C1C3C4C5C2F1Part IIA Contaminated Land

Annotations:
Amendments (Textual)
F1

Pt. 2A (ss. 78A-78YC) inserted (in force at 21.9.1995 for certain purposes only, at 1.4.2000 for E. in so far as not already in force, at 14.7.2000 for S. for certain purposes and otherwise 14.7.2000) by 1995 c. 25, s. 57, (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3; S.I. 2000/340, art. 2(a); S.S.I. 2000/180, art. 2(1)(a)(2); S.I. 2000/1986, art. 2

Modifications etc. (not altering text)
C1

Pt. 2A (ss. 78A-78YC) modified (1.2.1996) by 1995 c. 25, s. 5(5)(e), (with ss. 115, 117); S.I. 1996/186, art.2.

Pt. 2A (ss. 78A-78YC) modified (1.4.1996) by 1995 c. 25, s. 33(5)(e), (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3.

C2

Pt. 2A (ss. 78A-78YC) applied (with modifications) (S.) (1.4.2007 for certain purposes, 30.10.2007 otherwise) by The Radioactive Contaminated Land (Scotland) Regulations (S.S.I. 2007/179), regs. 1(1)(2), 2-15 (as amended: (10.12.2007) by S.I. 2007/3240, reg. 3 (with reg. 2); (26.6.2009) by S.S.I. 2009/202, regs. 1, 2; (30.9.2010) by S.I. 2010/2153, regs. 1, 2, 3; (coming into force in accordance with art. 1(2)-(5) of the amending S.I.) by The Nuclear Installations (Liability for Damage) Order 2016 (S.I. 2016/562), art. 1(2), Sch. 2 para. 11 (with art. 40); (22.5.2019) by The Radiation (Emergency Preparedness and Public Information) Regulations 2019 (S.I. 2019/703), reg. 1(1), Sch. 10 para. 8 (with reg. 3))

F278X Supplementary provisions.

1

Where it appears to a local authority that two or more different sites, when considered together, are in such a condition, by reason of substances in, on or under the land, that—

a

significant harm is being caused or there is a significant possibility of such harm being caused, or

F7b

significant pollution of controlled waters is being caused or there is a significant possibility of such pollution being caused,

this Part shall apply in relation to each of those sites, whether or not the condition of the land at any of them, when considered alone, appears to the authority to be such that significant harmF10, or significant pollution of controlled waters, is being caused, or there is a significant possibility of such harm or pollution being caused.

2

Where it appears to a local authority that any land outside, but adjoining or adjacent to, its area is in such a condition, by reason of substances in, on or under the land, that significant harmF12, or significant pollution of controlled waters, is being caused, or there is a significant possibility of such harm or pollution being caused within its area—

a

the authority may, in exercising its functions under this Part, treat that land as if it were land situated within its area; and

b

except in this subsection, any reference—

i

to land within the area of a local authority, or

ii

to the local authority in whose area any land is situated,

shall be construed accordingly;

but this subsection is without prejudice to the functions of the local authority in whose area the land is in fact situated.

3

A person acting in a relevant capacity—

a

shall not thereby be personally liable, under this Part, to bear the whole or any part of the cost of doing any thing by way of remediation, unless that thing is to any extent referable to substances whose presence in, on or under the contaminated land in question is a result of any act done or omission made by him which it was unreasonable for a person acting in that capacity to do or make; and

b

shall not thereby be guilty of an offence under or by virtue of section 78M above unless the requirement which has not been complied with is a requirement to do some particular thing for which he is personally liable to bear the whole or any part of the cost.

4

In subsection (3) above, “person acting in a relevant capacity” means—

a

a person acting as an insolvency practitioner, within the meaning of section 388 of the M1Insolvency Act 1986 (including that section as it applies in relation to an insolvent partnership by virtue of any order made under section 421 of that Act);

b

the official receiver acting in a capacity in which he would be regarded as acting as an insolvency practitioner within the meaning of section 388 of the M2Insolvency Act 1986 if subsection (5) of that section were disregarded;

c

the official receiver acting as receiver or manager;

d

a person acting as a special manager under section 177 or 370 of the M3Insolvency Act 1986;

e

the Accountant in Bankruptcy acting as F6trustee or interim trustee in a sequestration (within the meaning of the M4Bankruptcy (Scotland) Act F82016 );

f

a person acting as a receiver or receiver and manager—

i

under or by virtue of any enactment; or

ii

by virtue of his appointment as such by an order of a court or by any other instrument.

5

Regulations may make different provision for different cases or circumstances.

F278X Supplementary provisions.

1

Where it appears to a local authority that two or more different sites, when considered together, are in such a condition, by reason of substances in, on or under the land, that—

a

significant harm is being caused or there is a significant possibility of such harm being caused, or

F3b

significant pollution of the water environment, is being caused, or there is a significant possibility of such pollution being caused,

this Part shall apply in relation to each of those sites, whether or not the condition of the land at any of them, when considered alone, appears to the authority to be such that significant harm F4, or significant pollution of the water environment, is being caused, or there is a significant possibility of such harm or pollution being caused.

2

Where it appears to a local authority that any land outside, but adjoining or adjacent to, its area is in such a condition, by reason of substances in, on or under the land, that significant harm F5, or significant pollution of the water environment, is being caused, or there is a significant possibility of such harm or pollution being caused within its area—

a

the authority may, in exercising its functions under this Part, treat that land as if it were land situated within its area; and

b

except in this subsection, any reference—

i

to land within the area of a local authority, or

ii

to the local authority in whose area any land is situated,

shall be construed accordingly;

but this subsection is without prejudice to the functions of the local authority in whose area the land is in fact situated.

3

A person acting in a relevant capacity—

a

shall not thereby be personally liable, under this Part, to bear the whole or any part of the cost of doing any thing by way of remediation, unless that thing is to any extent referable to substances whose presence in, on or under the contaminated land in question is a result of any act done or omission made by him which it was unreasonable for a person acting in that capacity to do or make; and

b

shall not thereby be guilty of an offence under or by virtue of section 78M above unless the requirement which has not been complied with is a requirement to do some particular thing for which he is personally liable to bear the whole or any part of the cost.

4

In subsection (3) above, “person acting in a relevant capacity” means—

a

a person acting as an insolvency practitioner, within the meaning of section 388 of the M1Insolvency Act 1986 (including that section as it applies in relation to an insolvent partnership by virtue of any order made under section 421 of that Act);

b

the official receiver acting in a capacity in which he would be regarded as acting as an insolvency practitioner within the meaning of section 388 of the M2Insolvency Act 1986 if subsection (5) of that section were disregarded;

c

the official receiver acting as receiver or manager;

d

a person acting as a special manager under section 177 or 370 of the M3Insolvency Act 1986;

e

the Accountant in Bankruptcy acting as F6trustee or interim trustee in a sequestration (within the meaning of the M4Bankruptcy (Scotland) Act F82016);

f

a person acting as a receiver or receiver and manager—

i

under or by virtue of any enactment; or

ii

by virtue of his appointment as such by an order of a court or by any other instrument.

F9g

in relation to property and rights that have vested as bona vacantia in the Crown, or that have fallen to the Crown as ultimus haeres, the Queen's and Lord Treasurer's Remembrancer.

F114A

In subsection (4)(f)(i) above, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.

5

Regulations may make different provision for different cases or circumstances.