Control of Pollution Act 1974

39 Appeals to Secretary of State

(1) Any question as to whether—

(a) a water authority has unreasonably withheld its consent in pursuance of section 31(3) or 34 of this Act or regulations made by virtue of section 31(5) of this Act or has given its consent in pursuance of the said section 34 or such regulations subject to conditions which are unreasonable; or

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

(c) the period specified in any instrument or notice in pursuance of subsection (1) or (2) of the preceding section is unreasonable,

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

(2) Where the consent of a water authority in pursuance of regulations made by virtue of section 31(5) of this Act is withheld for any activity or is given subject to conditions for any activity and the applicant for the consent obtains a certificate from the Minister of Agriculture, Fisheries and Food stating that the activity in question is a good agricultural practice, any question as to whether the water authority has unreasonably withheld the consent or given it subject to conditions which are unreasonable shall be determined for the purposes of this Part of this Act by the Secretary of State and the said Minister acting jointly.

This subsection shall not apply to Scotland.

(3) If a water authority serves on any person a notice in pursuance of section 37 of this Act which contains such a statement as is mentioned in paragraph (a) of subsection (4) of the preceding section, that person or another person authorised by him in that behalf may request the Secretary of State to direct that that subsection shall have effect in relation to the notice as if the statement were omitted and the Secretary of State may if he thinks fit comply with the request.

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

(5) In any case where—

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

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

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

(6) Where a question is referred to the Secretary of State in pursuance of subsection (1) of this section and he determines that the consent in question was unreasonably withheld or that the conditions or terms or period in question are or is unreasonable, he shall give to the relevant water authority such a direction as he thinks fit with regard to the consent, conditions, terms or period and it shall be the duty of the authority to comply with the direction; and the preceding provisions of this subsection shall apply to a reference in pursuance of subsection (2) of this section as they apply to a reference in pursuance of subsection (1) of this section but as if for any reference in those provisions to the Secretary of State there were substituted a reference to him and the said Minister acting jointly.

(7) The withholding by a water authority of such a consent as is mentioned in subsection (1) of this section, the conditions subject to which such a consent is given and such terms and period as are so mentioned shall be treated as reasonable for the purposes of this Part of this Act until the contrary is determined in pursuance of subsection (1) or (2) of this section except that where a question as to the reasonableness of the conditions of a consent given in pursuance of regulations made by virtue of section 31(5) of this Act is referred to the Secretary of State or to him and the said Minister in pursuance of this section the consent shall be treated for those purposes as unconditional while the reference is pending.

(8) At any stage of the proceedings on a reference to the Secretary of State or to him and the said Minister in pursuance of this section he or they may, and shall if so directed by the High Court or, in Scotland, the Court of Session, state in the form of a special case for the decision of the court any question of law arising in those proceedings ; and in England and Wales the decision of the court on the special case shall be deemed to be a judgment of the court within the meaning of section 27 of the [1925 c. 49.] Supreme Court of Judicature (Consolidation) Act 1925 (which relates to the jurisdiction of the Court of Appeal to hear and determine appeals from any judgment of the High Court) but no appeal to the Court of Appeal shall be brought by virtue of this subsection except with the leave of that court or the High Court.