Statutory Instruments
WATER RESOURCES, ENGLAND AND WALES
Made
19th March 1999
Laid before Parliament
24th March 1999
Coming into force
21st June 1999
Whereas the Secretary of State for the Environment, Transport and the Regions as respects England and the Secretary of State for Wales as respects Wales, having consulted the Minister of Agriculture, Fisheries and Food, are satisfied that in relation to the area referred to in article 3 of the following Order it is appropriate, with a view to preventing or controlling the entry of any poisonous, noxious or polluting matter into controlled waters, to prohibit or restrict the carrying on in that area of activities which they consider are likely to result in the pollution of any such waters;
And whereas the Secretary of State for the Environment, Transport and the Regions and the Secretary of State for Wales therefore consider it appropriate to designate the said area as a water protection zone and to prohibit or restrict the carrying on in the designated area of such activities as may be specified or described in this Order pursuant to the provisions of section 93 of the Water Resources Act 1991(1);
Now, therefore, the Secretary of State for the Environment, Transport and the Regions as respects England and the Secretary of State for Wales as respects Wales, on the application of the Environment Agency(2), acting in exercise of the powers conferred on them by section 93 of and in accordance with Schedule 11 to the Water Resources Act 1991, and of all other powers enabling them in that behalf, hereby make the following Order:
1. This Order may be cited as The Water Protection Zone (River Dee Catchment) Designation Order 1999 and shall come into force on 21st June 1999.
2.—(1) In this Order,
“the Act” means the Water Resources Act 1991;
“the 1994 Regulations” means the Chemicals (Hazard Information and Packaging For Supply) Regulations 1994(3);
“the 1999 Regulations” means the Water Protection Zone (River Dee Catchment) (Procedural and Other Provisions) Regulations 1999(4);
“the Agency” means the Environment Agency;
“agricultural unit” has the same meaning as in the Agriculture Act 1947(5);
“catchment control site” means a site used for or in connection with—
an industrial process;
the research and development of products or processes;
storage or as a distribution centre; or
the storage or treatment of water, surface water, trade effluent or domestic sewage;
within which there is kept or used, or proposed to be kept or used, a controlled substance but excluding a construction area, retail premises, a site within an agricultural unit and a site used for carrying on a prescribed process within the meaning of Part I of the Environmental Protection Act 1990(6) being a process designated for central control under that Part;
“construction area” means an area of land on, over or under which a building or other civil engineering operation is in the course of being constructed or carried out but does not include any other land in the vicinity thereof except that which is being used to facilitate the operation;
“contravention of protection zone control” has the meaning given in article 4(2);
“controlled activity” means the keeping or use of a controlled substance within a catchment control site;
“controlled substance” means any substance which is—
a dangerous substance;
a fuel, lubricant or industrial spirit or solvent, which is a liquid under normal conditions or which is kept as a liquid within a site;
a medicinal product within the meaning of the Medicines Act 1968(7);
food which is a liquid under normal conditions;
feeding stuff which is liquid under normal conditions;
an inorganic fertiliser;
a cosmetic product within the meaning of the Cosmetic Products (Safety) Regulations 1996(8); or
a substance identified by its manufacturer as being toxic, harmful, corrosive or irritant;
of which there is kept or used, or proposed to be kept or used, the relevant quantity:
but does not include—
controlled waste within the meaning of Part II of the Environmental Protection Act 1990(9) insofar as such waste is being treated, kept or disposed of in accordance with a waste management licence in force under the provisions of Part II of that Act;
radioactive waste, as defined in section 2 of the Radioactive Substances Act 1993(10);
any fuel used exclusively for the production of heat or power;
any substance contained in a pipe-line except in relation to a catchment control site where the pipeline has an inlet or outlet at the site;
any substance present at a site for a period of 24 hours or less whilst it is being conveyed from one place to another; or
any substance which is a gas or vapour under normal conditions;
“dangerous substance” means a substance dangerous for supply within the meaning of the 1994 Regulations and to which those Regulations apply, other than any such substance which is, in accordance with those Regulations, classified only as being a substance which is explosive, flammable, highly flammable or extremely flammable; and includes any substance listed among the families and groups of substances in List I or List II to the annex to the Council Directive 76/464/EEC(11) on Pollution caused by certain Dangerous Substances discharged into the Aquatic Environment of the Community;
“establishment period” means the period of 12 months ending on the date on which this Order comes into force;
“feeding stuff” means feeding stuff within the meaning of the Agriculture Act 1970(12) and any substance used as an ingredient in its manufacture;
“food” has the same meaning as in the Food Safety Act 1990(13);
“industrial process” means a process for or incidental to any of the following purposes—
the making of any article or substance or part of any article or substance (including food);
the altering, repairing, maintaining, ornamenting, finishing, cleaning, washing, packing, canning, adapting for sale, breaking up or demolition of any article or substance; or
the getting, dressing or treatment of minerals;
“inorganic fertiliser” means a fertiliser used for the cultivation of crops or plants of any description, including trees, which is in the form of inorganic salts obtained by extraction, physical industrial processes, chemical industrial processes, or a combination of any or all of these, and includes calcium cyanamide, and urea and its condensation products;
“minerals” has the same meaning as in the Town and Country Planning Act 1990(14);
“the protection zone” means the water protection zone designated by article 3 of this Order;
“protection zone consent” means consent to the carrying on of a controlled activity granted on application under the 1999 Regulations or duly claimed under article 6 of this Order;
“the relevant quantity” means—
in relation to food or feeding stuff which is not a dangerous substance, an amount comprising or in excess of 500 litres; and
in every other case, an amount equal to or in excess of—
50 litres when present in a single vessel; but otherwise
200 litres;
“retail premises” means any premises used wholly or mainly for the sale of goods to the public;
“site” means an area of land or a structure (whether floating or not) under the control of a person;
“substance” means any natural or artificial substance whether in solid or liquid form or in the form of a gas or vapour and includes any substance which is a mixture of two or more substances;
“vessel” means any container in which a controlled substance may be kept or used whether or not the container is designed or adapted for the purpose or is affixed to the land, and includes a container which forms part of plant or machinery.
(2) In determining whether the relevant quantity of a controlled substance is kept or used or proposed to be kept or used within a site, no account shall be taken of any quantity of such a substance which is or is to be kept or used within the site in any vehicle, water-borne craft, aircraft or hovercraft for the purposes of the use of that vehicle or craft as a means of transport.
(3) Any reference in this Order to the person in control of a site is a reference to the person having control of the site in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).
(4) Any reference in this article to a liquid, gas or vapour under normal conditions is a reference to that liquid, gas or vapour in an unpressurised state at 15 degrees centigrade.
(5) Where in this Order reference is made to a quantity of a substance expressed in litres, that reference shall mean—
(a)in the case of a liquid, the volume in litres of that liquid; and
(b)in the case of a solid, the same number of kilograms of that solid;
and for the purposes of aggregation, one litre of a liquid shall be deemed to be equivalent to one kilogram of a solid.
3. There is hereby designated as a water protection zone, to be known as “the River Dee Water Protection Zone”, the area edged in red on the map prepared in triplicate and marked “The map referred to in the Water Protection Zone (River Dee Catchment) Designation Order 1999” signed by the Parliamentary Under Secretary of State in the Department of the Environment, Transport and the Regions and the Parliamentary Under Secretary of State for Wales, of which one copy is deposited and available for inspection at the office of the Environment Agency at Chester Road, Buckley, Clwyd CH7 3AJ and one copy each at the offices of the Department of the Environment, Transport and the Regions, Ashdown House, 123 Victoria Street, London SW1E 6DE and the Welsh Office, Cathays Park, Cardiff CF1 3NQ respectively.
4.—(1) No person shall carry on a controlled activity within the protection zone in contravention of protection zone control.
(2) Subject to articles 5, 6 and 7 there is a contravention of protection zone control—
(a)if a controlled activity is or has been carried on within the protection zone and either—
(i)there is no protection zone consent for the carrying on of that activity; or
(ii)there is protection zone consent for the carrying on of that activity but the quantity of controlled substances kept or used 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 protection zone consent was granted.
5.—(1) If at any time on or after the expiry of six months after the date on which this Order comes into force, there is a contravention of protection zone control, any person causing or knowingly permitting it shall be guilty of an offence.
(2) A person guilty of an offence under this article shall be liable—
(a)on summary conviction, to imprisonment for a term not exceeding 3 months or to a fine not exceeding £20,000 or to both;
(b)on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.
(3) In any proceedings for an offence under this article 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.
(4) In any proceedings for an offence consisting of a contravention falling within sub-paragraph (2)(a) of article 4, 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 sub-paragraph (2)(a)(i), that the controlled activity was being carried on;
(b)if the case falls within sub-paragraph (2)(a)(ii), that the controlled substance was kept or used in a quantity exceeding the maximum quantity permitted by the consent.
(5) In any proceedings for an offence consisting of a contravention falling within sub-paragraph (2)(b) of article 4, 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 protection zone consent had been granted.
6.—(1) Where a controlled activity was carried on at any catchment control site at any time within the establishment period, protection zone consent may be claimed under this article by the person in control of the site.
(2) A claim under this article shall be made before the end of the transitional period on a form provided for the purpose by the Agency which shall incorporate or be accompanied by the information and other documentation specified in the Schedule to this Order.
(3) Subject to paragraphs (4), (5) and (6) the Agency shall be deemed to have granted such protection zone consent as is claimed.
(4) If it appears to the Agency that the claim fails to meet the requirements of paragraph (2) the Agency shall serve on the applicant within 4 weeks of its receipt of the claim a notice—
(a)informing the applicant that in its opinion the claim failed to meet the requirements;
(b)giving its reasons for that opinion; and
(c)except where a claim was made after the end of the transitional period, inviting the applicant to make good any deficiencies in the claim within a specified period, being not less than 7 days beginning with the date of service of the notice.
(5) If it appears to the Agency that the applicant has failed to comply with the provisions of the notice referred to in paragraph (4) it shall inform the applicant in writing before the end of the period of 2 weeks beginning with the end of the period specified in paragraph (4)(c) that the claim is invalid.
(6) Protection zone consent which is claimed under this article is subject to conditions that:
(a)the maximum aggregate quantity of the controlled substances that may be kept or used within the catchment control site to which the claim for consent relates at any one time shall not exceed the maximum quantity of those substances which were specified in the information supplied in accordance with paragraph (2) and were kept or used at any one time within the establishment period; and
(b)each controlled substance will be kept and used in the place and manner in which information supplied in accordance with paragraph (2) shows that it was kept and used within the establishment period; and
(c)none of the controlled substances shall be kept or used in a vessel greater in capacity than the vessel or the largest of the vessels, in which information supplied in accordance with paragraph (2) shows that the substance was kept or used within the establishment period.
(8) In this article “the transitional period” means the period of 6 months beginning on the date in which this Order comes into force.
7.—(1) Where an application or claim for protection zone consent for a controlled activity is made on or before the expiry of six months after the date on which this Order comes into force, in accordance with regulation 5 of the 1999 Regulations or article 6 of this Order, as the case may be, no offence is committed under article 5 of this Order in relation to that activity until the application or claim is disposed of.
(2) For the purposes of paragraph (1) an application under the 1999 Regulations is disposed of on the date on which the protection zone consent applied for is granted or if the application is refused the date on which—
(a)the period for appealing expires without an appeal being made; or
(b)any appeal is withdrawn or finally determined.
(3) For the purposes of paragraph (1) a claim under article 6 of this Order is disposed of either at the expiry of the period of 6 weeks beginning with the date of the claim or, if the Agency informs the claimant that the claim is invalid under article 6(5), the date of that notification whichever is the earlier.
Signed by the authority of the Secretary of State for the Environment, Transport and the Regions.
A G Meale
Parliamentary Under Secretary of State,
Department of the Environment, Transport and the Regions
17th March 1999
Signed by authority of the Secretary of State for Wales
Jon Owen Jones
Parliamentary Under Secretary of State, Welsh Office
19th March 1999
Article 6
1. The following is required—
(a)a site and vessel map;
(b)a general description of the activities carried on at the site during the establishment period and the date when those activities were begun together with documentary evidence thereof;
(c)details of each controlled substance kept or used during the establishment period and the quantity kept or used;
(d)details of the manner of keeping and use of each such controlled substance during the establishment period;
(e)a declaration signed by or on behalf of the applicant declaring that he is in control of the land to which the claim relates.
2. The site and vessel map required by paragraph 1(a) shall be a map reproduced from, or based upon, an Ordnance Survey map with a scale of not less than 1 to 10,000, which identifies the site to which the claim relates and any area of the site where a controlled substance has been kept or used in a vessel at any time during the establishment period and which shows National Grid lines and reference numbers.
(This note is not part of the Order)
Section 93 of the Water Resources Act 1991 (“the 1991 Act”) gives the Secretary of State power to designate any area as a water protection zone if, in relation to that area, it is appropriate, with a view to preventing or controlling the entry of any poisonous, noxious or polluting matter into controlled waters, to prohibit or restrict the carrying on in that area of activities which the Secretary of State consider are likely to result in the pollution of any such waters.
This Order designates as a water protection zone an area forming part of the freshwater River Dee catchment and was made jointly by the Secretary of State for the Environment, Transport and the Regions and the Secretary of State for Wales. The area is defined by reference to a map which is available for inspection during normal office hours at the offices of the Department of the Environment, Transport and the Regions, Ashdown House, 123 Victoria Street, London SW1E 6DE; at the offices of the Welsh Office, Cathays Park, Cardiff CF1 3NQ and at the offices of the Environment Agency (“the Agency”) at Chester Road, Buckley, Clwyd CH7 3AJ.
Article 4 requires that the consent of the Agency (“protection zone consent”) must be obtained for the carrying on of a controlled activity within the water protection zone. A controlled activity is the keeping or use of a controlled substance within a catchment control site.
Article 5 provides that it is a criminal offence to contravene protection zone control after a specified date. The maximum penalties for an offence are, on summary conviction, imprisonment for a term not exceeding three months or a fine not exceeding £20,000 or both, and on conviction on indictment imprisonment for a term not exceeding two years or a fine or both.
Article 6 contains transitional provisions for where there is an entitlement to make a claim for protection zone consent in relation to a controlled activity being carried on in the 12 months before this Order comes into force.
Article 7 contains a transitional exemption under which an exemption from proceedings for contravention of protection zone control is granted in respect of certain applications for protection zone consent pending their determination.
The Secretaries of State have made regulations under section 96 of the 1991 Act entitled the Water Protection Zone (River Dee Catchment) (Procedural and Other Provisions) Regulations 1999. Those Regulations contain the application and appeal procedures for making an application for protection zone consent and also make other provisions in relation to it.
A compliance cost assessment of the effect that this Order would have on the cost of business may be obtained from: Water Quality Division, Department of the Environment, Transport and the Regions, Ashdown House, 123 Victoria Street, London SW1E 6DE or Environment Division, Welsh Office, Cathays Park, Cardiff CF1 3NQ.
1991 c. 57; as amended by section 120 of the Environment Act 1995 (c. 25); for the definition of “the Minister” in section 93(1) see section 221(1).
By virtue of section 2 of the Environment Act 1995 the functions of the National Rivers Authority under the Water Resources Act 1991 were transferred to the Environment Agency and by virtue of section 55 anything done by or in relation to the functions which were transferred is treated as being done by the Environment Agency.
1994/3247 amended by S.I. 1996/1092.
1990 c. 43, as amended by the Environment Act 1995 c. 25; and see section 1(5) of the Environmental Protection Act for the definition of “prescribed process”.
See section 75(4) of the Environmental Protection Act 1990 for the definition of controlled waste.
OJ No. L129, 18.5.76, p.23.