Water Resources Act 1991

Section 88.

SCHEDULE 10 E+W DISCHARGE CONSENTS

Valid from 21/11/1996

F1 General review of consents E+W

Textual Amendments

F1 Sch. 10 substituted (21.11.1996 for certain purposes otherwise 31.12.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 183 (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

F2 9 (1) If it appears appropriate to the Secretary of State to do so he may at any time direct the Agency to review— E+W

(a) the consents given under paragraph 3 or 6 above, or

(b) any description of such consents,

and the conditions (if any) to which those consents are subject.

(2) A direction given by virtue of sub-paragraph (1) above—

(a) shall specify the purpose for which, and

(b) may specify the manner in which,

the review is to be conducted.

(3) After carrying out a review pursuant to a direction given by virtue of sub-paragraph (1) above, the Agency shall submit to the Secretary of State its proposals (if any) for—

(a) the modification of the conditions of any consent reviewed pursuant to the direction, or

(b) in the case of any unconditional consent reviewed pursuant to the direction, subjecting the consent to conditions.

(4) Where the Secretary of State has received any proposals from the Agency under sub-paragraph (3) above in relation to any consent he may, if it appears appropriate to him to do so, direct the Agency to do, in relation to that consent, anything mentioned in paragraph 7(2)(b) or (c) above.

(5) A direction given by virtue of sub-paragraph (4) above may only direct the Agency to do, in relation to any consent,—

(a) any such thing as the Agency has proposed should be done in relation to that consent, or

(b) any such thing with such modifications as appear to the Secretary of State to be appropriate.

Textual Amendments

F2 Sch. 10 substituted (21.11.1996 for certain purposes otherwise 31.12.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 183 (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

Valid from 21/11/1996

F3 Applications for variation E+W

Textual Amendments

F3 Sch. 10 substituted (21.11.1996 for certain purposes otherwise 31.12.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 183 (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

F4 10 (1) The holder of a consent under paragraph 3 or 6 above may apply to the Agency, on a form provided for the purpose by the Agency, for the variation of the consent. E+W

(2) The provisions of paragraphs 1 to 5 above shall apply (with the necessary modifications) to applications under sub-paragraph (1) above, and to the variation of consents in pursuance of such applications, as they apply to applications for, and the grant of, consents.

Textual Amendments

F4 Sch. 10 substituted (21.11.1996 for certain purposes otherwise 31.12.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 183 (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

Valid from 21/11/1996

F5 Transfer of consents E+W

Textual Amendments

F5 Sch. 10 substituted (21.11.1996 for certain purposes otherwise 31.12.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 183 (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

F6 11 (1) A consent under paragraph 3 or 6 above may be transferred by the holder to a person who proposes to carry on the discharges in place of the holder. E+W

(2) On the death of the holder of a consent under paragraph 3 or 6 above, the consent shall, subject to sub-paragraph (4) below, be regarded as property forming part of the deceased’s personal estate, whether or not it would be so regarded apart from this sub-paragraph, and shall accordingly vest in his personal representatives.

(3) If a bankruptcy order is made against the holder of a consent under paragraph 3 or 6 above, the consent shall, subject to sub-paragraph (4) below, be regarded for the purposes of any of the Second Group of Parts of the M1 Insolvency Act 1986 (insolvency of individuals; bankruptcy), as property forming part of the bankrupt’s estate, whether or not it would be so regarded apart from this sub-paragraph, and shall accordingly vest as such in the trustee in bankruptcy.

(4) Notwithstanding anything in the foregoing provisions of this paragraph, a consent under paragraph 3 or 6 above (and the obligations arising out of, or incidental to, such a consent) shall not be capable of being disclaimed.

(5) A consent under paragraph 3 or 6 above which is transferred to, or which vests in, a person under this section shall have effect on and after the date of the transfer or vesting as if it had been granted to that person under paragraph 3 or 6 above, subject to the same conditions as were attached to it immediately before that date.

(6) Where a consent under paragraph 3 or 6 above is transferred under sub-paragraph (1) above, the person from whom it is transferred shall give notice of that fact to the Agency not later than the end of the period of twenty-one days beginning with the date of the transfer.

(7) Where a consent under paragraph 3 or 6 above vests in any person as mentioned in sub-paragraph (2) or (3) above, that person shall give notice of that fact to the Agency not later than the end of the period of fifteen months beginning with the date of the vesting.

(8) If—

(a) a consent under paragraph 3 or 6 above vests in any person as mentioned in sub-paragraph (2) or (3) above, but

(b) that person fails to give the notice required by sub-paragraph (7) above within the period there mentioned,

the consent, to the extent that it permits the making of any discharges, shall cease to have effect.

(9) A person who fails to give a notice which he is required by sub-paragraph (6) or (7) above to give shall be guilty of an offence and liable—

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

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

Textual Amendments

F6 Sch. 10 substituted (21.11.1996 for certain purposes otherwise 31.12.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 183 (with ss. 7(6), 115, 117); S.I. 1996/2909, arts. 2, 3 (with art. 4)

Modifications etc. (not altering text)

C1 Sch. 10 para. 11 applied (with modifications) (1.1.1999 for certain purposes otherwise 1.4.1999) by S.I. 1998/2746, reg. 14(4)

Marginal Citations

M1 1986 c. 45.

Applications for consents E+W

1 (1) An application for a consent, for the purposes of section 88(1)(a) of this Act, for any discharges shall be made to the [F7 Agency].

(2) An application under this paragraph shall be accompanied or supplemented by all such information as the [F7 Agency] may reasonably require; but, subject to paragraph 2(4) below and without prejudice to the effect (if any) of any other contravention of the requirements of this Schedule in relation to such an application, a failure to provide information in pursuance of this sub-paragraph, shall not invalidate an application.

(3) An application made in accordance with this paragraph which relates to proposed discharges at two or more places may be treated by the [F7 Agency] as separate applications for consents for discharges at each of those places.

(4) Where an application is made in accordance with this paragraph the [F7 Agency] shall—

(a) publish notice of the application, at least once in each of two successive weeks, in a newspaper or newspapers circulating in—

(i) the locality or localities in which the places are situated at which it is proposed in the application that the discharges should be made; and

(ii) the locality or localities appearing to the [F7 Agency] to be in the vicinity of any controlled waters which the [F7 Agency] considers likely to be affected by the proposed discharges;

(b) publish a copy of that notice in an edition of the London Gazette published no earlier than the day after the publication of the last of the notices to be published by virtue of paragraph (a) above;

(c) send a copy of the application to every local authority or water undertaker within whose area any of the proposed discharges is to occur;

(d) in the case of an application which relates to proposed discharges into coastal waters, relevant territorial waters or waters outside the seaward limits of relevant territorial waters, serve a copy of the application on each of the Ministers.

(5) The [F7 Agency] shall be entitled, on an application made in accordance with this paragraph, to disregard the provisions of paragraphs (a) to (c) of sub-paragraph (4) above if it proposes to give the consent applied for and considers that the discharges in question will have no appreciable effect on the waters into which it is proposed that they should be made.

(6) Where notice of an application under this paragraph is published by the [F7 Agency] under sub-paragraph (4) above, the [F7 Agency] shall be entitled to recover the expenses of publication from the applicant.

(7) If a person who proposes to make or has made an application under this paragraph (“the relevant application")—

(a) applies to the Secretary of State within the prescribed period for a certificate providing that the provisions of sub-paragraph (4) above and subsection (1) of section 190 of this Act shall not apply to—

(i) the relevant application;

(ii) any consent given or conditions imposed on the relevant application;

(iii) any sample of effluent taken from a discharge for which consent is given on the relevant application; or

(iv) information produced by analysis of such a sample;

and

(b) satisfies the Secretary of State that it would be contrary to the public interest or would prejudice, to an unreasonable degree, some private interest, by disclosing information about a trade secret, if a certificate were not issued under this sub-paragraph,

the Secretary of State may issue a certificate to that person providing that those provisions shall not apply to such of the things mentioned in paragraph (a) above as are specified in the certificate.

Textual Amendments

F7 Words in Sch. 10 para. 1 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Consideration and determination of applications E+W

2 (1) It shall be the duty of the [F8 Agency] to consider any written representations or objections with respect to an application under paragraph 1 above which are made to it in the period of six weeks beginning with the day of the publication of notice of the application in the London Gazette and are not withdrawn.

(2) On an application under paragraph 1 above the [F8 Agency] shall be under a duty, if the requirements of that paragraph are complied with, to consider whether to give the consent applied for, either unconditionally or subject to conditions, or to refuse it.

(3) Subject to sub-paragraph (4) and paragraph 3(5) below, on an application made in accordance with paragraph 1 above, the consent applied for shall be deemed to have been refused if it is not given within the period of four months beginning with the day on which the application is received or within such longer period as may be agreed in writing between the [F8 Agency] and the applicant.

(4) Where—

(a) any person, having made an application to the [F8 Agency] for a consent, has failed to comply with his obligation under paragraph 1(2) above to supplement that application with information required by the [F8 Agency]; and

(b) that requirement was made by the [F8 Agency] at such a time before the end of the period within which the [F8 Agency] is required to determine the application as gave that person a reasonable opportunity to provide the required information within that period,

the [F8 Agency] may delay its determination of the application until a reasonable time after the required information is provided.

(5) The conditions subject to which a consent may be given under this paragraph shall be such conditions as the [F8 Agency] may think fit and, in particular, may include conditions—

(a) as to the places at which the discharges to which the consent relates may be made and as to the design and construction of any outlets for the discharges;

(b) as to the nature, origin, composition, temperature, volume and rate of the discharges and as to the periods during which the discharges may be made;

(c) as to the steps to be taken, in relation to the discharges or by way of subjecting any substance likely to affect the description of matter discharged to treatment or any other process, for minimising the polluting effects of the discharges on any controlled waters;

(d) as to the provision of facilities for taking samples of the matter discharged and, in particular, as to the provision, maintenance and use of manholes, inspection chambers, observation wells and boreholes in connection with the discharges;

(e) as to the provision, maintenance and testing of meters for measuring or recording the volume and rate of the discharges and apparatus for determining the nature, composition and temperature of the discharges;

(f) as to the keeping of records of the nature, origin, composition, temperature, volume and rate of the discharges and, in particular, of records of readings of meters and other recording apparatus provided in accordance with any other condition attached to the consent; and

(g) as to the making of returns and the giving of other information to the [F8 Agency] about the nature, origin, composition, temperature, volume and rate of the discharges;

and it is hereby declared that a consent may be given under this paragraph subject to different conditions in respect of different periods.

(6) A consent for any discharges which is given under this paragraph is not limited to discharges by a particular person and, accordingly, extends to discharges which are made by any person.

Textual Amendments

F8 Words in Sch. 10 para. 2 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Notification of proposal to give consent E+W

3 (1) This paragraph applies where the [F9 Agency] proposes to give its consent under paragraph 2 above on an application in respect of which such representations or objections as the [F9 Agency] is required to consider under sub-paragraph (1) of that paragraph have been made.

(2) It shall be the duty of the [F9 Agency] to serve notice of the proposal on every person who made any such representations or objection; and any such notice shall include a statement of the effect of sub-paragraph (3) below.

(3) Any person who made any such representations or objection may, within the period of twenty-one days beginning with the day on which the notice of the proposal is served on him, in the prescribed manner request the Secretary of State to give a direction under paragraph 4(1) below in respect of the application.

(4) It shall be the duty of the [F9 Agency] not to give its consent on the application before the end of the period of twenty-one days mentioned in sub-paragraph (3) above and, if within that period—

(a) a request is made under sub-paragraph (3) above in respect of the application; and

(b) the person who makes that request serves notice of it on the [F9 Agency],

the [F9 Agency] shall not give its consent on the application unless the Secretary of State has served notice on the [F9 Agency] stating that he declines to comply with the request.

(5) Any period during which the [F9 Agency] is prohibited by virtue of sub-paragraph (4) above from giving its consent on the application shall be disregarded in determining whether the application is deemed to have been refused under paragraph 2(3) above.

Textual Amendments

F9 Words in Sch. 10 para. 3 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modifications etc. (not altering text)

C2 Sch. 10 para. 3 extended (1.4.1996) by 1995 c. 25, s. 120(2), Sch. 23 Pt. I para. 21(2)(a); S.I. 1996/186, art. 3

Reference to Secretary of State of certain applications for consent E+W

4 (1) The Secretary of State may, either in consequence of representations or objections made to him or otherwise, direct the [F10 Agency] to transmit to him for determination such applications for consent under paragraph 1 above as are specified in the direction or are of a description so specified.

(2) Where a direction is given to the [F10 Agency] under this paragraph, the [F10 Agency] shall comply with the direction and inform every applicant to whose application the direction relates of the transmission of his application to the Secretary of State.

(3) Paragraphs 1(4) to (6) and 2(1) above shall have effect in relation to an application transmitted to the Secretary of State under this paragraph with such modifications as may be prescribed.

(4) Where an application is transmitted to the Secretary of State under this paragraph, the Secretary of State may at any time after the application is transmitted and before it is granted or refused—

(a) cause a local inquiry to be held with respect to the application; or

(b) afford the applicant and the [F10 Agency] an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

(5) The Secretary of State shall exercise his power under sub-paragraph (4) above in any case where a request to be heard with respect to the application is made to him in the prescribed manner by the applicant or by the [F10 Agency].

(6) Where under this paragraph the Secretary of State affords to an applicant and the [F10 Agency] an opportunity of appearing before, and being heard by, a person appointed for the purpose, it shall be the duty of the Secretary of State to afford an opportunity of appearing before, and being heard by, that person to every person who has made any representations or objection to the Secretary of State with respect to the application in question.

(7) It shall be the duty of the Secretary of State, if the requirements of this paragraph and of any regulations made under it are complied with, to determine an application for consent transmitted to him by the [F10 Agency] under this paragraph by directing the [F10 Agency] to refuse its consent or to give its consent under paragraph 2 above (either unconditionally or subject to such conditions as are specified in the direction).

(8) In complying with a direction under sub-paragraph (7) above to give a consent the [F10 Agency] shall not be required to comply with any requirement imposed by paragraph 3 above.

(9) Without prejudice to any of the preceding provisions of this paragraph, the Secretary of State may by regulations make provision for the purposes of, and in connection with, the consideration and disposal by him of applications transmitted to him under this paragraph.

Textual Amendments

F10 Words in Sch. 10 para. 4 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Consents without applications E+W

5 (1) If it appears to the [F11 Agency]—

(a) that a person has caused or permitted effluent or other matter to be discharged in contravention—

(i) of the obligation imposed by virtue of section 85(3) of this Act; or

(ii) of any prohibition imposed under section 86 of this Act;

and

(b) that a similar contravention by that person is likely,

the [F11 Agency] may, if it thinks fit, serve on him an instrument in writing giving its consent, subject to any conditions specified in the instrument, for discharges of a description so specified.

(2) A consent given under this paragraph shall not relate to any discharge which occurred before the instrument containing the consent was served on the recipient of the instrument.

(3) Sub-paragraphs (5) and (6) of paragraph 2 above shall have effect in relation to a consent given under this paragraph as they have effect in relation to a consent given under that paragraph.

(4) Where a consent has been given under this paragraph, the [F11 Agency] shall, as soon as practicable after giving it—

(a) publish notice of the consent, at least once in each of two successive weeks, in a newspaper or newspapers circulating in—

(i) the locality or localities in which the places are situated at which discharges may be made in pursuance of the consent; and

(ii) the locality or localities appearing to the [F11 Agency] to be in the vicinity of any controlled waters which it considers likely to be affected by the discharges;

(b) publish a copy of that notice in an edition of the London Gazette published no earlier than the day after the publication of the last of the notices to be published by virtue of paragraph (a) above;

(c) send a copy of the instrument containing the consent to every local authority within whose area any of the discharges authorised by the consent may occur;

(d) in the case of a consent which relates to discharges into coastal waters, relevant territorial waters or waters outside the seaward limits of relevant territorial waters, serve a copy of the instrument containing the consent on each of the Ministers.

(5) It shall be the duty of the [F11 Agency] to consider any written representations or objections with respect to a consent under this paragraph which are made to it in the period of six weeks beginning with the day of the publication of notice of the consent in the London Gazette and are not withdrawn.

(6) Where notice of a consent is published by the [F11 Agency] under sub-paragraph (4) above, the [F11 Agency] shall be entitled to recover the expenses of publication from the person on whom the instrument containing the consent was served.

Textual Amendments

F11 Words in Sch. 10 para. 5 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Revocation of consents and alteration and imposition of conditions E+W

6 (1) It shall be the duty of the [F12 Agency] to review from time to time the consents given under paragraphs 2 and 5 above and the conditions (if any) to which the consents are subject.

(2) Subject to such restrictions on the exercise of the power conferred by this sub-paragraph as are imposed under paragraph 7 below, where the [F12 Agency] has reviewed a consent under this paragraph, it may by a notice served on the person making a discharge in pursuance of the consent—

(a) revoke the consent;

(b) make modifications of the conditions of the consent; or

(c) in the case of an unconditional consent, provide that it shall be subject to such conditions as may be specified in the notice.

(3) If on a review under sub-paragraph (1) above it appears to the [F12 Agency] that no discharge has been made in pursuance of the consent to which the review relates at any time during the preceding twelve months, the [F12 Agency] may revoke the consent by a notice served on the owner or occupier of the land from which discharges would be made in pursuance of the consent.

(4) If it appears to the Secretary of State appropriate to do so—

(a) for the purpose of enabling Her Majesty’s Government in the United Kingdom to give effect to any Community obligation or to any international agreement to which the United Kingdom is for the time being a party;

(b) for the protection of public health or of flora and fauna dependent on an aquatic environment; or

(c) in consequence of any representations or objections made to him or otherwise,

he may, subject to such restrictions on the exercise of the power conferred by virtue of paragraph (c) above as are imposed under paragraph 7 below, at any time direct the [F12 Agency], in relation to a consent given under paragraph 2 or 5 above, to do anything mentioned in sub-paragraph (2)(a) to (c) above.

(5) The [F12 Agency] shall be liable to pay compensation to any person in respect of any loss or damage sustained by that person as a result of the [F12 Agency’s] compliance with a direction given in relation to any consent by virtue of sub-paragraph (4)(b) above if—

(a) in complying with that direction the [F12 Agency] does anything which, apart from that direction, it would be precluded from doing by a restriction imposed under paragraph 7 below; and

(b) the direction is not shown to have been given in consequence of—

(i) a change of circumstances which could not reasonably have been foreseen at the beginning of the period to which the restriction relates; or

(ii) consideration by the Secretary of State of material information which was not reasonably available to the [F12 Agency] at the beginning of that period.

(6) For the purposes of sub-paragraph (5) above information is material, in relation to a consent, if it relates to any discharge made or to be made by virtue of the consent, to the interaction of any such discharge with any other discharge or to the combined effect of the matter discharged and any other matter.

Textual Amendments

F12 Words in Sch. 10 para. 6 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Restriction on variation and revocation of consent and previous variation E+W

7 (1) Each instrument signifying the consent of the [F13 Agency] under paragraph 2 or 5 above shall specify a period during which no notice by virtue of paragraph 6(2) or (4)(c) above shall be served in respect of the consent.

(2) Each notice served by the [F13 Agency] by virtue of paragraph 6(2) or (4)(c) above (except a notice which only revokes a consent) shall specify a period during which a subsequent such notice which alters the effect of the first-mentioned notice shall not be served.

(3) The period specified under sub-paragraph (1) or (2) above in relation to any consent shall not, unless the person who proposes to make or makes discharges in pursuance of the consent otherwise agrees, be less than the period of two years beginning—

(a) in the case of a period specified under sub-paragraph (1) above, with the day on which the consent takes effect; and

(b) in the case of a period specified under sub-paragraph (2) above, with the day on which the notice specifying that period is served.

(4) A restriction imposed under sub-paragraph (1) or (2) above shall not prevent the service by the [F13 Agency] of a notice by virtue of paragraph 6(2) or (4)(c) above in respect of a consent given under paragraph 5 above if—

(a) the notice is served not more than three months after the beginning of the period specified in paragraph 5(5) above for the making of representations and objections with respect to the consent; and

(b) the [F13 Agency] or, as the case may be, the Secretary of State considers, in consequence of any representations or objections received by it or him within that period, that it is appropriate for the notice to be served.

Textual Amendments

F13 Words in Sch. 10 para. 7 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

[F14 General review of consents] E+W

Textual Amendments

F14 Sch. 10 para. 8 and cross-heading added (21.9.1995) by 1995 c. 25, s. 120(1), Sch. 22 para. 182 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3

[F15 8 (1) If it appears appropriate to the Secretary of State to do so he may at any time direct the [F16 Agency] to review—

(a) the consents given under paragraphs 2 and 5 above, or

(b) any description of such consents,

and the conditions (if any) to which those consents are subject.

(2) A direction given by virtue of sub-paragraph (1) above—

(a) shall specify the purpose for which, and

(b) may specify the manner in which,

the review is to be conducted.

(3) After carrying out a review pursuant to a direction given by virtue of sub-paragraph (1) above, the [F16 Agency] shall submit to the Secretary of State its proposals (if any) for—

(a) the modification of the conditions of any consent reviewed pursuant to the direction, or

(b) in the case of any unconditional consent reviewed pursuant to the direction, subjecting the consent to conditions.

(4) Where the Secretary of State has received any proposals from the [F16 Agency] under sub-paragraph (3) above in relation to any consent he may, if it appears appropriate to him to do so, direct the [F16 Agency] to do, in relation to that consent, anything mentioned in paragraph 6(2)(b) or (c) above.

(5) A direction given by virtue of sub-paragraph (4) above may only direct the [F16 Agency] to do, in relation to any consent,—

(a) any such thing as the [F16 Agency] has proposed should be done in relation to that consent, or

(b) any such thing with such modifications as appear to the Secretary of State to be appropriate.]

Textual Amendments

F15 Sch. 10 para. 8 added (21.9.1995) by 1995 c. 25, s. 120(1), Sch. 22 para. 182 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3

F16 Words in Sch. 10 para. 8 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Textual Amendments

F14 Sch. 10 para. 8 and cross-heading added (21.9.1995) by 1995 c. 25, s. 120(1), Sch. 22 para. 182 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3

[F17 General review of consents] E+W

Textual Amendments

F17 Sch. 10 para. 8 and cross-heading added (21.9.1995) by 1995 c. 25, s. 120(1), Sch. 22 para. 182 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3

[F15 8 (1) If it appears appropriate to the Secretary of State to do so he may at any time direct the [F16 Agency] to review—

(a) the consents given under paragraphs 2 and 5 above, or

(b) any description of such consents,

and the conditions (if any) to which those consents are subject.

(2) A direction given by virtue of sub-paragraph (1) above—

(a) shall specify the purpose for which, and

(b) may specify the manner in which,

the review is to be conducted.

(3) After carrying out a review pursuant to a direction given by virtue of sub-paragraph (1) above, the [F16 Agency] shall submit to the Secretary of State its proposals (if any) for—

(a) the modification of the conditions of any consent reviewed pursuant to the direction, or

(b) in the case of any unconditional consent reviewed pursuant to the direction, subjecting the consent to conditions.

(4) Where the Secretary of State has received any proposals from the [F16 Agency] under sub-paragraph (3) above in relation to any consent he may, if it appears appropriate to him to do so, direct the [F16 Agency] to do, in relation to that consent, anything mentioned in paragraph 6(2)(b) or (c) above.

(5) A direction given by virtue of sub-paragraph (4) above may only direct the [F16 Agency] to do, in relation to any consent,—

(a) any such thing as the [F16 Agency] has proposed should be done in relation to that consent, or

(b) any such thing with such modifications as appear to the Secretary of State to be appropriate.]

Textual Amendments

F15 Sch. 10 para. 8 added (21.9.1995) by 1995 c. 25, s. 120(1), Sch. 22 para. 182 (with ss. 7(6), 115, 117); S.I. 1995/1983, art. 3

F16 Words in Sch. 10 para. 8 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Section 88.

SCHEDULE 10 E+W DISCHARGE CONSENTS

Applications for consents E+W

1 (1) An application for a consent, for the purposes of section 88(1)(a) of this Act, for any discharges shall be made to the [F7 Agency].

(2) An application under this paragraph shall be accompanied or supplemented by all such information as the [F7 Agency] may reasonably require; but, subject to paragraph 2(4) below and without prejudice to the effect (if any) of any other contravention of the requirements of this Schedule in relation to such an application, a failure to provide information in pursuance of this sub-paragraph, shall not invalidate an application.

(3) An application made in accordance with this paragraph which relates to proposed discharges at two or more places may be treated by the [F7 Agency] as separate applications for consents for discharges at each of those places.

(4) Where an application is made in accordance with this paragraph the [F7 Agency] shall—

(a) publish notice of the application, at least once in each of two successive weeks, in a newspaper or newspapers circulating in—

(i) the locality or localities in which the places are situated at which it is proposed in the application that the discharges should be made; and

(ii) the locality or localities appearing to the [F7 Agency] to be in the vicinity of any controlled waters which the [F7 Agency] considers likely to be affected by the proposed discharges;

(b) publish a copy of that notice in an edition of the London Gazette published no earlier than the day after the publication of the last of the notices to be published by virtue of paragraph (a) above;

(c) send a copy of the application to every local authority or water undertaker within whose area any of the proposed discharges is to occur;

(d) in the case of an application which relates to proposed discharges into coastal waters, relevant territorial waters or waters outside the seaward limits of relevant territorial waters, serve a copy of the application on each of the Ministers.

(5) The [F7 Agency] shall be entitled, on an application made in accordance with this paragraph, to disregard the provisions of paragraphs (a) to (c) of sub-paragraph (4) above if it proposes to give the consent applied for and considers that the discharges in question will have no appreciable effect on the waters into which it is proposed that they should be made.

(6) Where notice of an application under this paragraph is published by the [F7 Agency] under sub-paragraph (4) above, the [F7 Agency] shall be entitled to recover the expenses of publication from the applicant.

(7) If a person who proposes to make or has made an application under this paragraph (“the relevant application")—

(a) applies to the Secretary of State within the prescribed period for a certificate providing that the provisions of sub-paragraph (4) above and subsection (1) of section 190 of this Act shall not apply to—

(i) the relevant application;

(ii) any consent given or conditions imposed on the relevant application;

(iii) any sample of effluent taken from a discharge for which consent is given on the relevant application; or

(iv) information produced by analysis of such a sample;

and

(b) satisfies the Secretary of State that it would be contrary to the public interest or would prejudice, to an unreasonable degree, some private interest, by disclosing information about a trade secret, if a certificate were not issued under this sub-paragraph,

the Secretary of State may issue a certificate to that person providing that those provisions shall not apply to such of the things mentioned in paragraph (a) above as are specified in the certificate.

Textual Amendments

F7 Words in Sch. 10 para. 1 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Consideration and determination of applications E+W

2 (1) It shall be the duty of the [F8 Agency] to consider any written representations or objections with respect to an application under paragraph 1 above which are made to it in the period of six weeks beginning with the day of the publication of notice of the application in the London Gazette and are not withdrawn.

(2) On an application under paragraph 1 above the [F8 Agency] shall be under a duty, if the requirements of that paragraph are complied with, to consider whether to give the consent applied for, either unconditionally or subject to conditions, or to refuse it.

(3) Subject to sub-paragraph (4) and paragraph 3(5) below, on an application made in accordance with paragraph 1 above, the consent applied for shall be deemed to have been refused if it is not given within the period of four months beginning with the day on which the application is received or within such longer period as may be agreed in writing between the [F8 Agency] and the applicant.

(4) Where—

(a) any person, having made an application to the [F8 Agency] for a consent, has failed to comply with his obligation under paragraph 1(2) above to supplement that application with information required by the [F8 Agency]; and

(b) that requirement was made by the [F8 Agency] at such a time before the end of the period within which the [F8 Agency] is required to determine the application as gave that person a reasonable opportunity to provide the required information within that period,

the [F8 Agency] may delay its determination of the application until a reasonable time after the required information is provided.

(5) The conditions subject to which a consent may be given under this paragraph shall be such conditions as the [F8 Agency] may think fit and, in particular, may include conditions—

(a) as to the places at which the discharges to which the consent relates may be made and as to the design and construction of any outlets for the discharges;

(b) as to the nature, origin, composition, temperature, volume and rate of the discharges and as to the periods during which the discharges may be made;

(c) as to the steps to be taken, in relation to the discharges or by way of subjecting any substance likely to affect the description of matter discharged to treatment or any other process, for minimising the polluting effects of the discharges on any controlled waters;

(d) as to the provision of facilities for taking samples of the matter discharged and, in particular, as to the provision, maintenance and use of manholes, inspection chambers, observation wells and boreholes in connection with the discharges;

(e) as to the provision, maintenance and testing of meters for measuring or recording the volume and rate of the discharges and apparatus for determining the nature, composition and temperature of the discharges;

(f) as to the keeping of records of the nature, origin, composition, temperature, volume and rate of the discharges and, in particular, of records of readings of meters and other recording apparatus provided in accordance with any other condition attached to the consent; and

(g) as to the making of returns and the giving of other information to the [F8 Agency] about the nature, origin, composition, temperature, volume and rate of the discharges;

and it is hereby declared that a consent may be given under this paragraph subject to different conditions in respect of different periods.

(6) A consent for any discharges which is given under this paragraph is not limited to discharges by a particular person and, accordingly, extends to discharges which are made by any person.

Textual Amendments

F8 Words in Sch. 10 para. 2 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Notification of proposal to give consent E+W

3 (1) This paragraph applies where the [F9 Agency] proposes to give its consent under paragraph 2 above on an application in respect of which such representations or objections as the [F9 Agency] is required to consider under sub-paragraph (1) of that paragraph have been made.

(2) It shall be the duty of the [F9 Agency] to serve notice of the proposal on every person who made any such representations or objection; and any such notice shall include a statement of the effect of sub-paragraph (3) below.

(3) Any person who made any such representations or objection may, within the period of twenty-one days beginning with the day on which the notice of the proposal is served on him, in the prescribed manner request the Secretary of State to give a direction under paragraph 4(1) below in respect of the application.

(4) It shall be the duty of the [F9 Agency] not to give its consent on the application before the end of the period of twenty-one days mentioned in sub-paragraph (3) above and, if within that period—

(a) a request is made under sub-paragraph (3) above in respect of the application; and

(b) the person who makes that request serves notice of it on the [F9 Agency],

the [F9 Agency] shall not give its consent on the application unless the Secretary of State has served notice on the [F9 Agency] stating that he declines to comply with the request.

(5) Any period during which the [F9 Agency] is prohibited by virtue of sub-paragraph (4) above from giving its consent on the application shall be disregarded in determining whether the application is deemed to have been refused under paragraph 2(3) above.

Textual Amendments

F9 Words in Sch. 10 para. 3 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Modifications etc. (not altering text)

C2 Sch. 10 para. 3 extended (1.4.1996) by 1995 c. 25, s. 120(2), Sch. 23 Pt. I para. 21(2)(a); S.I. 1996/186, art. 3

Reference to Secretary of State of certain applications for consent E+W

4 (1) The Secretary of State may, either in consequence of representations or objections made to him or otherwise, direct the [F10 Agency] to transmit to him for determination such applications for consent under paragraph 1 above as are specified in the direction or are of a description so specified.

(2) Where a direction is given to the [F10 Agency] under this paragraph, the [F10 Agency] shall comply with the direction and inform every applicant to whose application the direction relates of the transmission of his application to the Secretary of State.

(3) Paragraphs 1(4) to (6) and 2(1) above shall have effect in relation to an application transmitted to the Secretary of State under this paragraph with such modifications as may be prescribed.

(4) Where an application is transmitted to the Secretary of State under this paragraph, the Secretary of State may at any time after the application is transmitted and before it is granted or refused—

(a) cause a local inquiry to be held with respect to the application; or

(b) afford the applicant and the [F10 Agency] an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

(5) The Secretary of State shall exercise his power under sub-paragraph (4) above in any case where a request to be heard with respect to the application is made to him in the prescribed manner by the applicant or by the [F10 Agency].

(6) Where under this paragraph the Secretary of State affords to an applicant and the [F10 Agency] an opportunity of appearing before, and being heard by, a person appointed for the purpose, it shall be the duty of the Secretary of State to afford an opportunity of appearing before, and being heard by, that person to every person who has made any representations or objection to the Secretary of State with respect to the application in question.

(7) It shall be the duty of the Secretary of State, if the requirements of this paragraph and of any regulations made under it are complied with, to determine an application for consent transmitted to him by the [F10 Agency] under this paragraph by directing the [F10 Agency] to refuse its consent or to give its consent under paragraph 2 above (either unconditionally or subject to such conditions as are specified in the direction).

(8) In complying with a direction under sub-paragraph (7) above to give a consent the [F10 Agency] shall not be required to comply with any requirement imposed by paragraph 3 above.

(9) Without prejudice to any of the preceding provisions of this paragraph, the Secretary of State may by regulations make provision for the purposes of, and in connection with, the consideration and disposal by him of applications transmitted to him under this paragraph.

Textual Amendments

F10 Words in Sch. 10 para. 4 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Consents without applications E+W

5 (1) If it appears to the [F11 Agency]—

(a) that a person has caused or permitted effluent or other matter to be discharged in contravention—

(i) of the obligation imposed by virtue of section 85(3) of this Act; or

(ii) of any prohibition imposed under section 86 of this Act;

and

(b) that a similar contravention by that person is likely,

the [F11 Agency] may, if it thinks fit, serve on him an instrument in writing giving its consent, subject to any conditions specified in the instrument, for discharges of a description so specified.

(2) A consent given under this paragraph shall not relate to any discharge which occurred before the instrument containing the consent was served on the recipient of the instrument.

(3) Sub-paragraphs (5) and (6) of paragraph 2 above shall have effect in relation to a consent given under this paragraph as they have effect in relation to a consent given under that paragraph.

(4) Where a consent has been given under this paragraph, the [F11 Agency] shall, as soon as practicable after giving it—

(a) publish notice of the consent, at least once in each of two successive weeks, in a newspaper or newspapers circulating in—

(i) the locality or localities in which the places are situated at which discharges may be made in pursuance of the consent; and

(ii) the locality or localities appearing to the [F11 Agency] to be in the vicinity of any controlled waters which it considers likely to be affected by the discharges;

(b) publish a copy of that notice in an edition of the London Gazette published no earlier than the day after the publication of the last of the notices to be published by virtue of paragraph (a) above;

(c) send a copy of the instrument containing the consent to every local authority within whose area any of the discharges authorised by the consent may occur;

(d) in the case of a consent which relates to discharges into coastal waters, relevant territorial waters or waters outside the seaward limits of relevant territorial waters, serve a copy of the instrument containing the consent on each of the Ministers.

(5) It shall be the duty of the [F11 Agency] to consider any written representations or objections with respect to a consent under this paragraph which are made to it in the period of six weeks beginning with the day of the publication of notice of the consent in the London Gazette and are not withdrawn.

(6) Where notice of a consent is published by the [F11 Agency] under sub-paragraph (4) above, the [F11 Agency] shall be entitled to recover the expenses of publication from the person on whom the instrument containing the consent was served.

Textual Amendments

F11 Words in Sch. 10 para. 5 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Revocation of consents and alteration and imposition of conditions E+W

6 (1) It shall be the duty of the [F12 Agency] to review from time to time the consents given under paragraphs 2 and 5 above and the conditions (if any) to which the consents are subject.

(2) Subject to such restrictions on the exercise of the power conferred by this sub-paragraph as are imposed under paragraph 7 below, where the [F12 Agency] has reviewed a consent under this paragraph, it may by a notice served on the person making a discharge in pursuance of the consent—

(a) revoke the consent;

(b) make modifications of the conditions of the consent; or

(c) in the case of an unconditional consent, provide that it shall be subject to such conditions as may be specified in the notice.

(3) If on a review under sub-paragraph (1) above it appears to the [F12 Agency] that no discharge has been made in pursuance of the consent to which the review relates at any time during the preceding twelve months, the [F12 Agency] may revoke the consent by a notice served on the owner or occupier of the land from which discharges would be made in pursuance of the consent.

(4) If it appears to the Secretary of State appropriate to do so—

(a) for the purpose of enabling Her Majesty’s Government in the United Kingdom to give effect to any Community obligation or to any international agreement to which the United Kingdom is for the time being a party;

(b) for the protection of public health or of flora and fauna dependent on an aquatic environment; or

(c) in consequence of any representations or objections made to him or otherwise,

he may, subject to such restrictions on the exercise of the power conferred by virtue of paragraph (c) above as are imposed under paragraph 7 below, at any time direct the [F12 Agency], in relation to a consent given under paragraph 2 or 5 above, to do anything mentioned in sub-paragraph (2)(a) to (c) above.

(5) The [F12 Agency] shall be liable to pay compensation to any person in respect of any loss or damage sustained by that person as a result of the [F12 Agency’s] compliance with a direction given in relation to any consent by virtue of sub-paragraph (4)(b) above if—

(a) in complying with that direction the [F12 Agency] does anything which, apart from that direction, it would be precluded from doing by a restriction imposed under paragraph 7 below; and

(b) the direction is not shown to have been given in consequence of—

(i) a change of circumstances which could not reasonably have been foreseen at the beginning of the period to which the restriction relates; or

(ii) consideration by the Secretary of State of material information which was not reasonably available to the [F12 Agency] at the beginning of that period.

(6) For the purposes of sub-paragraph (5) above information is material, in relation to a consent, if it relates to any discharge made or to be made by virtue of the consent, to the interaction of any such discharge with any other discharge or to the combined effect of the matter discharged and any other matter.

Textual Amendments

F12 Words in Sch. 10 para. 6 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Restriction on variation and revocation of consent and previous variation E+W

7 (1) Each instrument signifying the consent of the [F13 Agency] under paragraph 2 or 5 above shall specify a period during which no notice by virtue of paragraph 6(2) or (4)(c) above shall be served in respect of the consent.

(2) Each notice served by the [F13 Agency] by virtue of paragraph 6(2) or (4)(c) above (except a notice which only revokes a consent) shall specify a period during which a subsequent such notice which alters the effect of the first-mentioned notice shall not be served.

(3) The period specified under sub-paragraph (1) or (2) above in relation to any consent shall not, unless the person who proposes to make or makes discharges in pursuance of the consent otherwise agrees, be less than the period of two years beginning—

(a) in the case of a period specified under sub-paragraph (1) above, with the day on which the consent takes effect; and

(b) in the case of a period specified under sub-paragraph (2) above, with the day on which the notice specifying that period is served.

(4) A restriction imposed under sub-paragraph (1) or (2) above shall not prevent the service by the [F13 Agency] of a notice by virtue of paragraph 6(2) or (4)(c) above in respect of a consent given under paragraph 5 above if—

(a) the notice is served not more than three months after the beginning of the period specified in paragraph 5(5) above for the making of representations and objections with respect to the consent; and

(b) the [F13 Agency] or, as the case may be, the Secretary of State considers, in consequence of any representations or objections received by it or him within that period, that it is appropriate for the notice to be served.

Textual Amendments

F13 Words in Sch. 10 para. 7 substituted (subject to other provisions of the amending Act) (1.4.1996) by 1995 c. 25, s. 120, Sch. 22 para. 128 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3