Environment Act 1995

Changes over time for: Section 42

Version Superseded: 01/09/2018

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42 Approval of charging schemes.E+W+S

(1)Before submitting a proposed charging scheme to the Secretary of State [F1or the Welsh Ministers for approval, a charging authority] shall, in such manner as it considers appropriate for bringing it to the attention of persons likely to be affected by the scheme, publish a notice—

(a)setting out its proposals; and

(b)specifying the period within which representations or objections with respect to the proposals may be made to the Secretary of State [F2or, as the case may be, the Welsh Ministers].

(2)Where any proposed charging scheme has been submitted to the Secretary of State [F3or the Welsh Ministers for] approval, he [F4or they] shall, in determining whether or not to approve the scheme or to approve it subject to modifications,—

(a)consider any representations or objections duly made to him [F5or them] and not withdrawn; and

[F6(b)have regard to—

(i)in the case of a charging scheme made under section 41, the matter specified in subsection (3);

(ii)in the case of a charging scheme made under section 41A, the matter specified in subsection (3A).]

(3)The matter mentioned in subsection [F7(2)(b)(i)] above is the desirability of ensuring that, in the case of each of the descriptions of environmental licence specified in the paragraphs of the definition of that expression in section 56 below, the amounts recovered by the [F8charging authority] in question by way of charges prescribed by charging schemes are the amounts which, taking one year with another, need to be recovered by that [F8charging authority] to meet such of the costs and expenses (whether of a revenue or capital nature)—

(a)which it incurs in carrying out its functions,

(b)[F9in the case of environmental licences which are authorisations under section 13(1) of the M1Radioactive Substances Act 1993—

(i)which the [F10Food Standards Agency] incurs in carrying out [F10its] functions under or in consequence of that Act, and

F11(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F9which the Food Standards Agency incurs in carrying out its functions in relation to environmental permits under [F12the Environmental Permitting (England and Wales) Regulations 2016 (S.I. 2016/1154)] concerning the disposal of radioactive waste within the meaning of those Regulations. ]

[F13(c)in the case of licences granted by the Agency under Chapter II of Part II of the 1991 Act (abstraction and impounding), which the Natural Resources Body for Wales incurs in carrying out its functions under Part II of that Act or section 6(2A) above in the catchment areas of the rivers Dee, Wye and Severn for purposes connected with abstractions from, or impounding of, waters in England,

(d)in the case of licences granted by the Natural Resources Body for Wales under Chapter II of Part II of the 1991 Act (abstraction and impounding), which the Agency incurs in carrying out its functions under Part II of that Act or section 6(2) above in the catchment areas of the rivers Dee, Wye and Severn for purposes connected with abstractions from, or impounding of, waters in Wales,]

as the Secretary of State [F14or, as the case may be, the Welsh Ministers] may consider it appropriate to attribute to the carrying out of those functions in relation to activities to which environmental licences of the description in question relate.

[F15(3A)The matter mentioned in subsection (2)(b)(ii) above is the desirability of ensuring that the amounts recovered by the [F16charging authority] in question by way of charges prescribed by charging schemes are the amounts which, taking one year with another, need to be recovered by that [F16charging authority] to meet such of the costs and expenses (whether of a revenue or capital nature) which it incurs in carrying out its functions in relation to the matters described in section 41A(1) as the Secretary of State [F17or, as the case may be, the Welsh Ministers] may consider it appropriate to attribute to the carrying out of those functions.]

(4)Without prejudice to the generality of the expression “costs and expenses”, in determining for the purposes of subsection (3) [F18or (3A)] above the amounts of the costs and expenses which the Secretary of State considers [F19or which the Welsh Ministers consider] it appropriate to attribute to the carrying out of a [F20charging authority's] or the [F21Food Standard Agency’s] functions F22..., the Secretary of State [F23or the Welsh Ministers]—

(a)shall take into account any determination of the [F24charging authority's] financial duties under section 44 below [F25or (in the case of the Natural Resources Body for Wales) under article 13 of the Natural Resources Body for Wales (Establishment) Order 2012 (S.I.2012/1903)]; and

(b)may include amounts in respect of the depreciation of, and the provision of a return on, such assets as are held by the [F26charging authority], [F27or the Food Standards Agency], for purposes connected with the carrying out of the functions in question.

(5)If and to the extent that a charging scheme relates to any licence under Chapter II of Part II of the 1991 Act (abstraction and impounding), the Secretary of State [F28or the Welsh Ministers (as the case may be)] may consider it appropriate to attribute to the carrying out of [F29an appropriate agency's] functions in relation to activities to which such a licence relates any costs and expenses incurred by the [F30appropriate agency] in carrying out any of its functions under Part II of that Act or under section 6(2) [F31or (2A)] above.

(6)Subsection (5) above is without prejudice to what costs and expenses the Secretary of State [F32or the Welsh Ministers] may consider it appropriate to attribute to the carrying out of any functions of a [F33charging authority], the Minister or the Secretary of State in relation to activities to which environmental licences of any particular description relate.

(7)The consent of the Treasury shall be required for the giving of approval to a charging scheme [F34submitted by the Agency] [F35or by both of the appropriate agencies acting jointly] . . ..

(8)It shall be the duty of a [F36charging authority] to take such steps as it considers appropriate for bringing the provisions of any charging scheme made by it which is for the time being in force to the attention of persons likely to be affected by them.

(9)If and to the extent that any sums recovered by a [F37charging authority] by way of charges prescribed by charging schemes may fairly be regarded as so recovered for the purpose of recovering the amount required to meet (whether in whole or in part)—[F38such of the costs and expenses incurred by the Food Standards Agency as fall within subsection (3) above] those sums shall be paid by that [F37charging authority] [F39to the Food Standards Agency].

[F40(9A)The Agency must pay to the Natural Resources Body for Wales any sums which the Agency recovers under a charging scheme made under section 41 (other than a joint charging scheme made in accordance with section 41B) that may fairly be regarded as recovered for the purpose of meeting (in whole or in part) any costs and expenses incurred, or deemed to have been incurred, by the Body in carrying out its functions under Part II of the 1991 Act or section 6(2A) above.

(9B)The Natural Resources Body for Wales must pay to the Agency any sums which the Body recovers under a charging scheme made under section 41 (other than a joint charging scheme made in accordance with section 41B) that may fairly be regarded as recovered for the purpose of meeting (in whole or in part) any costs and expenses incurred by the Agency in carrying out its functions under Part II of the 1991 Act or section 6(2) above, other than costs and expenses that are deemed to have been incurred by the Body.

(9C)Any sums recovered by an appropriate agency by way of charges prescribed by a joint charging scheme made in accordance with section 41B must be apportioned between, and paid to, each appropriate agency in the manner specified by the scheme pursuant to section 41B(2)(b).

(9D)For the purposes of subsections (9A) and (9B), costs or expenses are deemed to have been incurred by the Natural Resources Body for Wales if the liability for those costs or expenses was transferred from the Agency to the Body on 1st April 2013—

(a)by a transfer scheme made by the Welsh Ministers under section 23 of the Public Bodies Act 2011; or

(b)by virtue of article 10 of, and paragraph 2 of Schedule 7 to, the Natural Resources Body for Wales (Functions) Order 2013.]

(10)For the purposes of subsection (9) above, any question as to the extent to which any sums may fairly be regarded as recovered for the purpose of recovering the amount required to meet the costs and expenses falling within [F41that subsection shall be determined by the Secretary of State].

[F42(10A)Any dispute as to the apportionment or payment of sums under subsection (9A), (9B) or (9C) shall be determined by the Secretary of State and the Welsh Ministers acting jointly.]

[F43(11)In this section “charging scheme” means a scheme made under section 41 or 41A [F44and “charging authority” means the body that makes or proposes to make a charging scheme].]

[F45(12)In the application of this section to Scotland, the references to the Food Standards Agency are to be read as references to Food Standards Scotland.]

Textual Amendments

F1Words in s. 42(1) substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 373(2)(a) (with Sch. 7)

F2Words in s. 42(1)(b) inserted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 373(2)(b) (with Sch. 7)

F3Words in s. 42(2) substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 373(3)(a)(i) (with Sch. 7)

F4Words in s. 42(2) inserted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 373(3)(a)(ii) (with Sch. 7)

F5Words in s. 42(2)(a) inserted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 373(3)(b) (with Sch. 7)

F6S. 42(2)(b) substituted (3.12.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Charging Schemes) Regulations 2012 (S.I. 2012/2788), regs. 1, 6(2)

F7Word in s. 42(3) substituted (3.12.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Charging Schemes) Regulations 2012 (S.I. 2012/2788), regs. 1, 6(3)

F8Words in s. 42(3) substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 2 para. 373(4)(a) (with Sch. 7)

F9S. 42(3)(b) substituted (E.W.) (6.4.2010) by The Environmental Permitting (England and Wales) Regulations 2010 (S.I. 2010/675), reg. 1(1)(b), Sch. 26 para. 13(3) (with reg. 1(2), Sch. 4)

F10Words in s. 42(3)(b)(i) substituted (1.4.2000) by 1999 c. 28, s. 40(1)(2), Sch. 5 para. 44(1)(2)(a) (with ss. 38, 40(2)); S.I. 2000/1066, art. 2

F11S. 42(3)(b)(ii) repealed (1.4.2000) by 1999 c. 28, s. 40(1)(2)(4), Sch. 5 para. 44(1)(2)(b), Sch. 6 (with ss. 38, 40(2)); S.I. 2000/1066, art. 2