is likely or unlikely that the condition of the land, so far as that condition is the result of the use of the land for the treatment, keeping or disposal of waste (whether or not in pursuance of the licence), will cause pollution of the environment or harm to human health.

6

In determining the matters referred to in paragraph (5) the Department shall—

a

consult with such body or person as the Department considers appropriate; and

b

consider any representations which any such body or person makes to it during a period of 28 days from the date of the consultation or such longer period as the Department and the body or person agree in writing.

7

If the Department is satisfied that the condition of the land is unlikely to cause the pollution or harm mentioned in paragraph (5), the Department shall accept the surrender of the licence; but otherwise the Department shall refuse to accept it.

8

Where the surrender of a licence is accepted under this Article the Department shall issue to the applicant, with the notice of its determination, a certificate (a “certificate of completion”) stating that it is satisfied as mentioned in paragraph (7) and, on the issue of that certificate, the licence shall cease to have effect.

9

If within the period of 3 months from the date on which the Department receives an application to surrender a licence, or within such longer period as the Department and the applicant may at any time agree in writing, the Department has neither issued a certificate of completion nor given notice to the applicant that the Department has refused the application, the Department shall be deemed to have refused the application.

Transfer of licences14

1

A licence may be transferred to another person in accordance with paragraphs (2) to (6) and may be so transferred whether or not the licence is partly revoked or suspended under any provision of this Order.

2

Where the holder of a licence desires that the licence be transferred to another person ( “the proposed transferee”) the licence holder and the proposed transferee shall jointly make an application to the Department for a transfer of the licence.

3

An application under paragraph (2) for the transfer of a licence shall be made on a form provided by the Department for the purpose, accompanied by such information as the Department may reasonably require and the fee payable under Article 15 and the licence.

4

If, on such an application, the Department is satisfied that the proposed transferee is a fit and proper person the Department shall effect a transfer of the licence to the proposed transferee.

5

The Department shall effect a transfer of a licence under this Article by causing the licence to be endorsed with the name and other particulars of the proposed transferee as the holder of the licence from such date specified in the endorsement as may be agreed with the applicants.

6

If within the period of 2 months from the date on which the Department receives an application for the transfer of a licence, or within such longer period as the Department and the applicants may at any time agree in writing, the Department has neither effected a transfer of the licence nor given notice to the applicants that the Department has refused the application, the Department shall be deemed to have refused the application.

Fees and charges for licences15

1

There shall be charged by and paid to the Department, in respect of applications for licences or relevant applications in respect of licences, and in respect of the holding of licences, such fees and charges as may be provided for by a scheme under paragraph (2).

2

The Department may make, and from time to time revise, a scheme specifying—

a

fees payable in respect of applications for licences or relevant applications in respect of licences, and

b

i

the land or mobile plant to which the licence relates; or

ii

any equipment on the land to which the licence relates;

and any amount so ordered to be paid to the Department is enforceable in the same manner as any other sum adjudged to be paid by a conviction of that court.

6

If it appears to the Department that the holder of a licence has failed to pay a charge due in consideration of the subsistence of the licence, the Department may, by notice in writing served on the holder, revoke the licence so far as it authorises the carrying on of the activities specified in the licence.

7

Article 12(5) applies for the purposes of paragraph (6) as it applies for the purposes of paragraph (3) of that Article.

to revoke the licence entirely; and

c

to suspend the licence so far as it authorises the carrying on of the activities specified in the licence or, as the case may be, the activities specified by the Department in suspending the licence.

6

If the Department is of the opinion that revocation or suspension of the licence, whether entirely or to any extent, under paragraph (5) would afford an ineffectual remedy against a person who has failed to comply with any requirement imposed under paragraph (4)(a), the Department may take proceedings in the High Court for the purpose of securing compliance with the requirement.

7

Where a licence is revoked or suspended under paragraph (5), paragraphs (5) and (14) or, as the case may be, paragraphs (7) to (14) of Article 12 shall apply with the necessary modifications as they respectively apply to revocations or suspensions of licences under that Article.

Appeals from decisions with respect to licences17

1

Where—

a

an application for a licence or a modification of the conditions of a licence is refused;

b

a licence is granted subject to conditions;

c

the conditions of a licence are modified;

d

a licence is suspended;

e

a licence is revoked under Article 12 or 16;

f

an application to surrender a licence is refused; or

g

an application for the transfer of a licence is refused;

then, except in the case of an application for a transfer, the applicant for the licence or, as the case may be, the holder or former holder of it may appeal from the decision to the Planning Appeals Commission and, in the case of an application for a transfer, the proposed transferee may do so.

2

Part I of Schedule 2 shall have effect with respect to appeals under paragraph (1).

3

On receipt of an appeal under paragraph (1) the Planning Appeals Commission shall give notice of the appeal to the Department.

4

Where, on such an appeal, the Planning Appeals Commission determines that the decision of the Department shall be altered the Department shall give effect to the determination.

5

While an appeal is pending in a case falling within paragraph (1)(c) or (e), the decision in question shall, subject to paragraph (7), be ineffective; and if the decision in question is confirmed or the appeal is withdrawn the decision shall become effective from the end of the day on which the decision is confirmed or the appeal is withdrawn.

6

Where an appeal is made in a case falling within paragraph (1)(d), the bringing of the appeal shall have no effect on the decision in question.

7

Paragraph (5) shall not apply to a decision modifying the conditions of a licence under Article 10 or revoking a licence under Article 12 or 16 in the case of which the notice effecting the modification or revocation includes a statement that in the opinion of the Department it is necessary for the purpose of preventing or, where that is not practicable, minimising pollution of the environment or harm to human health that that paragraph should not apply.

8

Where the decision under appeal is one falling within paragraph (7) or is a decision to suspend a licence, if, on the application of the holder or former holder of the licence, the Planning Appeals Commission determines that the Department acted unreasonably in excluding the application of paragraph (5) or, as the case may be, in suspending the licence, then—

a

if the appeal is still pending at the end of the day on which the determination is made, paragraph (5) shall apply to the decision from the end of that day; and

b

the holder or former holder of the licence shall be entitled to recover compensation from the Department in respect of any loss suffered by him in consequence of the exclusion of the application of that paragraph or the suspension of the licence;

and any dispute as to a person's entitlement to such compensation or as to the amount of it shall be determined by arbitration.

9

Regulations may make provision with respect to appeals under this Article and in particular as to the period within which and the manner in which appeals are to be brought.

Offences of making false or misleading statements or false entries18

1

A person who—

a

in purported compliance with a requirement to furnish any information imposed by or under any provision of this Part, or

b

for the purpose of obtaining for himself or another any grant of a licence, any modification of the conditions of a licence, any acceptance of the surrender of a licence or any transfer of a licence,

makes a statement which he knows to be false or misleading in a material particular, or recklessly makes any statement which is false or misleading in a material particular, shall be guilty of an offence.

2

A person who intentionally makes a false entry in any record required to be kept by virtue of a licence shall be guilty of an offence.

3

A person guilty of an offence under this Article shall be liable—

a

on summary conviction, to a fine not exceeding the statutory maximum; and

b

on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.

Collection, disposal or treatment of controlled waste

Waste management strategyF2519

1

The Department shall have a waste management strategy containing its policies in relation to the recovery and disposal of waste in Northern Ireland.

F262

The Department—

a

shall review the waste management strategy at least every sixth year;

b

may from time to time modify the waste management strategy;

but this paragraph shall not apply to so much of a waste management strategy as relates to the matters mentioned in paragraphs 7(b), (c), (d) and 8 of Part 2 of Schedule 3.

3

The waste management strategy shall consist of a statement which relates to the whole of Northern Ireland.

F274

The waste management strategy:-

a

shall include a statement of the Department's policies for attaining the objectives set out in Part 1 Schedule 3;

b

shall include the matters set out in Part 2 of that Schedule; and

c

may include the matters set out in Part 3 of that Schedule.

F284A

Steps taken before the coming into operation of this paragraph in relation to the waste management strategy may be steps for the purposes of Articles 19, 19A, 19B and 19C.

5

In preparing the waste management strategy the Department—

a

shall consult district councils and such other bodies or persons appearing to it to be representative of the interests of industry as it considers appropriate, and may consult such other bodies or persons as it considers appropriate;

b

may carry out a survey or investigation into—

i

the kinds or quantities of waste which it appears to it is likely to be situated in Northern Ireland,

ii

the facilities which are or appear to it likely to be available or needed in Northern Ireland for recovering or disposing of any such waste,

iii

any other matter which the Department considers appropriate in connection with its preparation of the strategy.

6

Before carrying out a survey or investigation under paragraph (5)(b), the Department shall consult such bodies or persons appearing to it to be representative of the interests of industry as it may consider appropriate, and shall consult such other bodies or persons as it may consider appropriate.

7

The Department shall make its findings available to any bodies or persons it consults in accordance with paragraph (5)(a) or (6).

F298

The Department shall ensure that the waste management strategy conforms to the strategy for the reduction of biodegradable waste going to landfill required by section 20(1) of the Waste and Emissions Trading Act 2003.

F35Application of public participation procedures19A

1

Articles 19B and 19C apply to the modification of the waste management strategy as they apply to the preparation of such a strategy.

2

Articles 19B and 19C do not apply to—

a

a waste management strategy designed for the sole purpose of serving national defence or prepared in case of civil emergency; or

b

a waste management strategy for which a public participation procedure is carried out under the Environmental Assessment of Plans and Programmes Regulations (Northern Ireland) 2004.

Public participation procedures19B

1

As soon as reasonably practicable after preparing proposals for the waste management strategy the Department shall—

a

send a copy of the proposals to the persons or bodies mentioned in Article 19(5)(a);

b

take such steps as it considers appropriate to bring the proposals to the attention of the persons who in its opinion—

i

are, or are likely to be, affected by the strategy, or

ii

have an interest in the strategy;

c

inform the public consultees of the address (which may include a website)—

i

at which a copy of the proposals may be viewed,

ii

from which a copy of the proposals may be obtained;

d

invite the persons or bodies mentioned in Article 19(5)(a) and the public consultees to express their opinion on the proposals, specifying the address to which, and the period within which, opinions must be sent.

2

The period referred to in paragraph (1) (d) shall be of such length as will ensure that the persons or bodies mentioned in Article 19(5)(a) and the public consultees are given an early and effective opportunity to express their opinion on the proposals.

3

The Department shall keep a copy of the proposals for inspection by the public at all reasonable times free of charge.

4

Nothing in paragraph (1) (c) requires the Department to provide copies of the proposals free of charge; but where a charge is made, it shall be of a reasonable amount.

Procedures following public participation19C

1

Before decisions on the waste management strategy are made the Department shall take account of any opinions expressed in accordance with Article 19B(1)(d).

2

As soon as reasonably practicable after making decisions on the waste management strategy the Department shall—

a

inform the persons or bodies mentioned in Article 19(5)(a) and the public consultees of the matters set out in paragraph (4);

b

take such steps as it considers appropriate to bring the matters in paragraph (4) to the attention of the public;

c

if it has adopted the waste management strategy, make a copy of the strategy available for inspection by the public at all reasonable times and free of charge.

3

Nothing in paragraph (2)(c) requires the Department to provide copies of the adopted waste management strategy free of charge, but where a charge is made, it shall be of a reasonable amount.

4

The matters are—

a

the decisions made by the Department on the waste management strategy;

b

the reasons and considerations upon which those decisions are based; and

c

information about the public participation procedures under Article 19B.

contribute towards the cost incurred by another person in providing or maintaining pipes or associated works connecting with pipes provided by the council under sub-paragraph (a).

F306

Articles 220 and 240 of the Water and Sewerages Services (Northern Ireland) Order 2006 shall apply in relation to pipes and associated works provided or to be provided under paragraph (5)(a) as they apply in relation to pipes and associated works for the purpose of Article 220 of that Order but as if for any reference to the relevant undertaker there were substituted a reference to the district council in question.

7

A district council may contribute towards the cost incurred by another person in providing or maintaining plant or equipment intended to deal with household, commercial or industrial waste before it is collected under arrangements made by the council under paragraph (1) or (2).

8

Anything collected under arrangements made by a district council under this Article shall belong to the council and may be dealt with accordingly.

F68Separate collection of food waste20A

1

This Article applies when a district council is making an arrangement in accordance with Article 20(1)(a).

2

A district council shall, from 1st April 2015, take such steps as the council considers reasonable to promote separate collection of food waste (including the making of arrangements for the provision of a receptacle which enables the separate collection of food waste from every domestic property in its area).

3

A district council shall, from 1st April 2017, arrange for there to be provided to the occupier of every domestic property in its area—

a

a receptacle which enables the separate collection of food waste from the property; or

b

where a district council is satisfied that the amount of food waste that will be collected is not substantially less than would be collected in a receptacle provided under paragraph (a), a receptacle which enables the occupier to present food waste and other bio-waste for separate collection.

4

In this Article—

“domestic property” means a building or self-contained part of a building which is used wholly for the purposes of living accommodation;
“receptacle” has the same meaning as in Article 21(10).

the person to whom and the address at which the fixed penalty may be paid.

6

7

Where a letter is sent in accordance with paragraph (6) payment is to be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.

8

The form of a notice under this Article is to be such as the Department may by order prescribe.

9

In any proceedings a certificate which—

a

purports to be signed on behalf of the chief finance officer of the council, and

b

states that payment of a fixed penalty was or was not received by a date specified in the certificate,

is evidence of the facts stated.

10

In this Article—

“authorised officer”, in relation to a council, means—
1. a
  an employee of the council who is authorised in writing by the council for the purposes of giving notices under this Article;
2. b
  any person who, in pursuance of arrangements made with the council, has the function of giving such notices and is authorised in writing by the council to perform that function;
3. c
  any employee of such a person who is authorised in writing by the council for the purpose of giving such notices;
“chief finance officer”, in relation to a council, means the person having responsibility for the financial affairs of the council.

Amount of fixed penalty under Article 22A22B

1

This Article applies in relation to a fixed penalty payable to a district council in pursuance of a notice under Article 22A.

2

The amount of the fixed penalty is £100.

3

The council may make provision for treating the fixed penalty as having been paid if a lesser amount is paid before the end of a period specified by the council.

4

The Department may by regulations make provision in connection with the power conferred on councils under paragraph (3) and such regulations may (in particular) restrict the extent to which, and the circumstances in which, a council can make provision under that paragraph.

5

The Department may by order substitute a different amount for the amount for the time being specified in paragraph (2).

the kinds and quantities of controlled waste which the council expects to be disposed of within its district during that period;

iv

the methods and the respective priorities for the methods by which in the opinion of the council controlled waste in its district should be disposed of or treated during that period;

v

the sites and equipment which persons are providing and which during that period are expected to provide for disposal of controlled waste; and

vi

the estimated costs of the methods of disposal or treatment provided for in the plan;

but regulations may modify sub-paragraph (b) and may make provision requiring district councils to take into account in preparing plans and any modifications of plans under this Article such factors as may be prescribed.

4

In considering what information to include in the plan under paragraph (3)(b)(iv) the district council shall have regard to the desirability, where reasonably practicable, of giving priority to recovering waste.

5

A district council shall—

a

in preparing the plan and any modification of it, consult—

i

the Department; and

ii

in a case where provisions of the plan or modification relate to the taking of waste for disposal or treatment into the district of another district council, that other council; and

iii

in any case, such persons as the council considers it appropriate to consult from among persons who in the opinion of the council are or are likely to be, or are representative of persons who are or are likely to be, engaged by way of trade or business in the collection, disposal or treatment of controlled waste situated in the district of the council; and

b

before finally determining the content of the plan or modification, take, subject to paragraph (6), such steps as in the opinion of the council will—

i

give adequate publicity in its district to the plan or modification; and

ii

provide members of the public with opportunities of making representations to the council about it;

and consider any representations made by the public and make any change in the plan or modification which the council considers appropriate.

6

No steps need be taken under paragraph (5)(b) in respect of a modification which in the opinion of the district council is such that no person will be prejudiced if those steps are not taken.

7

Without prejudice to paragraph (5), a district council shall, in preparing the plan and any modification of it, consider, in consultation with such persons as the council considers appropriate and as agree to participate in the consultations—

a

what arrangements can reasonably be expected to be made for recovering waste; and

b

what provisions should be included in the plan for that purpose.

8

A district council shall not finally determine the content of the plan or modification in a case falling within paragraph (5)(a)(ii) except with the consent of the other district council or, if the other council withholds its consent, with the consent of the Department.

9

A district council shall, before finally determining the content of the plan or modification, send a copy of it in draft to the Department for the purpose of enabling the Department to determine whether paragraph (3) has been complied with; and, if the Department gives any directions to the council for securing compliance with that paragraph, the council shall comply with the direction.

10

When a district council has finally determined the content of the plan or a modification the council shall—

a

take such steps as in the opinion of the council will give adequate publicity in its district to the plan or modification; and

b

send to the Department a copy of the plan or, as the case may be, particulars of the modification.

11

Each district council shall keep a copy of the plan and particulars of any modifications to it available at all reasonable times at its principal offices for inspection by members of the public free of charge and shall supply a copy of the plan and of the particulars of any modifications to it to any person who requests one, on payment by that person of such reasonable charge as the council requires.

12

The Department may give to any district council directions as to the time by which the council is to perform any function imposed by this Article specified in the direction; and the council shall comply with the direction.

Payments for recycling and disposal, etc., of waste24

1

Where a person other than a district council, for the purpose of recycling it, collects waste arising in the district of a district council which would fall to be collected under Article 20, the council may make to that person payments, in respect of the waste so collected, of such amounts representing its net saving of expenditure on the collection and disposal of the waste as the council determines.

2

Regulations may require district councils to make payments corresponding to the payments which are authorised by paragraph (1) to such persons in such circumstances and in respect of such descriptions or quantities of waste as are specified in the regulations.

3

For the purposes of paragraph (1)—

a

the net saving of expenditure of a district council on the disposal of any waste collected for recycling is the amount of the expenditure which the council would, but for the collection, have incurred in having it disposed of less any amount payable by the council to any person in consequence of the collection for recycling (instead of the disposal) of the waste; and

b

the net saving of expenditure of a district council on the collection of any waste not falling to be collected by it is the amount of the expenditure which the council would, if it had had to collect the waste, have incurred in collecting it.

4

Regulations shall make provision for the determination of the net saving of expenditure for the purposes of paragraphs (1) and (2).

anything delivered to the council by another person in the course of using the facilities shall belong to the council and may be dealt with accordingly.

Powers for recycling waste26

1

A district council may make arrangements to do such things as the council considers appropriate for the purpose of—

a

enabling waste belonging to the council, or belonging to another person who requests the council to deal with it under this Article, to be recycled, or

b

enabling substances to be reclaimed from such waste; or

c

enabling such waste to be used for the purpose of producing from it heat or electricity or gas.

2

Without prejudice to the powers of district councils apart from this Article, a district council may—

a

buy or otherwise acquire waste with a view to its being recycled or to the reclamation of substances from it; and

b

use, sell or otherwise dispose of waste belonging to the council or anything produced from such waste.

Power of Department to require waste to be accepted, treated, disposed of or delivered27

1

The Department may, by notice, direct the holder of any waste management licence to accept and keep, or accept and treat or dispose of, controlled waste at specified places on specified terms.

2

The Department may, by notice, direct any person who is keeping controlled waste F32in or on any land to deliver the waste to a specified person on specified terms with a view to its being treated or disposed of by that other person.

3

A direction under paragraph (1) or (2) may impose a requirement as respects waste of any specified kind or as respects any specified consignment of waste.

in order to remove or prevent pollution of land, water or air or harm to human health it is necessary that the waste be forthwith removed or other steps taken to eliminate or reduce the consequences of the deposit or both; or

b

there is no occupier of the land F34or the occupier cannot be found without the council incurring unreasonable expense; or

c

the occupier neither made nor knowingly permitted the deposit of the waste;

the council may remove the waste from the land or take other steps to eliminate or reduce the consequences of the deposit or, as the case may require, to remove the waste and take those steps.

9

Where a district council exercises any of the powers conferred on it by paragraph (8) it may recover the cost incurred by it in removing the waste or taking the steps or both and in disposing of the waste—

a

in a case falling within paragraph (8)(a), from the occupier of the land unless he proves that he neither made nor knowingly caused nor knowingly permitted the deposit of the waste,

b

in any case, from any person who deposited or knowingly caused or knowingly permitted the deposit of any of the waste;

except such of the cost as the occupier or that person shows was incurred unnecessarily.

10

Any waste removed by a district council under paragraph (8) shall belong to the council and may be dealt with accordingly.

the requirement mentioned in sub-paragraph (a) has been quashed on the ground specified in paragraph (3)(a) of that Article.

5

Paragraphs (2) to (7) of Article 28 apply in relation to requirements imposed under this Article on the owner of the land as they apply in relation to requirements imposed under that Article on the occupier of the land but as if in paragraph (3) there were inserted after sub-paragraph (a)—

aa

in order to comply with the requirement the appellant would be required to enter the land unlawfully; or

Interference with waste sites and receptacles for waste29

1

No person shall sort over or disturb—

a

anything deposited at a place for the deposit of waste provided by a district council or by a waste disposal contractor under arrangements made with a district council;

b

anything deposited in a receptacle for waste, whether for public or private use, provided by a district council or by a waste disposal contractor under arrangements made with a district council or by a holder of a waste management licence; or

c

the contents of any receptacle for waste which, in accordance with a requirement under Articles 21 or 22, is placed on any road or in any other place with a view to its being emptied;

of activities authorised under the regulations or of activities by virtue of carrying on which persons are subject to provisions of the regulations, or

ii

of persons who carry on activities authorised by virtue of the regulations or who are subject to provisions of the regulations,

and for the recovery from persons falling within head (ii) of the costs incurred by the Department in performing functions conferred upon the Department by the regulations;

b

as to the recovery of expenses or other charges for the treatment, keeping or disposal or the re-delivery ofF38 hazardous waste under the regulations;

c

as to appeals from decisions of the Department under the regulations to the Planning Appeals Commission for determination.

4

F40. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Waste other than controlled waste31

1

F41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

A person who deposits, or knowingly causes or knowingly permits the deposit of, any waste—

a

which is not controlled waste, but

b

which, if it were controlled waste, would beF42 hazardous waste,

in a case where he would be guilty of an offence under Article 4 if the waste wereF42 hazardous waste and any management licence were not in force, shall, subject to paragraph (3), be guilty of that offence and punishable as if the waste wereF42 hazardous waste.

3

No offence is committed under paragraph (2) if the act charged was done under and in accordance with any consent, licence, approval or authority granted under any statutory provision (excluding any planning permission under the F81Planning Act (Northern Ireland) 2011 .)

4

F41. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Other controls on substances, articles or waste

Power to prohibit or restrict the use, supply or storage of injurious substances or articles32

1

Regulations may prohibit or restrict—

a

the use for any purpose,

b

the supply for any purpose, and

c

the storage,

of any specified substance or article if the Department considers it appropriate to do so for the purpose of preventing the substance or article from causing pollution of the environment or harm to human health or to the health of animals or plants.

2

Regulations under this Article may—

a

enable the Department to direct that any substance or article whose use, supply or storage is prohibited or restricted is to be treated as waste or controlled waste of any description and in relation to any such substance or article—

i

to apply, with or without modification, prescribed provisions of this Part; or

ii

to direct that it be disposed of or treated in accordance with the direction;

b

confer powers corresponding to those conferred by Article 44 on persons authorised for any purpose of the regulations by the Department or on any district council; and

c

include such other incidental and supplemental, and such transitional provisions, as the Department considers appropriate.

3

Subject to paragraph (4), before it makes any regulations under this Article the Department shall—

a

publish in the Belfast Gazette and in any other publication which the Department considers appropriate, a notice indicating the effect of the proposed regulations and specifying—

i

the date on which it is proposed that the regulations will come into operation;

ii

a place where a draft of the proposed regulations may be inspected free of charge by members of the public during office hours; and

iii

a period of not less than 14 days from the date on which the notice is first published during which representations in writing may be made to the Department about the proposed regulations; and

b

consider any representations which are made in accordance with the notice.

4

Regulations may be made under this Article in relation to any substance or article without observing the requirements of paragraph (3) where it appears to the Department that there is an imminent risk, if those requirements are observed, that serious pollution of the environment will be caused.

5

After complying with paragraph (3) with respect to any proposed regulations, the regulations may be made either—

a

in the form of the draft mentioned in paragraph (3)(a), or

b

in that form with such modifications as the Department considers appropriate;

but regulations incorporating modifications shall not be made unless the Department is of the opinion that it is appropriate for the requirements of paragraph (3) to be disregarded.

6

Regulations under this Article may provide that a person who contravenes a specified provision of the regulations or causes or permits another person to contravene a specified provision of the regulations commits an offence and may prescribe the maximum penalty for the offence.

7

No offence under the regulations shall be made punishable with imprisonment for more than 2 years or punishable on summary conviction with a fine exceeding level 5 on the standard scale (if not calculated on a daily basis) or, in the case of a continuing offence, exceeding one-tenth of the level on the standard scale specified as the maximum penalty for the original offence.

8

In this Article—

“the environment” includes the air within buildings and the air within other natural or man-made structures above or below ground; and
“substance” includes mixtures of substances.

Power to obtain information about potentially hazardous substances33

1

For the purpose of assessing their potential for causing pollution of the environment or harm to human health, regulations may make provision for and in connection with the obtaining of relevant information relating to substances which may be specified by the Department by order for the purposes of this Article.

2

The Department shall not make an order under paragraph (1) specifying any substance—

a

which was first supplied in any member State on or after 18th September 1981; or

b

in so far as it is a regulated substance for the purposes of any relevant statutory provision.

3

Regulations under this Article may—

a

prescribe the descriptions of relevant information which are to be furnished under this Article in relation to specified substances;

b

impose requirements on manufacturers or suppliers generally to furnish information prescribed under sub-paragraph (a);

c

provide for the imposition of requirements on manufacturers or suppliers generally to furnish relevant information relating to products or articles containing specified substances in relation to which information has been furnished in pursuance of sub-paragraph (b);

d

provide for the imposition of requirements on particular manufacturers or suppliers to furnish further information relating to specified substances in relation to which information has been furnished in pursuance of sub-paragraph (b);

e

provide for the imposition of requirements on particular manufacturers to carry out tests of specified substances and to furnish information of the results of the tests;

f

authorise persons to comply with requirements to furnish information imposed on them under the regulations by means of representative persons or bodies;

g

impose restrictions on the disclosure of information obtained under this Article and provide for determining what information is, and what information is not, to be treated as furnished in confidence;

h

create offences, subject to the limitation that no offence shall be punishable with imprisonment or punishable on summary conviction with a fine exceeding level 5 on the standard scale;

i

make any district council or other body designated by the regulations responsible for the enforcement of the regulations to such extent as may be specified in the regulations;

j

include such other incidental and supplemental, and such transitional, provisions as the Department considers appropriate.

4

The Department shall have regard, in imposing or providing for the imposition of any requirement under paragraph (3)(b), (c), (d) or (e), to the cost likely to be involved in complying with the requirement.

5

In this Article—

“relevant information”, in relation to substances, products or articles, means information relating to their properties, production, distribution or use or intended use and, in relation to products or articles, to their disposal as waste;
“substance” includes mixtures of substances.

6

The statutory provisions which are relevant for the purposes of paragraph (2)(b) are the following—

theF43Manufacture and Storage of Explosives Regulations (Northern Ireland) 2006;
F53Parts 3 to 8, 12 and 16 of the Human Medicines Regulations 2012 ;
Part IV of the [1970 c. 40.] Agriculture Act 1970;
the [1971 c. 38.] Misuse of Drugs Act 1971;
Part III of the [1985 c. 48.] Food and Environment Protection Act 1985;
the [1991 NI 7.] Food Safety (Northern Ireland) Order 1991; and
the [1993 c. 12.] Radioactive Substances Act 1993 ;

and a substance is a regulated substance for the purposes of any such statutory provision in so far as any prohibition, restriction or requirement is imposed in relation to it under the statutory provision for the purposes of that statutory provision.

Publicity

Public registers34

1

Subject to Articles 35 and 36, the Department shall maintain a register containing prescribed particulars of or relating to—

a

current or recently current licences ( “licences”) granted by the Department;

b

current or recently current applications to the Department for licences;

c

applications made to the Department under Article 10 for the modification of licences;

d

notices issued by the Department under Article 10 effecting the modification of licences;

e

notices issued by the Department under Article 12 effecting the revocation or suspension of licences or imposing requirements on the holders of licences;

f

appeals under Article 17 relating to decisions of the Department;

g

certificates of completion issued by the Department under Article 13(8);

h

notices issued by the Department imposing requirements on the holders of licences under Article 16(4);

i

convictions of the holders of licences granted by the Department for any offence under this Part (whether in relation to a licence so granted or not);

j

the occasions on which the Department has discharged any function under Article 16;

k

such matters relating to the treatment, keeping or disposal of waste or any pollution of the environment caused thereby as may be prescribed;

and any other document or information required to be kept in the register under any provision of this Part.

2

Where information of any description is excluded from any register under Article 36, a statement shall be entered in the register indicating the existence of information of that description.

3

For the purposes of paragraph (1) licences are “recently” current for the period of 12 months after they cease to be in force and applications for licences are “recently” current if they relate to a licence which is current or recently current or, in the case of an application which is refused, for the period of 12 months from the date on which the Department gives notice of refusal or, as the case may be, on which the application is deemed by Article 8(6) to have been refused.

4

Each district council shall maintain a register containing prescribed particulars of such information contained in any register maintained under paragraph (1) as relates to the treatment, keeping or disposal of controlled waste in the district of the council.

5

The Department shall furnish district councils with the particulars necessary to enable them to comply with paragraph (4).

6

The Department and each district council—

a

shall secure that any register maintained under this Article is open to inspection by members of the public free of charge at all reasonable hours; and

b

shall afford to members of the public reasonable facilities for obtaining, on payment of reasonable charges, copies of entries in the register;

and, for the purposes of this paragraph, places may be prescribed at which any such registers or facilities as are mentioned in sub-paragraphs (a) or (b) are to be available or afforded to the public in pursuance of the sub-paragraph in question.

7

Registers under this Article may be kept in any form.

Exclusion from registers of information affecting national security35

1

No information shall be included in a register maintained under Article 34 (a “register”) if and so long as, in the opinion of the Secretary of State, the inclusion in the register of that information, or information of that description, would be contrary to the interests of national security.

2

The Secretary of State may, for the purpose of securing the exclusion from registers of information to which paragraph (1) applies, give to the Department directions—

a

specifying information, or descriptions of information, to be excluded from its register; or

b

specifying descriptions of information to be referred to the Secretary of State for his determination;

and no information referred to the Secretary of State in pursuance of sub-paragraph (b) shall be included in any such register until the Secretary of State determines that it should be so included.

3

The Department shall notify the Secretary of State of any information it excludes from the register in pursuance of directions under paragraph (2).

4

A person may, as respects any information which appears to him to be information to which paragraph (1) may apply, give a notice to the Secretary of State specifying the information and indicating its apparent nature; and, if he does so—

an application for, or for the modification of, a licence;

b

complying with any condition of a licence; or

c

complying with a notice under Article 44(1);

then, if the person furnishing it applies to the Department to have the information excluded from the register on the ground that it is commercially confidential (as regards himself or another person), the Department shall determine whether the information is or is not commercially confidential.

3

A determination under paragraph (2) shall be made within the period of 14 days from the date of the application and if the Department fails to make a determination within that period it shall be treated as having determined that the information is commercially confidential.

4

Where it appears to the Department that any information (other than information furnished in circumstances within paragraph (2)) which has been obtained by the Department under any provision of this Part might be commercially confidential, the Department shall—

a

give to the person to whom or whose business it relates notice that that information is required to be included in the register unless excluded under this Article; and

b

give him a reasonable opportunity—

i

of objecting to the inclusion of the information on the grounds that it is commercially confidential; and

ii

of making representations to the Department for the purpose of justifying any such objection;

and, if any representations are made, the Department shall, having taken the representations into account, determine whether the information is or is not commercially confidential.

5

Where, under paragraph (2) or (4), the Department determines that information is not commercially confidential—

a

the information shall not be entered in the register until the end of the period of 21 days from the date on which the determination is notified to the person concerned;

b

that person may appeal to the Planning Appeals Commission against the decision;

and, where an appeal is brought in respect of any information, the information shall not be entered in the register until the end of the period of 7 days from the day on which the appeal is finally determined or withdrawn.

6

Part II of Schedule 2 shall have effect with respect to appeals under paragraph (5).

7

On receipt of an appeal under paragraph (5) the Planning Appeals Commission shall give notice of the appeal to the Department.

8

Regulations may make provision with respect to appeals under this Article and in particular as to the period within which and the manner in which appeals are to be brought.

9

The Department may specify information, or descriptions of information, which the public interest requires to be included in the registers notwithstanding that the information may be commercially confidential.

10

Information excluded from a register shall be treated as ceasing to be commercially confidential for the purposes of this Article at the expiry of the period of 4 years from the date of the determination under which it was excluded; but the person who furnished it may apply to the Department for the information to remain excluded from the register on the ground that it is still commercially confidential and the Department shall determine whether or not that is the case.

11

Paragraphs (5) to (7) shall apply in relation to a determination under paragraph (10) as they apply in relation to a determination under paragraph (2) or (4).

12

The Department may, by order, substitute for the period for the time being specified in paragraph (3) such other period as the Department considers appropriate.

13

Information is, for the purposes of any determination under this Article, commercially confidential, in relation to any individual or person, if its being contained in the register would prejudice to an unreasonable degree the commercial interest of that individual or person.

Annual reports37

6

In this Article “emergency”, in relation to the transport of any controlled waste, means any circumstances in which, in order to avoid, remove or reduce any serious danger to the public or serious risk of damage to the environment, it is necessary for the waste to be transported from one place to another without the use of a registered carrier of such waste.

the relevant period from the making of the application has expired without his having been registered;

and for the purposes of this paragraph the relevant period is 2 months or, except in the case of an application for the renewal of his registration by a person who is already registered, such longer period as may be agreed between the applicant and the Department.

2

A person whose registration as a carrier of controlled waste has been revoked may appeal against the revocation to the Planning Appeals Commission.

3

Part I of Schedule 2 shall have effect with respect to appeals under paragraph (1) or (2).

4

On receipt of an appeal under paragraph (1) or (2) the Planning Appeals Commission shall give notice of the appeal to the Department.

5

Where, on such an appeal, the Planning Appeals Commission confirms the decision of the Department the Department shall not register the appellant or, as the case may be, cancel the revocation.

6

Where, on such an appeal, the Planning Appeals Commission determines that the decision of the Department shall be altered the Department shall register the applicant or, as the case may be, cancel the revocation.

7

Regulations may make provision with respect to appeals under this Article and in particular as to the period within which and the manner in which appeals are to be brought.

8

Where an appeal under this Article is made in accordance with regulations under this Article—

a

by a person whose appeal is in respect of such an application for the renewal of his registration as was made, in accordance with regulations under Article 39, at a time when he was already registered; or

b

by a person whose registration has been revoked,

that registration shall continue in force, notwithstanding the expiry of the prescribed period or the revocation, until the appeal is disposed of.

9

For the purposes of paragraph (8) an appeal is disposed of when any of the following occurs, that is to say—

a

the appeal is withdrawn;

b

the appellant is notified by the Department that the decision of the Department has been confirmed; or

c

the Department complies with any determination made by the Planning Appeals Commission to renew the appellant's registration or to cancel the revocation.

In this Article and Articles 42A and 42B “authorised officer” means an officer of the Department who is authorised in writing by the Department for the purposes of those Articles.

13

Summary proceedings for an offence under paragraph (11) may be instituted at any time within 12 months after the commission of the offence.

F47Seizure of vehicles etc: supplementary42A

1

Where under Article 42 an authorised officer or a constable seizes a vehicle or its contents (“seized property”) on behalf of the Department, the Department may remove the seized property to such a place as the Department considers appropriate.

2

The Department must deal with any seized property in accordance with regulations made by the Department.

3

Regulations under paragraph (2) may in particular include provision as to—

a

the duties of the Department in relation to the safe custody of seized property;

b

the circumstances in which the Department must return any such property to a person claiming entitlement to it;

c

the manner in which such persons, and the seized property to which they are entitled, may be determined;

d

the circumstances in which the Department may sell, destroy or otherwise dispose of seized property;

e

the uses to which the proceeds of any such sale may be put.

F673A

Regulations making provision under paragraph (3)(b)—

a

must (subject to sub-paragraph (b)) provide for seized property to be returned as mentioned in paragraph (3)(b) before the expiry of a period specified in the regulations;

b

c

4

Regulations making provision under paragraph (3)(d)—

a

b

c

may allow for the requirements in sub-paragraphs (a) and (b) to be dispensed with if the condition of the seized property requires its disposal without delay.

F48Fixed penalty notices for offences under Article 4242B

1

This Article applies where it appears to the Department that a person has failed without reasonable excuse to comply with a requirement under Article 42(2)(a) (requirement to produce authority to transport waste).

2

The Department may give that person a notice offering him the opportunity of discharging any liability to conviction for an offence under Article 42(7)(a) by payment of a fixed penalty.

3

Where a person is given a notice under this Article in respect of an offence—

a

no proceedings may be instituted for that offence before expiration of the period of 14 days following the date of the notice; and

b

he may not be convicted of that offence if he pays the fixed penalty before the expiration of the period.

4

A notice under this Article must give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence.

5

A notice under this Article must also state—

a

the period during which, by virtue of paragraph (3), proceedings will not be taken for the offence;

b

the amount of the fixed penalty; and

c

the person to whom and the address at which the fixed penalty may be paid.

6

7

Where a letter is sent in accordance with paragraph (6) payment is to be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.

8

The form of a notice under this Article must be such as the Department may by order prescribe.

9

but without prejudice to any liability arising otherwise than under this paragraph.

5

The matters which may be proved by way of defence under Article 4(7) may be proved also by way of defence to an action brought under paragraph (4).

6

In paragraph (4)—

“damage” includes the death of, or injury to, any person (including any disease and any impairment of physical or mental condition); and
“fault” has the same meaning as in the [1948 c. 23 (N.I.).] Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1948.

7

For the purposes of the following statutory provisions—

a

the [1977 NI 18.] Fatal Accidents (Northern Ireland) Order 1977,

b

the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1948; and

c

the [1989 NI 11.] Limitation (Northern Ireland) Order 1989,

any damage for which a person is liable under paragraph (4) shall be treated as due to his fault.

Supplementary provisions relating to pipes46

1

Where a district council provides pipes under F49Article 20(5)(a) or 25(3), the council shall prepare a map showing the location of the pipes and shall secure that a copy of the map is available at its principal offices for inspection by the public free of charge at all reasonable hours.

F502

Article 236(2), (3), (10) and (13) of the Water and Sewerage Services (Northern Ireland) Order 2006 shall have effect as if references to a sewer included any pipe provided as mentioned in paragraph (1) and references to a sewerage or relevant undertaker were references to a district council.

3

References to pipes in this Article include associated works.

Transitional provisions with respect to licences47

1

This Article has effect for the purposes of the transition from the provisions of Part II of the [1978 NI 19.] Pollution Control and Local Government (Northern Ireland) Order 1978 ( “the 1978 Order”) to the corresponding provisions of this Part and in this Article—

“existing disposal licence” means a disposal licence under Article 7 of the 1978 Order subsisting on the day appointed under Article 1(2) for the repeal of Articles 5 to 12 of the 1978 Order and “relevant appointed day for licences” shall be construed accordingly;
“existing disposal plan” means a plan under Article 4 of the 1978 Order subsisting on the day appointed under Article 1(2) for the repeal of that Article and “relevant appointed day for plans” shall be construed accordingly;
“existing resolution of a district council” means a resolution under Article 13 of the 1978 Order in force on the day appointed under Article 1(2) for the repeal of that Article and “relevant appointed day for resolutions” shall be construed accordingly.

2

An existing disposal licence shall, on and after the relevant appointed day for licences, be treated as a site licence and shall continue in forceF51 in accordance with Article 6(10); and accordingly it shall be variable and subject to revocation or suspension under this Part and may not be surrendered or transferred except under this Part.

3

An existing resolution of a district council shall, on and after the relevant appointed day for resolutions, have effect as if it were a waste management licence subject to the conditions specified in the resolution pursuant to Article 13(3)(d) of the 1978 Order and shall continue in forceF51 in accordance with Article 6(10); and accordingly it shall be variable and subject to revocation or suspension under this Part and may not be surrendered or transferred except under this Part.

4

An existing disposal plan of a district council shall, on and after the relevant appointed day for plans, be treated as the plan of that council under Article 23 and shall continue in force for a period of 3 years from the relevant appointed day for plans; and accordingly that Article shall have effect as if references in it to “the plan” included the existing disposal plan of that council.

This Part and radioactive substances48

Except as provided by regulations under this Article, nothing in this Part applies to radioactive waste within the meaning of the [1993 c. 12.] Radioactive Substances Act 1993; but regulations may—

a

provide for prescribed provisions of this Part to have effect with such modifications as the Department considers appropriate for the purposes of dealing with such radioactive waste;

b

make such modifications of the Radioactive Substances Act 1993 and any other statutory provision as the Department considers appropriate.

C6C7 PART IIWASTE ON LAND

Meaning of “fit and proper person”3

1

2

3

a

b

c

4

5

6

a

b

c

i

ii

Prohibition on unauthorised or harmful depositing, treatment or disposal of waste

Prohibition on unauthorised or harmful deposit, treatment or disposal, etc., of waste4

1

C1a

C2b

i

ii

c

F12

2A

3

4

a

b

c

5

6

7

a

b

c

i

ii

F38

a

b

9

a

b

10

11

F65Fixed penalty notices for offences under Article 44A

1

2

3

a

b

4

5

a

b

c

6

7

8

9

a

b

10

11

12

a

b

13

14

Duty of care, etc., as respects waste

Duty of care, etc., as respects waste5

1

a

F6aa

F69ab

b

c

i

C6 C7 PART IIWASTE ON LAND