Planning (Hazardous Substances) Act 1990

Hazardous substances authorities E+W

1 Hazardous substances authorities: general. E+W

The council of the district [F1 , Welsh county, county borough]or London borough in which land is situated shall be the hazardous substances authority in relation to the land except in cases where section F2 . . . 3 applies.

Textual Amendments

F1 Words in s. 1 inserted (1.4.1996) by 1994 c. 19, s. 20(4), Sch. 6 Pt. II para. 26(1) (with ss. 54(5)(7), 55(5), Sch. 17 paras. 22(1), 23(2)); S.I. 1996/396, art. 3, Sch. 1

F2 Words repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

Commencement Information

I1 S. 1 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 1 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

F3 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W

Textual Amendments

F3 S. 2 repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), ss. 144, 162(2), Sch. 13 para. 2(1), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

3 Hazardous substances authorities: other special cases. E+W

(1) The county council shall be the hazardous substances authority for land which is in a non-metropolitan county [F4 in England] and—

F5 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) is used for the winning and working of minerals (including their extraction from a mineral-working deposit); or

(c) is situated in England and used for the disposal of refuse or waste materials,

F5 . . .

F5 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The Broads Authority is the hazardous substances authority for the Broads unless subsection (1) F6 . . . applies.

(4) If the land is in an area for which an urban development corporation is the local planning authority in relation to all kinds of development, the corporation shall be the hazardous substances authority for the land unless subsection (1) F6 . . . applies.

(5) If the land is in an area for which a housing action trust established under Part III of the M1 Housing Act 1988 is the local planning authority in relation to all kinds of development, the trust shall be the hazardous substances authority for the land unless subsection (1) F6 . . . applies.

[F7 (5A) If the land is in an area for which the Urban Regeneration Agency is the local planning authority in relation to all kinds of development, the Agency shall be the hazardous substances authority for the land unless subsection (1) F6 . . . applies.]

F8 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F4 Words in s. 3(1) inserted (1.4.1996) by 1994 c. 19, s. 20(4), Sch. 6 Pt. II para. 26(2) (with ss. 54(5)(7), 55(5), Sch. 17 paras. 22(1), 23(2)); S.I. 1996/396, art. 3, Sch. 1

F5 S. 3(1)(a)(2) and words in s. 3(1) repealed (1.4.1997) by 1995 c. 25, s. 120(3), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/2560, art. 2, Sch.

F6 Words in s. 3(3)-(5A) repealed (1.4.1997) by 1995 c. 25, s. 120(3), Sch. 24 (with ss. 7(6), 115, 117); S.I. 1996/2560, art. 2, Sch.

F7 S. 3(5A) inserted (10.11.1993) by 1993 c. 28, ss. 187(1), Sch. 21 para. 32: S.I. 1993/2762, art. 3

F8 S. 3(6) repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

Commencement Information

I2 S. 3 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; S. 3 in force for certain purposes at 11.3.1992 see S. I. 1992/725, art 2

Marginal Citations

M1 1988 c. 50.

Control over presence of hazardous substances E+W

4 Requirement of hazardous substances consent. E+W

(1) Subject to the provisions of this Act, the presence of a hazardous substance on, over or under land requires the consent of the hazardous substances authority (in this Act referred to as “hazardous substances consent”).

(2) Subsection (1) does not apply if the aggregate quantity of the substance—

(a) on, over or under the land;

[F9 (aa) on, over or under other land which is controlled by the same person and which, in all the circumstances (including in particular the purposes for which the land and the land mentioned in paragraph (a) is used) forms with the land so mentioned a single establishment;]

(b) on, over or under other land which is within 500 metres of [F10 the land mentioned in paragraph (a)] and controlled by the same person; or

(c) in or on a structure controlled by the same person any part of which is within 500 metres of [F10 the land mentioned in paragraph (a)],

is less than the quantity prescribed as the controlled quantity for that substance.

[F11 (2A) A quantity of a substance which falls within more than one paragraph of subsection (2) shall only be counted once.]

[F12 (3) The temporary presence of a hazardous substance while it is being transported from one place to another is not to be taken into account unless–

(a) it is unloaded; or

(b) it is present on, over or under land in respect of which there is a hazardous substances consent for any substance, or in respect of which (not taking into account the quantity of the substance being transported) there is required to be such a consent for any substance.]

(4) The Secretary of State may by regulations provide that hazardous substances consent is not required or is only required—

(a) in relation to land of prescribed descriptions;

(b) by reason of the presence of hazardous substances in prescribed circumstances.

(5) Regulations under this section may make different provision for different cases or descriptions of cases.

Textual Amendments

F9 S. 4(2)(aa) inserted (20.4.1999) by S.I. 1999/981, reg. 2(2)(a)

F10 Words in s. 4(2)(b)(c) substituted (20.4.1999) by S.I. 1999/981, reg. 2(2)(b)(c)

F11 S. 4(2A) inserted (20.4.1999) by S.I. 1999/981, reg. 2(2)(d)

F12 S. 4(3) substituted (20.4.1999) by S.I. 1999/981, reg. 2(2)(e)

Modifications etc. (not altering text)

C1 S. 4 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art. 3

Commencement Information

I3 S. 4 wholly in force at 1.6.1992; s. 4 in force for certain purposes at 11.3.1992 see S. I. 1992/725, art. 2, 3

5 Power to prescribe hazardous substances. E+W

(1) For the purposes of this Act the Secretary of State—

(a) shall by regulations specify—

(i) the substances that are hazardous substances; and

(ii) the quantity which is to be the controlled quantity of any such substance; and

(b) may by regulations provide that, except in such circumstances as may be prescribed, all hazardous substances falling within a group specified in the regulations are to be treated as a single substance.

(2) Regulations which—

(a) are made by virtue of subsection (1)(a)(i); or

(b) are made by virtue of subsection (1)(a)(ii) and reduce the controlled quantity of a substance,

may make such transitional provision as appears to the Secretary of State to be appropriate.

(3) The power to make such transitional provision includes, without prejudice to its generality, power to apply sections 11 and 26 subject to such modifications as appear to the Secretary of State to be appropriate.

(4) Regulations under this section may make different provision for different cases or descriptions of cases.

Modifications etc. (not altering text)

C2 S. 5 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

Commencement Information

I4 S. 5 in force for certain purposes at 11.3.1992; s. 5 wholly in force at 1.6.1992 see S.I. 1992/725, art. 2, 3

Obtaining hazardous substances consent E+W

6 Hazardous substances consent: general. E+W

(1) Hazardous substances consent—

(a) may be granted on an application under this Act, or

(b) may be deemed to have been granted by virtue of section 11 or 12.

(2) Without prejudice to the provisions of this Act, any hazardous substances consent shall (except in so far as it otherwise provides) enure for the benefit of the land to which it relates and of all persons for the time being interested in the land.

Modifications etc. (not altering text)

C3 S. 6 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

Commencement Information

I5 S. 6 wholly in force at 1.6.1992; s. 6 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2, 3

7 Applications for hazardous substances consent. E+W

(1) Provision may be made by regulations with respect to—

(a) the form and manner in which applications [F13 under this Act] for hazardous substances consent are to be made;

(b) the particulars which they are to contain and the evidence by which they are to be verified;

(c) the manner in which they are to be advertised; and

(d) the time within which they are to be dealt with.

(2) Regulations—

(a) may require an applicant for hazardous substances consent or the hazardous substances authority or both to give publicity to an application for hazardous substances consent in such manner as may be prescribed;

(b) may require hazardous substances authorities to conduct appropriate consultations before determining applications for hazardous substances consent;

(c) may provide for the manner in which such a consultation is to be carried out and the time within which—

(i) such a consultation; or

(ii) any stage in such a consultation,

is to be completed;

(d) may require hazardous substances authorities to determine applications for hazardous substances consent within such time as may be prescribed;

(e) may require hazardous substances authorities to give prescribed persons or bodies prescribed information about applications for hazardous substances consent, including information as to the manner in which such applications have been dealt with.

(3) In subsection (2) above “appropriate consultations”[F14 means consultations with the Health and Safety Executive and with] such persons or bodies as may be prescribed.

(4) Regulations under this section may make different provision for different cases or descriptions of cases.

Textual Amendments

F13 Words inserted (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 3; S.I. 1991/2829, art. 3

F14 Words substituted (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 2(2); S.I. 1991/2829, art. 3

Modifications etc. (not altering text)

C4 S. 7 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

Commencement Information

I6 S. 7 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 7 in force for certain purposes at 11.3.1992 see S. I. 1992/725, art. 2

8 Certificates as to applicant’s status etc. E+W

(1) Regulations under this Act may provide that an application for hazardous substances consent or an appeal against the refusal of such an application or against the imposition of a condition on such a consent shall not be entertained unless it is accompanied by one of the following certificates in the prescribed form and signed by or on behalf of the applicant—

(a) a certificate stating that, at the beginning of the period of 21 days ending with the date of the application, no person (other than the applicant) was the owner of any of the land to which the application relates;

(b) a certificate stating that the applicant has given the requisite notice of the application to all the persons (other than himself) who, at the beginning of that period, were owners of any of the land to which the application relates;

(c) a certificate stating that—

(i) the applicant is unable to issue a certificate in accordance with paragraph (a) or (b);

(ii) he has given the requisite notice of the application to such one or more of the persons mentioned in paragraph (b) as are specified in the certificate;

(iii) he has taken such steps as are reasonably open to him (specifying them) to ascertain the names and addresses of the remainder of those persons but has been unable to do so;

(d) a certificate stating that—

(i) the applicant is unable to issue a certificate in accordance with paragraph (a);

(ii) he has taken such steps as are reasonably open to him (specifying them) to ascertain the names and addresses of the persons mentioned in paragraph (b) but has been unable to do so.

(2) Where such provision is made any such certificate as is mentioned in subsection (1)(b) or (c) must set out—

(a) the names of those persons to whom the applicant has given the requisite notice of the application;

(b) the addresses at which notice was given to them;

(c) the date of service of each such notice.

(3) Such regulations may require that any such certificate as is mentioned in subsection (1)(c) or (d) shall also contain a statement that the requisite notice of the application, as set out in the certificate, has on a date specified in the certificate (which must not be earlier than the beginning of the period mentioned in subsection (1)(a)) been published in a local newspaper circulating in the locality in which the land in question is situated.

(4) Such regulations may also require that where an application is accompanied by such a certificate as is mentioned in subsection (1)(b),(c) or (d) the hazardous substances authority—

(a) shall not determine the application before the end of the period of 21 days beginning with the date appearing from the certificate to be the latest of the dates of service of notices as mentioned in the certificate or, if later, the date of publication of a notice as so mentioned;

(b) in determining the application, shall take into account any representations relating to it which are made to them before the end of that period by any person who satisfies them that he is an owner of any land to which the application relates; and

(c) shall give notice of their decision to every person who has made representations which they were required to take into account in accordance with paragraph (b).

(5) Such regulations may also make provision as to who is to be treated as the owner of land for the purposes of any provisions of the regulations.

(6) If any person—

(a) issues a certificate which purports to comply with the requirements of regulations made by virtue of this section and contains a statement which he knows to be false or misleading in a material particular; or

(b) recklessly issues a certificate which purports to comply with those requirements and contains such a statement,

he shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(7) Regulations under this section may make different provision for different cases or descriptions of cases.

(8) Subject to subsection (5), in this section “owner,” in relation to any land, means a person who is for the time being the estate owner in respect of the fee simple in the land or is entitled to a tenancy of the land granted or extended for a term of years certain, of which not less than seven years remain unexpired.

Modifications etc. (not altering text)

C5 S. 8 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

Commencement Information

I7 S. 8 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 8 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

9 Determination of applications for hazardous substances consent. E+W

(1) Subject to the following provisions of this Act, where an application is made to a hazardous substances authority for hazardous substances consent, that authority—

(a) may grant hazardous substances consent, either unconditionally or subject to such conditions as they think fit; or

(b) may refuse hazardous substances consent.

(2) In dealing with such an application the hazardous substances authority shall have regard to any material considerations and, in particular, but without prejudice to the generality of the foregoing—

(a) to any current or contemplated use of the land to which the application relates;

(b) to the way in which land in the vicinity is being used or is likely to be used;

(c) to any planning permission that has been granted for development of land in the vicinity;

(d) to the provisions of the development plan; and

(e) to any advice which the Health and Safety Executive F15 . . . have given following consultations in pursuance of regulations under section 7(2).

(3) If an application relates to more than one hazardous substance, the authority may make different determinations in relation to each.

(4) It shall be the duty of a hazardous substances authority, when granting hazardous substances consent, to include in that consent—

(a) a description of the land to which the consent relates;

(b) a description of the hazardous substance or substances to which it relates; and

(c) in respect of each hazardous substance to which it relates, a statement of the maximum quantity allowed by the consent to be present at any one time.

Textual Amendments

F15 Words repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

Modifications etc. (not altering text)

C6 S. 9 applied (1.6.1992) by S.I. 1992/656, reg. 26(4)

C7 S. 9 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

C8 S. 9(1): functions of local authority not to be the responsibility of an executive of the authority (E.) (16.11.2000) by virtue of S.I. 2000/2853, reg. 2(1), Sch. 1

Commencement Information

I8 S. 9 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 9 in force for certain purposes at 11.3.1992 see S. I. 1992/725, art 2

10 Power to impose conditions on grant of hazardous substances consent. E+W

(1) Without prejudice to the generality of section 9(1), a hazardous substances authority may make the grant of hazardous substances consent conditional on the commencement or partial or complete execution of development on the land which is authorised by a specified planning permission or may grant hazardous substances consent subject to conditions with respect to any of the following—

(a) how and where any hazardous substance to which the consent relates is to be kept or used;

(b) the times between which any such substance may be present;

(c) the permanent removal of any such substance—

(i) on or before a date specified in the consent; or

(ii) before the end of a period specified in it and commencing on the date on which it is granted.

(2) [F16 A hazardous substances authority]may only grant consent subject to conditions as to how a hazardous substance is to be kept or used if the conditions are conditions to which the Health and Safety Executive have advised the authority that any consent they might grant should be subject.

(3) It shall be the duty of a hazardous substances authority when granting hazardous substances consent to include in that consent in respect of each hazardous substance to which it relates a statement of all conditions relating to that substance subject to which the consent is granted.

Textual Amendments

F16 Words "A hazardous substances authority" substituted (1.1.1992) for words commencing "An authority" by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 2(3); S.I. 1991/2829, art. 3

Modifications etc. (not altering text)

C9 S. 10 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

C10 S. 10: functions of local authority not to be responsibility of an executive of the authority (E.) (16.11.2000) by virtue of S.I. 2000/2853, reg. 2(1), Sch. 1

Commencement Information

I9 S. 10 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 10 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

11 Deemed hazardous substances consent: established presence. E+W

(1) Where a hazardous substance was present on, over or under any land at any time within the establishment period hazardous substances consent may be claimed in respect of its presence.

(2) A claim shall be made in the prescribed form before the end of the transitional period and shall contain the prescribed information as to the presence of the substance during the establishment period and as to how and where it was kept and used [F17 while it was so present].

(3) Subject to subsections (4) to (6), the hazardous substances authority shall be deemed to have granted any hazardous substances consent which is claimed under subsection (1).

(4) If at the relevant date notification in respect of the substance was required by regulation 3 or 5 of the Notification Regulations, hazardous substances consent is only to be deemed to be granted under this section if notification in respect of the substance was given before that date in accordance with those regulations.

(5) If at the relevant date such notification was not so required, hazardous substances consent is only to be deemed to be granted under this section if an aggregate quantity of the substance not less than the controlled quantity was present at any one time within the establishment period.

(6) If it appears to the hazardous substances authority that a claim for hazardous substances consent does not comply with subsection (2), it shall be their duty, before the end of the period of two weeks from their receipt of the claim—

(a) to notify the claimant that in their opinion the claim is invalid; and

(b) to give their reasons for that opinion.

(7) Hazardous substances consent which is deemed to be granted under this section is subject F18 . . .—

(a) [F19 to the condition that] the maximum aggregate quantity of the substance that may be present—

(i) on, over or under the land to which the claim for the consent relates;

(ii) on, over or under other land which is within 500 metres of it and controlled by the same person; or

(iii) in or on a structure controlled by the same person any part of which is within 500 metres of it,

at any one time shall not exceed the established quantity;

[F20 , and

(b) to such other conditions (if any) as are prescribed for the purposes of this section and are applicable in the case of that consent.]

(8) In this section—

• “establishment period” means the period of 12 months immediately preceding the relevant date;

• “established quantity” means, in relation to any land—

(a) where before the relevant date there was a notification in respect of a substance in accordance with any of the Notification Regulations—

(i) the quantity notified or last notified before that date; or

(ii) a quantity equal to twice the quantity which was so notified or last notified before the start of the establishment period,

whichever is the greater;

(b) where a notification was not required before that date by any of those regulations, a quantity exceeding by 50 per cent. the maximum quantity which was present on, over or under the land at any one time within that period;

• “Notification Regulations” means the M2 Notification of Installations Handling Hazardous Substances Regulations 1982;

• “the relevant date” means the date on which Part IV of the M3 Housing and Planning Act 1986 came into force or, if that Part of that Act is not in force immediately before the date on which this Act comes into force, that date.

• “the transitional period” means the period of 6 months beginning with the relevant date.

Textual Amendments

F17 Words "while it was so present" substituted (1.1.1992) for "immediately before the relevant date" by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 4(a); S.I. 1991/2829, art. 3

F18 Words repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

F19 Words inserted (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 4(b); S.I. 1991/2829, art. 3

F20 Word "and" and para. (b) commencing "to such other" substituted (1.1.1992) for paras. (b)(c) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 4(b); S.I. 1991/2829, art. 3

Modifications etc. (not altering text)

C11 S. 11: power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

S. 11 applied (with modifications) (temp.) (20.4.1999) by S.I. 1999/981, reg. 4(1)

Commencement Information

I10 S. 11 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 11 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art 2

Marginal Citations

M2 S.I. 1982/1357.

M3 1986 c. 63.

F21 12 Deemed hazardous substances consent: government authorisation. E+W

(1) Where—

(a) the authorisation of a government department is required by virtue of an enactment in respect of development to be carried out by a local authority, or by statutory undertakers who are not a local authority; and

(b) the development would involve the presence of a hazardous substance in circumstances requiring hazardous substances consent,

the department may, on granting that authorisation, also direct that hazardous substances consent shall be deemed to be granted subject to such conditions (if any) as may be specified in the direction.

(2) On granting a consent under section 36 of the M4 Electricity Act 1989 in respect of any operation or change of use that would involve the presence of a hazardous substance in circumstances requiring hazardous substances consent, the Secretary of State may direct that hazardous substances consent shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction.

[F22 (2A) On making an order under section 1 or 3 of the Transport and Works Act 1992 which includes any provision that would involve the presence of a hazardous substance in circumstances requiring hazardous substances consent, the Secretary of State may direct that hazardous substances consent shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction.]

(3) The department or, as the case may be, the Secretary of State shall consult the Health and Safety Commission before giving any such direction.

(4) For the purposes of this section development shall be taken to be authorised by a government department if—

(a) any consent, authority or approval to or for the development is granted by the department in pursuance of an enactment;

(b) a compulsory purchase order is confirmed by the department authorising the purchase of land for the purpose of the development;

(c) consent is granted by the department to the appropriation of land for the purpose of the development or the acquisition of land by agreement for that purpose;

(d) authority is given by the department for the borrowing of money for the purpose of the development, or for the application for that purpose of any money not otherwise so applicable; or

(e) any undertaking is given by the department to pay a grant in respect of the development in accordance with an enactment authorising the payment of such grants,

and references in this section to the authorisation of a government department shall be construed accordingly.

(5) The provisions of this Act (except section 22) shall apply in relation to any hazardous substances consent deemed to be granted by virtue of directions under this section as if it had been granted by the Secretary of State on an application referred to him under section 20.

[F23 (6) A government department or the Secretary of State shall, as respects any hazardous substances consent deemed to be granted by virtue of directions under this section, send to the hazardous substances authority concerned any such information as appears to be required by them for the purposes of a register under section 28.]

Textual Amendments

F21 S. 12 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

F22 S. 12(2A) inserted (1.1.1993) by Transport and Works Act 1992 (c. 42, SIF 102), s.18; S.I. 1992/2784, art. 2, Sch. 1

F23 S. 12(6) added (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 5; S.I. 1991/2829, art. 3

Modifications etc. (not altering text)

C12 S. 12 extended (19.9.1995) by 1995 c. 25, ss. 70, 125(2), Sch. 9 para. 14(2) (with ss. 7(6), 115, 117, Sch. 8 para. 7)

Commencement Information

I11 S. 12 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 12 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

Marginal Citations

M4 1989 c. 29.

Variation and revocation of consents E+W

13 Application for hazardous substances consent without condition attached to previous consent. E+W

(1) This section applies to an application for hazardous substances consent without a condition subject to which a previous hazardous substances consent was granted.

(2) On such an application the hazardous substances authority shall consider only the question of the conditions subject to which hazardous substances consent should be granted.

(3) If on such an application the hazardous substances authority determine—

(a) that hazardous substances consent should be granted subject to conditions differing from those subject to which the previous consent was granted; or

(b) that it should be granted unconditionally,

they shall grant hazardous substances consent accordingly.

(4) If on such an application the hazardous substances authority determine that hazardous substances consent should be granted subject to the same conditions as those subject to which the previous consent was granted, they shall refuse the application.

(5) Where—

(a) hazardous substances consent has been granted or is deemed to have been granted for the presence on, over or under land of more than one hazardous substance; and

(b) an application under this section does not relate to all the substances,

the hazardous substances authority shall only have regard to any condition relating to a substance to which the application does not relate to the extent that it has implications for a substance to which the application does relate.

(6) Where—

(a) more than one hazardous substances consent has been granted or is deemed to have been granted in respect of the same land; and

(b) an application under this section does not relate to all the consents,

the hazardous substances authority shall only have regard to any consent to which the application does not relate to the extent that it has implications for consent to which the application does relate.

F24 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F24 S. 13(7) repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), ss. 144, 162(2), Sch. 13 Pt. I para. 6, Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

Modifications etc. (not altering text)

C13 S. 13 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

Commencement Information

I12 S. 13 wholly in force at 1.6.1992 see S.I. 1992/725, art.3; s. 13 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

14 General power by order to revoke or modify hazardous substances consent. E+W

(1) The hazardous substances authority may by order revoke a hazardous substances consent or modify it to such extent as they consider expedient if it appears to them, having regard to any material consideration, that it is expedient to revoke or modify it.

(2) The hazardous substances authority may also by order revoke a hazardous substances consent if it appears to them—

(a) that there has been a material change of use of land to which a hazardous substances consent relates; or

(b) that planning permission has been granted for development the carrying out of which would involve a material change of use of such land and the development to which the permission relates has been commenced; or

(c) in the case of a hazardous substances consent which relates only to one substance, that that substance has not for at least five years been present on, over or under the land to which the consent relates in a quantity equal to or exceeding the controlled quantity; or

(d) in the case of a hazardous substances consent which relates to a number of substances, that none of those substances has for at least five years been so present.

(3) An order made by virtue of subsection (2)(a) or (b) in the case of a consent relating to more than one substance may revoke it entirely or only so far as it relates to a specified substance.

(4) An order under this section shall specify the grounds on which it is made.

Modifications etc. (not altering text)

C14 S. 14 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

Commencement Information

I13 S. 14 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 14 in force for certain purposes at 11.3. 1992 see S.I. 1992/725, art. 2

15 Confirmation by Secretary of State of s. 14 orders. E+W

(1) An order under section 14 (F25 . . . shall not take effect unless it is confirmed by the Secretary of State.

(2) The Secretary of State may confirm any such order submitted to him either without modification or subject to such modification as he considers expedient.

(3) Where a hazardous substances authority submit an order under section 14 to the Secretary of State for his confirmation under this section, the authority shall serve notice of the order—

(a) on any person who is an owner of the whole or any part of the land to which the order relates;

(b) on any person other than an owner who appears to them to be in control of the whole or any part of that land;

(c) on any other person who in their opinion will be affected by the order.

(4) A notice under subsection (3) shall specify the period (which must not be less than 28 days from the service of it) within which any person on whom the notice is served may require an opportunity of appearing before and being heard by a person appointed by the Secretary of State for that purpose.

(5) If such a person so requires, the Secretary of State, before confirming the order, shall give that person and the hazardous substances authority such an opportunity.

(6) Where an order under section 14 has been confirmed by the Secretary of State, the hazardous substances authority shall serve a copy of the order on every person who was entitled to be served with notice under subsection (3).

Textual Amendments

F25 Words repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), ss. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

Modifications etc. (not altering text)

C15 S. 15 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

Commencement Information

I14 S. 15 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 14 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

16 Compensation in respect of s. 14 orders. E+W

(1) This section applies where an order is made under section 14(1) revoking or modifying a hazardous substances consent.

(2) If, on a claim made to the hazardous substances authority within the prescribed time and in the prescribed manner, it is shown that any person has suffered damage in consequence of the order—

(a) by depreciation of the value of an interest to which he is entitled in the land or in minerals in, on or under it; or

(b) by being disturbed in his enjoyment of the land or of minerals in, on or under it,

the authority shall pay him compensation in respect of that damage.

(3) Without prejudice to subsection (2), any person who carries out any works in compliance with the order shall be entitled, on a claim made as mentioned in that subsection, to recover from the hazardous substances authority compensation in respect of any expenses reasonably incurred by him in that behalf.

(4) Any compensation payable to a person under this section by virtue of an order shall be reduced by the value to him of any timber, apparatus or other materials removed for the purpose of complying with the order.

(5) Sections 117 and 118 of the principal Act (which contain general provisions as to the assessment of and the determination of claims for compensation) shall apply as if compensation under this section were compensation under section 115 of that Act.

Commencement Information

I15 S. 16 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 16 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

17 Revocation of hazardous substances consent on change of control of land. E+W

(1) A hazardous substances consent is revoked if there is a change in the person in control of part of the land to which it relates, unless an application for the continuation of the consent has previously been made to the hazardous substances authority.

(2) Regulations may make provision in relation to applications under subsection (1) corresponding to any provision that may be made by regulations under section 7 or 8 in relation to applications for hazardous substances consent.

Modifications etc. (not altering text)

C16 S. 17 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art. 3

Commencement Information

I16 S. 17 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 17 in force for certain purposes at 11. 3.1992 see S.I. 1992/725, art. 2

18 Determination of applications for continuation of hazardous substances consent. E+W

(1) When an application is made under section 17 for the continuation of a hazardous substances consent the hazardous substances authority—

(a) may modify the consent in any way they consider appropriate; or

(b) may revoke it.

(2) In dealing with such an application the authority shall have regard to any material consideration and, in particular, but without prejudice to the generality of the foregoing—

(a) to the matters to which a hazardous substances authority are required to have regard by section 9(2)(a) to (d); and

(b) to any advice which the Health and Safety Executive F26 . . . have given following consultations in pursuance of regulations under section 17(2).

(3) If an application relates to more than one consent, the authority may make different determinations in relation to each.

(4) If a consent relates to more than one hazardous substance, the authority may make different determinations in relation to each.

(5) It shall be the duty of a hazardous substances authority, when continuing hazardous substances consent, to attach to the consent either—

(a) a statement that it is unchanged in relation to the matters included in it by virtue of sections 9(4) and 10(3); or

(b) a statement of any change in respect of those matters.

(6) The modifications which a hazardous substances authority may make by virtue of subsection (1)(a) include, without prejudice to the generality of that subsection, the making of the consent subject to conditions with respect to any of the matters mentioned in subsection (1) of section 10; and subsection (2) of that section shall apply as respects those conditions as it applies to the grant of consent subject to conditions.

(7) Where any application under section 17(1) is made to a hazardous substances authority then, unless within such period as may be prescribed, or within such extended period as may at any time be agreed upon in writing between the applicant and the hazardous substances authority, the hazardous substances authority either—

(a) give notice to the applicant of their decision on the application; or

(b) give notice to him that the application has been referred to the Secretary of State in accordance with directions given under section 20,

the application shall be deemed to have been granted.

Textual Amendments

F26 Words repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

Modifications etc. (not altering text)

C17 S. 18 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art. 3

Commencement Information

I17 S. 18 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; S. 18 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

19 Compensation on revocation or modification of consent under s. 18. E+W

Where on an application under section 17(1) the hazardous substances authority modify or revoke the hazardous substances consent, they shall pay to the person in control of the whole of the land before the change in control by virtue of which the application was made compensation in respect of any loss or damage sustained by him and directly attributable to the modification or revocation.

Modifications etc. (not altering text)

C18 S. 19 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

Commencement Information

I18 S. 19 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; S. 19 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

Secretary of State’s powers E+W

20 Reference of applications to Secretary of State. E+W

(1) The Secretary of State may give directions requiring applications for hazardous substances consent or applications under section 17(1) to be referred to him instead of being dealt with by hazardous substances authorities.

(2) A direction under this section—

(a) may be given either to a particular hazardous substances authority or to hazardous substances authorities generally; and

(b) may relate either to a particular application or to applications of a class specified in the direction.

(3) Any application in respect of which a direction under this section has effect shall be referred to the Secretary of State accordingly.

(4) Before determining an application referred to him under this section, the Secretary of State shall, if either the applicant or the hazardous substances authority so wish, give to each of them an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

(5) The decision of the Secretary of State on any application referred to him under this section shall be final.

F27 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F27 S. 20(6) repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

Modifications etc. (not altering text)

C19 S. 20 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

Commencement Information

I19 S. 20 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 20 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

21 Appeals against decisions or failure to take decisions relating to hazardous substances. E+W

(1) Where a hazardous substances authority refuse an application for hazardous substances consent or an application under section 17(1) or an application for any consent, agreement or approval of the authority required by a condition imposed on the grant of such consent, or grant it subject to conditions, the applicant may, if he is aggrieved by their decision, appeal to the Secretary of State.

(2) A person who has made an application for hazardous substances consent may also appeal to the Secretary of State if the hazardous substances authority have neither—

(a) given notice to the applicant of their decision on the application; nor

(b) given notice to him that the application has been referred to the Secretary of State in accordance with directions given under section 20,

within such period as may be prescribed, or within such extended period as may at any time be agreed upon in writing between the applicant and the hazardous substances authority; and for the purposes of this Act in such a case the authority shall be deemed to have decided to refuse the application.

(3) An appeal under this section must be made by notice served in the prescribed manner within such period as may be prescribed.

(4) The Secretary of State may allow or dismiss an appeal under this section or may reverse or vary any part of the decision of the hazardous substances authority (whether or not the appeal relates to that part of it) and may deal with the application as if it had been made to him in the first instance.

(5) Before determining an appeal under this section, the Secretary of State shall, if either the applicant or the hazardous substances authority so wish, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.

(6) The decision of the Secretary of State on any appeal under this section shall be final.

F28 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) The Schedule to this Act applies to appeals under this section.

Textual Amendments

F28 S. 21(7) repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

Modifications etc. (not altering text)

C20 S. 21 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

Commencement Information

I20 S. 21 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 21 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

22 Validity of decisions as to applications. E+W

(1) If any person is aggrieved by any decision of the Secretary of State under section 20 or 21 and wishes to question the validity of that decision on the grounds—

(a) that it is not within the powers of this Act; or

(b) that any of the relevant requirements have not been complied with in relation to that decision,

he may within six weeks from the date on which the decision is taken make an application to the High Court under this section.

(2) Without prejudice to subsection (1), if the hazardous substances authority who made the decision on the application to which the proceedings relate or, as the case may be, referred the application wish to question the validity of any such decision as is mentioned in that subsection on any of the grounds there mentioned, the authority may within six weeks from the date on which the decision is taken make an application to the High Court under this section.

(3) On any application under this section the High Court—

(a) may by interim order suspend the operation of the decision the validity of which is questioned by the application until the final determination of the proceedings;

(b) if satisfied that the decision in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, may quash that decision.

(4) In this section “the relevant requirements”, in relation to any decision, means any requirements of this Act or the [F29 principal Act]or of [F30 the Tribunals and Inquiries Act 1992], or of any order, regulations or rules made under this Act or under either of those Acts which are applicable to that decision.

(5) Except as provided by this section, the validity of any such decision as is mentioned in subsection (1) shall not be questioned in any legal proceedings whatsoever.

(6) Nothing in subsection (5) shall affect the exercise of any jurisdiction of any court in respect of any refusal or failure on the part of the Secretary of State to take any such decision as is there mentioned.

Textual Amendments

F29 Words "principal Act" substituted (1.1.1992) for words "1971 Act" by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 7; S.I. 1991/2829, art. 3

F30 Words in s. 22(4) substituted (1.10.1992) by Tribunals and Inquiries Act 1992 (c. 53, SIF 127), ss. 18(1), 19(2), Sch. 3 para. 33

Modifications etc. (not altering text)

C21 S. 22 modified by S.I. 1992/656, reg. 26(5)

Commencement Information

I21 S. 22 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 22 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

Contraventions of hazardous substances control E+W

23 Offences. E+W

(1) Subject to the following provisions of this section, if there is a contravention of hazardous substances control, the appropriate person shall be guilty of an offence.

(2) There is a contravention of hazardous substances control—

(a) if a quantity of a hazardous substance equal to or exceeding the controlled quantity is or has been present on, over or under land and either—

(i) there is no hazardous substances consent for the presence of the substance; or

(ii) there is hazardous substances consent for its presence but the quantity present exceeds the maximum quantity permitted by the consent;

(b) if there is or has been a failure to comply with a condition subject to which a hazardous substances consent was granted.

(3) In subsection (1) “the appropriate person” means—

(a) in relation to a contravention falling within paragraph (a) of subsection (2)—

(i) any person knowingly causing the substance to be present on, over or under the land;

(ii) any person allowing it to be so present; and

(b) in relation to a contravention falling within paragraph (a) or (b) of that subsection, the person in control of the land.

(4) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to a fine not exceeding [F31 £20,000]; or

(b) on conviction on indictment, to a fine.

[F32 (4A) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence]

(5) In any proceedings for an offence under this section it shall be a defence for the accused to prove—

(a) that he took all reasonable precautions and exercised all due diligence to avoid commission of the offence, or

(b) that commission of the offence could be avoided only by the taking of action amounting to a breach of a statutory duty.

(6) In any proceedings for an offence consisting of a contravention falling within subsection (2)(a), it shall be a defence for the accused to prove that at the time of the alleged commission of the offence he did not know, and had no reason to believe—

(a) if the case falls within paragraph (a)(i)—

(i) that the substance was present; or

(ii) that it was present in a quantity equal to or exceeding the controlled quantity;

(b) if the case falls within paragraph (a)(ii), that the substance was present in a quantity exceeding the maximum quantity permitted by the consent.

(7) In any proceedings for an offence consisting of a contravention falling within subsection (2)(b), it shall be a defence for the accused to prove that he did not know, and had no reason to believe, that there was a failure to comply with a condition subject to which hazardous substances consent had been granted.

Textual Amendments

F31 Word in s. 23(4) substituted (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. I para. 10(a) (with s. 84(5)); S.I. 1991/2905, art.3

F32 S. 23(4A) substituted (2.1.1992) for the words following s. 23(4)(b) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. I para. 10(b) (with s. 84(5)); S.I. 1991/2905, art. 3

Modifications etc. (not altering text)

C22 S. 23 restricted and modified by S.I. 1992/725, art. 4

C23 S. 23: power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art. 3

Commencement Information

I22 S. 23 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 23 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

24 Power to issue hazardous substances contravention notice. E+W

(1) Where it appears to the hazardous substances authority that there is or has been a contravention of hazardous substances control, they may issue a notice—

(a) specifying an alleged contravention of hazardous substances control; and

(b) requiring such steps as may be specified in the notice to be taken to remedy [F33 wholly or partly] the contravention,

if they consider it expedient to do so having regard to any material consideration.

(2) Such a notice is referred to in this Act as a “hazardous substances contravention notice”.

(3) A hazardous substances authority shall not issue a hazardous substances contravention notice where it appears to them that a contravention of hazardous substances control can be avoided only by the taking of action amounting to a breach of a statutory duty.

(4) A copy of a hazardous substances contravention notice shall be served—

(a) on the owner of the land to which it relates;

(b) on any person other than the owner who appears to the hazardous substances authority to be in control of the land; and

(c) on such other persons as may be prescribed.

(5) A hazardous substances contravention notice shall also specify—

(a) a date not less than 28 days from the date of service of copies of the notice as the date on which it is to take effect;

(b) in respect of each of the steps required to be taken to remedy the contravention of hazardous substances control, the period from the notice taking effect within which the step is to be taken.

(6) Where a hazardous substances authority issue a hazardous substances contravention notice the steps required by the notice may, without prejudice to the generality of subsection (1)(b), if the authority think it expedient, include a requirement that the hazardous substance be removed from the land.

(7) Where a notice includes such a requirement, it may also contain a direction that at the end of such period as may be specified in the notice any hazardous substances consent for the presence of the substance shall cease to have effect or, if it relates to more than one substance, shall cease to have effect so far as it relates to the substances which are required to be removed.

(8) The hazardous substances authority may withdraw a hazardous substances contravention notice (without prejudice to their power to issue another) at any time before [F34 or after] it takes effect.

(9) If they do so, they shall immediately give notice of the withdrawal to every person who was served with a copy of the notice [F35 or would, if the notice were re-issued, be served with a copy of it].

Textual Amendments

F33 Words in s. 24(1)(b) inserted (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. I para. 11(a) (with s. 84(5)); S.I. 1991/2905, art. 3

F34 Words in s. 24(8) inserted (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. I para. 11(b) (with s. 84(5)); S.I. 1991/2905, art. 3

F35 Words in s. 24(9) inserted (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. I para. 11(c) (with s. 84(5)); S.I. 1991/2905, art. 3

Modifications etc. (not altering text)

C24 S. 24 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

Commencement Information

I23 S. 24 wholly in force at 1.6.1992 and in force at 11.3.1992 for certain purposes see S.I. 1992/725, art. 2, 3

[F36 24A Variation of hazardous substances contravention notices. E+W

(1) A hazardous substances authority may waive or relax any requirement of a hazardous substances contravention notice issued by them and, in particular, may extend any period specified in accordance with section 24(5)(b) in the notice.

(2) The powers conferred by subsection (1) may be exercised before or after the notice takes effect.

(3) The hazardous substances authority shall, immediately after exercising those powers, give notice of the exercise to every person who has been served with a copy of the hazardous substances contravention notice or would, if the notice were re-issued, be served with a copy of it.]

Textual Amendments

F36 S. 24A inserted (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. I para.12 (with s. 84(5)); S.I. 1991/2905, art. 3

Modifications etc. (not altering text)

C25 S. 24A: power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art. 3

Commencement Information

I24 S. 24A wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 24A in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

25 Hazardous substances contravention notices: supplementary provisions. E+W

(1) The Secretary of State may by regulations—

(a) specify matters which are to be included in hazardous substances contravention notices, in addition to those which are required to be included in them by section 24;

(b) provide—

(i) for appeals to him against hazardous substances contravention notices;

(ii) for the persons by whom, grounds upon which and time within which such an appeal may be brought;

(iii) for the procedure to be followed on such appeals;

(iv) for the directions that may be given on such an appeal;

(v) for the application to such appeals, subject to such modifications as the regulations may specify, of any of the provisions of sections 174, [F37 175(1) to (3)] and (6), 176, 177, 285 and 289 of the principal Act;

(c) dir ect that any of the provisions of sections 178 [F38 (1) to (5) and (7)], 179 to 181, 183, 184, [F39 186,] 187 and 188 of that Act shall have effect in relation to hazardous substances contravention notices subject to such modifications as he may specify in the regulations;

(d) make such other provision as he considers necessary or expedient in relation to hazardous substances contravention notices.

(2) If any person appeals against a hazardous substances contravention notice, the notice shall [F40 subject to regulations under this section]be of no effect pending the final determination or the withdrawal of the appeal.

(3) Regulations under section 24 or this section may make different provision for different cases or descriptions of cases.

(4) Where any person has appealed to the Secretary of State under this section against a hazardous substances contravention notice, no person shall be entitled, in any other proceedings instituted after the making of the appeal, to claim that the notice was not duly served on the person who appealed.

[F41 (5) Subsection (5) of section 250 of the Local Government Act 1972 (which authorises a Minister holding an inquiry under that section to make orders with respect to the costs of the parties) shall apply in relation to any proceedings before the Secretary of State on an appeal under this section as if those proceedings were an inquiry held by the Secretary of State under section 250.]

Textual Amendments

F37 Words in s. 25(1)(b)(v) (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. II para. 30(a) (with s. 84(5)); S.I. 1991/2905, art. 3

F38 Words in s. 25(1)(c) repealed (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. II para. 30(b), Sch. 19 Pt. I (with s. 84(5)); S.I. 1991/2905, art. 3, Sch. 2

F39 Word "186," inserted (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 8; S.I. 1991/2829, art. 3

F40 Words in s. 25(2) inserted (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. I para.13 (with s. 84(5)); S.I. 1991/2905, art. 3

F41 S. 25(5) inserted (temp.) by virtue of Planning (Consequential Provisions) Act 1990 (c. 11, SIF 123:1, 2), s. 6, Sch. 4 paras. 1, 13 (which temp. insertion falls (2.1.1992) for specified purposes only by virtue of S.I. 1991/2698, arts. 3, 4)

Modifications etc. (not altering text)

C26 S. 25 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

C27 S. 25(2) restricted (1.6.1992) by S.I. 1992/656, reg. 22(2)

Commencement Information

I25 S. 25 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 25 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

26 Transitional exemptions. E+W

(1) No offence is committed under section 23 and no hazardous substances contravention notice may be issued in relation to a hazardous substance which is on, over or under any land, if—

(a) the substance was present on, over or under the land at any time within the establishment period; and

(b) in a case in which at the relevant date notification in respect of that substance was required by any of the Notification Regulations, both the conditions specified in subsection (2) were satisfied; and

(c) in a case in which at that date such notification was not so required, the condition specified in paragraph (b) of that subsection is satisfied.

(2) The conditions mentioned in subsection (1) are—

(a) that notification required by the Notification Regulations was given before the relevant date; and

(b) that the substance has not been present during the transitional period in a quantity greater in aggregate than the established quantity.

[F42 (2A) This section shall have effect until the end of the transitional period.]

(3) Expressions used in this section and in section 11 have the same meanings as in that section.

Textual Amendments

F42 S. 26(2A) inserted (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. I para.14 (with s. 84(5)); S.I. 1991/2905, art. 3

Modifications etc. (not altering text)

C28 S. 26 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art. 3

S. 26 applied (with modifications) (temp.) (20.4.1999) by S.I. 1999/981, reg. 4(1)

Commencement Information

I26 S. 26 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 26 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

Miscellaneous provisions E+W

[F43 26A Fees for consent applications. E+W

(1) Provision may be made by regulations for the payment of a fee of the prescribed amount to a hazardous substances authority in respect of an application for, or for the continuation of, hazardous substances consent.

(2) Regulations under this section may provide for the payment to the Secretary of State of a fee of the prescribed amount in respect of any application which is, by virtue of regulations under section 25, deemed to have been made for hazardous substances consent.

(3) Regulations under this section may provide—

(a) for the transfer of prescribed fees received by a hazardous substances authority in respect of any application which is referred to the Secretary of State under section 20;

(b) for the remission or refunding of a prescribed fee (in whole or in part) in prescribed circumstances or in pursuance of a direction given by the Secretary of State;

and the regulations may make different provision for different areas or for different cases or descriptions of cases.]

Textual Amendments

F43 S. 26A inserted (1.1.1992) before s. 27 by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 9; S.I. 1991/2829, art. 3

Modifications etc. (not altering text)

C29 S. 26A: power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art. 3

Commencement Information

I27 S. 26A wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 26A in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

[F44 26AA Injunctions. E+W

(1) Where a hazardous substances authority consider it necessary or expedient for any actual or apprehended contravention of hazardous substances control to be restrained by injunction, they may apply to the court for an injunction, whether or not they have exercised or are proposing to exercise any of their other powers under this Act.

(2) On an application under subsection (1) the court may grant such an injunction as the court thinks appropriate for the purpose of restraining the contravention.

(3) Rules of court may, in particular, provide for such an injunction to be issued against a person whose identity is unknown.

(4) In this section “the court” means the High Court or the county court.]

Textual Amendments

F44 S. 26AA inserted (25.11.1991) for certain purposes by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. I para. 15 (with s. 84(5)); S.I. 1991/2728, art. 2

Modifications etc. (not altering text)

C30 S. 26AA: power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art. 3

Commencement Information

I28 S. 26AA wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 26AA in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

27 Temporary exemption directions. E+W

(1) If it appears to the Secretary of State—

(a) either—

(i) that the community or part of it is being or is likely to be deprived of an essential service or commodity; or

(ii) that there is or is likely to be a shortage of such a service or commodity affecting the community or part of it; and

(b) that the presence of a hazardous substance on, over or under land specified in the direction in circumstances such that hazardous substances consent would be required, is necessary for the effective provision of that service or commodity,

he may direct that, subject to such conditions or exceptions as he thinks fit, the presence of the substance on, over or under the land is not to constitute a contravention of hazardous substances control so long as the direction remains in force.

(2) A direction under this section—

(a) may be withdrawn at any time;

(b) shall in any case cease to have effect at the end of the period of three months beginning with the day on which it was given, but without prejudice to the Secretary of State’s power to give a further direction.

(3) The Secretary of State shall send a copy of any such direction to the authority who are the hazardous substances authority for the land.

F45 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F45 S. 27(4) repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

Commencement Information

I29 S. 27 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 27 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

28 Registers etc. E+W

(1) Every F46 . . . hazardous substances authority F46 . . . shall keep, in such manner as may be prescribed, a register containing such information as may be prescribed with respect—

(a) to applications for hazardous substances consent [F47 made to that authority;

(aa) to applications under section 17(1) made to that authority;]

(b) to hazardous substances consent having effect by virtue of section 11 or 12 with respect to land for which that authority is, F48 . . ., the hazardous substances authority;

(c) to revocations or modifications of hazardous substances consent granted with respect to such land; and

(d) to directions under section 27 sent to the authority by the Secretary of State [F49 ;

and every such register shall also contain such information as may be prescribed as to the manner in which applications for hazardous substances consent have been dealt with.]

F50 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Every register kept under this section shall be available for inspection by the public at all reasonable hours.

Textual Amendments

F46 Words repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

F47 Words "made to that authority" and para. (aa) substituted (1.1.1992) for the words following the word "consent" by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 2(4)(a); S.I. 1991/2829, art. 3

F48 Words repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

F49 Words inserted (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 2(4)(b); S.I. 1991/2829, art. 3

F50 S. 28(2) repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

Commencement Information

I30 S. 28 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 28 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

29 Health and safety requirements. E+W

(1) Nothing in—

(a) any hazardous substances consent granted or deemed to be granted or having effect by virtue of this Act; or

(b) any hazardous substances contravention notice issued under section 24,

shall require or allow anything to be done in contravention of any of the relevant statutory provisions or any prohibition notice or improvement notice served under or by virtue of any of those provisions.

(2) To the extent that such a consent or notice purports to require or allow any such thing to be done, it shall be void.

(3) Where it appears to a hazardous substances authority who have granted, or are deemed to have granted, a hazardous substances consent or who have issued a hazardous substances contravention notice that the consent or notice or part of it is rendered void by subsection (2), the authority shall, as soon as is reasonably practicable, consult the [F51 Health and Safety Executive] with regard to the matter.

(4) If the [F51 Health and Safety Executive] advise the authority that the consent or notice is rendered wholly void, the authority shall revoke it.

(5) If they advise that part of the consent or notice is rendered void, the authority shall so modify it as to render it wholly operative.

(6) In this section—

• F52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• “relevant statutory provisions”, “improvement notice” and “prohibition notice” have the same meanings as in Part I of the M5 Health and Safety at Work etc. Act 1974.

Textual Amendments

F51 Words "Health and Safety Executive" substituted (1.1.1992) for words "appropriate body" by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 2(5); S.I. 1991/2829, art. 3

F52 Definition and word "and" repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

Commencement Information

I31 S. 29 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 29 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

Marginal Citations

M5 1974 c. 37.

General E+W

30 Application of this Act to certain authorities and persons. E+W

(1) The provisions of this Act shall have effect, subject to such exceptions and modifications as may be prescribed, in relation to granting hazardous substances consent for authorities who are hazardous substances authorities F53 . . .

(2) Subject to the provisions of section 12, any such regulations may in particular provide for securing—

(a) that any application by such an authority for hazardous substances consent in respect of the presence of a hazardous substance on, over or under land shall be made to the Secretary of State and not to the hazardous substances authority;

(b) that any order or notice authorised to be made, issued or served under those provisions shall be made, issued or served by the Secretary of State and not by the hazardous substances authority.

Textual Amendments

F53 Words repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

Commencement Information

I32 S. 30 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 30 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

31 Exercise of powers in relation to Crown land. E+W

(1) Notwithstanding any interest of the Crown in Crown land, but subject to subsection (2), any restrictions imposed or powers conferred by sections 4 to 29 (except section 22) shall apply and be exercisable in relation to Crown land to the extent of any interest in it for the time being held otherwise than by or on behalf of the Crown.

(2) Except with the consent of the appropriate authority, no order or notice shall be made, issued or served under any of the provisions of section 14, 15 [F54 24 or 26AA] in relation to land which for the time being is Crown land.

(3) In this section—

• “Crown land” means land in which there is a Crown interest or a Duchy interest;

• “Crown interest” means an interest belonging to Her Majesty in right of the Crown, or belonging to a government department or held in trust for Her Majesty for the purposes of a government department;

• “Duchy interest” means an interest belonging to Her Majesty in right of the Duchy of Lancaster, or belonging to the Duchy of Cornwall.

(4) A person who is entitled to occupy Crown land by virtue of a licence in writing shall be treated for the purposes of subsection (1) as having an interest in land.

(5) For the purposes of this section “the appropriate authority”, in relation to any land—

(a) in the case of land belonging to Her Majesty in right of the Crown and forming part of the Crown Estate, means the Crown Estate Commissioners, and, in relation to any other land belonging to Her Majesty in right of the Crown, means the government department having the management of that land;

(b) in relation to land belonging to Her Majesty in right of the Duchy of Lancaster, means the Chancellor of the Duchy;

(c) in relation to land belonging to the Duchy of Cornwall, means such person as the Duke of Cornwall, or the possessor for the time being of the Duchy of Cornwall, appoints;

(d) in the case of land belonging to a government department or held in trust for Her Majesty for the purposes of a government department, means that department.

(6) If any question arises as to what authority is the appropriate authority in relation to any land, that question shall be referred to the Treasury, whose decision shall be final.

Textual Amendments

F54 Words in s. 31(2) substituted (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. II para. 31 (with s. 84(5); S.I. 1991/2905, art. 3

Modifications etc. (not altering text)

C31 S. 31 amended (25.9.1991) by Atomic Weapons Establishment Act 1991 (c. 46, SIF 8), ss. 3, 6(2), Sch. para. 10 (with s. 1)

Commencement Information

I33 S. 31 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 31 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

32 Application for hazardous substances consent in anticipation of disposal of Crown land. E+W

(1) Subsections (2) to (4) have effect for the purpose of enabling Crown land, or an interest in Crown land, to be disposed of with the benefit of hazardous substances consent.

(2) Notwithstanding the interest of the Crown in the land in question, an application for such consent may be made—

(a) by the appropriate authority; or

(b) by any person authorised by that authority in writing;

and, subject to subsections (3) and (4), all the statutory provisions relating to the making and determination of such an application shall accordingly apply as if the land were not Crown land.

(3) Any hazardous substances consent granted by virtue of this section shall apply only—

(a) to the presence of the substance to which the consent relates after the land in question has ceased to be Crown land; and

(b) so long as that land continues to be Crown land, to the presence of the substance by virtue of a private interest in the land.

(4) The Secretary of State may by regulations—

(a) modify or exclude any of the statutory provisions referred to in subsection (2) in their application by virtue of that subsection and any other statutory provisions in their application to consents granted by virtue of this section;

(b) make provision for requiring a hazardous substances authority to be notified of any disposal of, or of an interest in, any Crown land in respect of which an application has been made by virtue of this section; and

(c) make such other provision in relation to the making and determination of applications by virtue of this section as he thinks necessary or expedient.

(5) This section shall not be construed as affecting any right to apply for hazardous substances consent in respect of Crown land in a case in which such an application can be made by virtue of a private interest in the land.

(6) In this section—

• “private interest” means an interest which is neither a Crown interest nor a Duchy interest;

• “statutory provisions” means provisions contained in or having effect under any enactment;

and references to the disposal of an interest in Crown land include references to the grant of an interest in such land.

(7) Subsections (3), (5) and (6) of section 31 apply for the purposes of this section as they apply for the purposes of that section.

(8) A person who is entitled to occupy Crown land by virtue of a licence in writing shall be treated for the purposes of this section as having an interest in land and references to the disposal or grant of an interest in Crown land and to a private interest in such land shall be construed accordingly.

Commencement Information

I34 S. 32 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 32 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

F55 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . E+W

Textual Amendments

F55 S. 33 repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

34 Ecclesiastical property. E+W

(1) Where under any of the provisions of this Act a notice or copy of a notice is required to be served on an owner of land and the land is ecclesiastical property, a similar notice or copy of a notice shall be served on the Church Commissioners.

(2) Where the fee simple of any ecclesiastical property is in abeyance and the property is situated elsewhere than in Wales, then for the purposes of this section, sections 8 and 22 and section 31(1), so far as it applies to section 8, and any other provisions of the planning Acts so far as they apply, or have effect for the purpose of, any of those provisions, the fee simple shall be treated as being vested in the Church Commissioners.

(3) Any compensation payable under section 16 in respect of land which is ecclesiastical property—

(a) shall [F56 in the case of land which is not diocesan glebe land, be paid to the Church Commissioners; and

(b) shall, in the case of diocesan glebe land, be paid to the Diocesan Board of Finance in which the land is vested,

and shall (in either case).] be applied by them for the purposes for which the proceeds of a sale by agreement of the land would be applicable under any enactment or Measure authorising or disposing of the proceeds of such a sale.

(4) In this section “ecclesiastical property” means land belonging to an ecclesiastical benefice, or being or forming part of a church subject to the jurisdiction of a bishop of any diocese or the site of such a church, or being or forming part of a burial ground subject to such jurisdiction [F57 or being diocesan glebe land; and “Diocesan Board of Finance” and “diocesan glebe land” have the same meaning as in the Endowments and Glebe Measure 1976].

Textual Amendments

F56 Words in s. 34(3) substituted (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 28:1), ss. 70, Sch. 15 Pt. II para. 32(1) (with s. 84(5))

F57 Words in s. 34(4) inserted (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 28:1), ss. 70, Sch. 15 Pt. II para. 32(2) (with s. 84(5))

Commencement Information

I35 S. 34 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 34 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

35 Application of Act to Isles of Scilly. E+W

In relation to land in the Isles of Scilly the provisions of this Act, and any other provisions of the planning Acts in so far as they apply or have effect for the purposes of those provisions, shall have effect as if those Isles were a district and the Council of the Isles were the council of that district.

Commencement Information

I36 S. 35 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3, s. 35 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

36 Rights of entry. E+W

(1) Any person duly authorised in writing by the Secretary of State or by a hazardous substances authority may at any reasonable time enter any land for the purpose of surveying it in connection with—

(a) any application for hazardous substances consent;

(b) any proposal to issue a hazardous substances contravention notice.

(2) Any person duly authorised in writing by the Secretary of State or by a hazardous substances authority may at any reasonable time enter any land for the purpose of ascertaining whether an offence appears to have been committed under section 23.

(3) Any person who is an officer of the Valuation Office or a person duly authorised in writing by a hazardous substances authority may at any reasonable time enter any land for the purpose of surveying it, or estimating its value, in connection with a claim for compensation in respect of that land or any other land made by virtue of section 16 or 19.

(4) Any person duly authorised in writing by the Secretary of State or by a hazardous substances authority may at any reasonable time enter any land in respect of which a hazardous substances contravention notice [F58 or a notice under section 183 of the principal Act (as applied by regulations made by virtue of section 25)] has been issued for the purpose of ascertaining whether the notice has been complied with.

(5) F59 . . ., any power conferred by this section to survey land shall be construed as including power to search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals in it.

F60 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F58 Words in s. 36(4) inserted (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. I para. 16(2) (with s. 84(5)); S.I. 1991/2905, art. 3

F59 Words in s. 36(5) repealed (2.1.1992) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), ss. 25, 84(6), Sch. 3 Pt. II para. 32, Sch. 19 Pt. I (with s. 84(5)); S.I. 1991/2905, art. 3

F60 Ss. 36A, 36B substituted (2.1.1992) for s. 36(6) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), ss. 25, 84(2), Sch. 3 Pt. I para. 16(3) (with s. 84(5)); S.I. 1991/2905, art. 3

Modifications etc. (not altering text)

C32 S. 36 Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art.3

Commencement Information

I37 S. 36 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 36 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

[F61 36A Warrants to enter land. E+W

(1) If it is shown to the satisfaction of a justice of the peace on sworn information in writing—

(a) that there are reasonable grounds for entering any land for any of the purposes mentioned in section 36; and

(b) that—

(i) admission to the land has been refused, or a refusal is reasonably apprehended; or

(ii) the case is one of urgency,

the justice may issue a warrant authorising any person duly authorised in writing by a hazardous substances authority to enter the land.

(2) For the purposes of subsection (1)(b)(i) admission to land shall be regarded as having been refused if no reply is received to a request for admission within a reasonable period.

(3) A warrant authorises entry on one occasion only and that entry must be—

(a) within one month from the date of the issue of the warrant; and

(b) at a reasonable hour, unless the case is one of urgency.]

Textual Amendments

F61 Ss. 36A, 36B substituted (2.1.1992) for s. 36(6) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, 84(2), Sch. 3 Pt. I para. 16(3) (with s. 84(5)); S.I. 1991/2905, art. 3

Modifications etc. (not altering text)

C33 S. 36A Power to apply conferred (10.11.1993) by 1993 c. 28, ss. 171(4)(c); S.I. 1993/2762, art. 3

Commencement Information

I38 S. 36A wholly in force at 1.6.1992 see S.I. 1992/725, art. 3, s. 36A in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

[F62 36B Rights of entry: supplementary provisions. E+W

(1) A person authorised to enter land in pursuance of a right of entry conferred under or by virtue of section 36 or 36A (referred to in this section as “a right of entry”)—

(a) shall, if so required, produce evidence of his authority and state the purpose of his entry before so entering;

(b) may take with him such other persons as may be necessary; and

(c) on leaving the land shall, if the owner or occupier is not then present, leave it as effectively secured against trespassers as he found it.

(2) Any person who wilfully obstructs a person acting in the exercise of a right of entry shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3) If any person who enters any land, in exercise of a right of entry, discloses to any person any information obtained by him while on the land as to any manufacturing process or trade secret, he shall be guilty of an offence.

(4) Subsection (3) does not apply if the disclosure is made by a person in the course of performing his duty in connection with the purpose for which he was authorised to enter the land.

(5) A person who is guilty of an offence under subsection (3) shall be liable—

(a) on summary conviction to a fine not exceeding the statutory maximum, or

(b) on conviction on indictment to imprisonment for a term not exceeding two years or a fine or both.

(6) If any damage is caused to land or chattels in the exercise of—

(a) a right of entry; or

(b) a power conferred by virtue of section 36(5) in connection with such a right,

compensation may be recovered by any person suffering the damage from the authority who gave the written authority for the entry or, as the case may be, the Secretary of State; and section 118 of the principal Act shall apply in relation to compensation under this section as it applies in relation to compensation under Part IV of that Act.

(7) The authority of the appropriate Minister shall be required for the carrying out of works in the exercise of a power under section 36 if—

(a) the land in question is held by statutory undertakers, and

(b) they object to the proposed works on the ground that the execution of the works would be seriously detrimental to the carrying on of their undertaking.

(8) Section 265(1) and (3) of the principal Act (meaning of “appropriate Minister”) applies for the purposes of subsection (7) as it applies for the purposes of section 325(9) of the principal Act.]

Textual Amendments

F62 Ss. 36A, 36B substituted (2.1.1992) for s. 36(6) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), s. 25, Sch. 3 Pt. I para. 16(3) (with s. 84(5)); S.I. 1991/2905, art. 3

Commencement Information

I39 S. 36B wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 36B in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

37 Application of certain general provisions of principal Act. E+W

(1) The provisions of the principal Act specified in subsection (2) shall apply for the purposes of this Act as they apply for the purposes of that Act.

(2) Those provisions are—

• section 320 (local inquiries)

• section [F63 322 (orders as to costs of parties where no inquiry held)]

• section [F64 322A (orders as to costs: supplementary)] 323 (procedure on certain appeals and applications)

• section 329 (service of notices)

• section 330 (power to require information as to interests in land)

• section 331 (offences by corporations).

Textual Amendments

F63 Words omitted (temp.) by virtue of Planning (Consequential Provisions) Act 1990 (c. 11, SIF 123:1, 2), s. 6, Sch. 4 paras. 1, 14 (which temp. omission falls (2.1.1992) for specified purposes only by virtue of S.I. 1991/2698, arts. 3, 4)

F64 Words in s. 37(2) inserted (2.1.1992 except for specified purposes) by Planning and Compensation Act 1991 (c. 34, SIF 123:1), ss. 30(2), 84(2) (with s. 84(5)); S.I. 1991/2728, arts. 3, 4

Commencement Information

I40 S. 37 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 37 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

38 Financial provisions. E+W

(1) Where—

(a) compensation is payable by a local authority under this Act in consequence of any decision or order given or made under sections 4 to 21 or the Schedule,

(b) that decision or order was given or made wholly or partly in the interest of a service which is provided by a government department and the cost of which is defrayed out of money provided by Parliament,

the Minister responsible for the administration of that service may pay to that authority a contribution of such amount as he may with the consent of the Treasury determine.

(2) Any local authority and any statutory undertakers may contribute towards any expenses incurred by a hazardous substances authority F65 . . .in or in connection with the performance of any of their functions under sections 4 to 29.

(3) Where any expenses are incurred by a local authority in the payment of compensation payable in consequence of anything done under sections 4 to 21, the Secretary of State may, if it appears to him to be expedient to do so, require any other local authority to contribute towards those expenses such sum as appears to him to be reasonable, having regard to any benefit accruing to that authority by reason of the proceeding giving rise to the compensation.

(4) For the purposes of subsections (2) and (3), contributions made by an authority towards the expenditure of a joint advisory committee shall be deemed to be expenses incurred by that authority for the purposes for which that expenditure is incurred by the committee.

(5) The council of a county may direct that any expenses incurred by them under sections [F66 1, 3], 16, 20, 21 [F67 25(5)], 31, 34 and 36, the previous provisions of this section or the Schedule shall be treated as special expenses of a county council chargeable upon such part of the county as may be specified in the directions.

(6) There shall be paid out of money provided by Parliament any expenses of the Secretary of State or any government department under this Act.

(7) Any sums received by the Secretary of State under this Act shall be paid into the Consolidated Fund.

Textual Amendments

F65 Words repealed (1.1.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art. 3

F66 Words "1, 3" substituted (1.1.1992) for words "1 to 3" by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 2(6); S.I. 1991/2829, art. 3

F67 In s. 38(5) word "25(5)" inserted (temp.) by virtue of Planning (Consequential Provisions) Act 1990 (c. 11, SIF 123:1, 2), s. 6, Sch. 4 paras. 1, 15 (which temp. insertion falls (2.1.1992) for specified purposes only by virtue of S.I. 1991/2698, arts. 3, 4)

Modifications etc. (not altering text)

C34 S. 38(1)(2) extended (19.9.1995) by 1995 c. 25, ss. 70, 125(2), Sch. 9 para. 14(2) (with ss. 7(6), 115, 117, Sch. 8 para. 7)

Commencement Information

I41 S. 38 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 38 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

Supplemental E+W

39 Interpretation. E+W

(1) In this Act —

• “contravention of hazardous substances control” has the meaning given in section 23(2);

• “hazardous substances authority” is to be construed in accordance with sections 1 [F68 and]3;

• “hazardous substances consent” means consent required by section 4;

• “hazardous substances contravention notice” means such a notice as is mentioned in section 24(1);

• “the principal Act” means the M6 Town and Country Planning Act 1990.

(2) In this Act, except in so far as the context otherwise requires and subject to the following provisions of this section, the following expressions have the same meaning as in the principal Act—

• F69 . . .;

• F69 . . .;

• “the Broads”;

• “development”;

• “development plan”;

• “enactment”;

• “functions”;

• “government department”;

• “joint planning board”;

• “land”;

• “local authority”;

• “local planning authority”;

• “London borough”;

• “mineral working deposit”;

• “minerals”;

• “Minister”;

• F69 . . .;

• “owner”;

• “the planning Acts”;

• “prescribed”;

• “public gas supplier”;

• “statutory undertakers”;

• “tenancy”;

• “urban development area” and “urban development corporation”;

• “use”;

• “Valuation Office”;

but this subsection does not affect the meaning of “owner” in section 8.

(3) For the purposes of sections 4 to 21 and 23 to 26 any two bodies corporate are to be treated as being one person if—

(a) one of them is a body corporate of which the other is a subsidiary (within the meaning of section 736 of the M7 Companies Act 1985); or

(b) both of them are subsidiaries (within the meaning of that Act) of one and the same body corporate.

(4) For the purposes of sections F70 . . .12 and 38(2) a public gas supplier shall be deemed to be a statutory undertaker F70 . . ..

(5) For the purposes of sections F71 . . .12 and 38(2) the National Rivers Authority and every water or sewerage undertaker shall be deemed to be a statutory undertaker F71 . . .

(6) For the purposes of section 38(2) the Post Office, the Civil Aviation Authority and any holder of a licence under section 6(1) of the M8 Electricity Act 1989 shall be deemed to be statutory undertakers F70 . . ..

F72 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F72 (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F68 Word “and” substituted (01.01.1992) for “to” by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 144, Sch. 13 Pt. I para. 2(7); S.I. 1991/2829, art.3

F69 Entries repealed (01.01.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art.3

F70 Words repealed (01.01.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art.3

F71 Words repealed (01.01.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art.3

F72 S. 39(7)(8) repealed (01.01.1992) by Environmental Protection Act 1990 (c. 43, SIF 46:4), s. 162(2), Sch. 16 Pt. VII; S.I. 1991/2829, art.3

Modifications etc. (not altering text)

C35 S. 39 extended (1.3.1996) by 1995 c. 45, s. 16(1), Sch. 4 para. 2(2)(k); S.I. 1996/218, art. 2

Commencement Information

I42 S. 39 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 39 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

Marginal Citations

M6 1990 c. 8.

M7 1985 c. 6.

M8 1989 c. 29.

40 Regulations. E+W

(1) The Secretary of State may make regulations under this Act for any purpose for which regulations are authorised or required to be made under this Act, not being a purpose for which regulations are authorised or required to be made by another Minister.

(2) Any power conferred by this Act to make regulations shall be exercisable by statutory instrument.

(3) Any statutory instrument containing regulations made under this Act shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Commencement Information

I43 S. 40 wholly in force at 1.6.1992 see S.I. 1992/725, art. 3; s. 40 in force for certain purposes at 11.3.1992 see S.I. 1992/725, art. 2

41 Short title, commencement and extent. E+W

(1) This Act may be cited as the Planning (Hazardous Substances) Act 1990.

(2) If an order has been made under section 57(2) of the M9 Housing and Planning Act 1986 appointing a date during or at the end of the period of three months beginning with the day on which this Act is passed as the date on which all or any of the provisions of that Act relating to control over hazardous substances come into force, then the corresponding provisions of this Act (and, subject to Schedule 4 to the M10 Planning (Consequential Provisions) Act 1990, the remaining provisions of it so far as they relate to them) shall come into force at the end of that period.

(3) Except so far as subsection (2) applies, the provisions of this Act (other than this section) shall come into force on such day as may be appointed by the Secretary of State by order made by statutory instrument and—

(a) different days may be appointed for different provisions or for different purposes; and

(b) an order may make such transitional provision as the Secretary of State thinks appropriate.

(4) This Act extends to England and Wales only.

Subordinate Legislation Made

P1 S. 41(3) power exercised: 11.3.1992 and 1.6.1992 appointed, see S.I. 1992/725

Marginal Citations

M9 1986 c. 63.

M10 1990 c. 11.