The REACH Enforcement Regulations 2008

Regulation 21(2)

SCHEDULE 8 Appeals

PART 1 Notices served by the Environment Agency, the Scottish Environment Protection Agency or the Department of the Environment

1.  The appeal body means, where the notice is served by—

(a) the Environment Agency—

(i) the Secretary of State, where the notice is served in relation to England;

(ii) the Welsh Ministers, where the notice is served in relation to Wales.

(b) the Scottish Environment Protection Agency, the Scottish Ministers;

(c) the Department of the Environment, the Planning Appeals Commission.

2.  An appeal must be received by the appeal body no later than two months from the date of the notice.

3.  The appeal body may consider an appeal received after the date referred to in paragraph 2.

4.  Where an appeal is brought, this does not have the effect of suspending the operation of the notice.

5.  On the determination of an appeal, the appeal body may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the appeal body sees fit.

6.  In relation to the making and determination of appeals under this section, the appeal body may adopt such procedures as it sees fit.

PART 2 Notices served by the Health and Safety Executive, the Health and Safety Executive for Northern Ireland or local (health and safety) authorities

1.  An appeal may be made to a tribunal.

2.  Schedule 4 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004(1) applies to a notice served in Great Britain by—

(a) the Health and Safety Executive;

(b) a local (health and safety) authority.

3.  Under paragraph 2, an enforcement notice is to be treated in the same way as an improvement notice for the purposes of Schedule 4 referred to.

4.  Schedule 5 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005(2) applies to a notice served in Northern Ireland by—

(a) the Health and Safety Executive for Northern Ireland;

(b) a local (health and safety) authority.

5.  Under paragraph 4, an enforcement notice is to be treated in the same way as an improvement notice for the purposes of Schedule 5 referred to.

6.  The tribunal may cancel or affirm the notice and, if it affirms it, may do so in its original form or with such modifications as the tribunal may in the circumstances see fit.

7.  In the case of an improvement notice, the bringing of the appeal has the effect of suspending the operation of the notice until the appeal is finally disposed of or, if the appeal is withdrawn, until the withdrawal of the appeal.

8.  In the case of a prohibition notice or an enforcement notice, the bringing of the appeal has the same effect as described in paragraph 7 if, on the application of the appellant, the tribunal so directs and only from the giving of that direction.

9.  One or more assessors may be appointed in respect of proceedings brought before a tribunal under this Part.

10.  In this Part—

(a) “assessor” has the same meaning as it has—

(i) in Great Britain, under section 24 of the Health and Safety at Work etc. Act 1974(3);

(ii) in Northern Ireland, under article 26 of the Health and Safety at Work (Northern Ireland) Order 1978(4);

(b) “tribunal” means—

(i) in Great Britain, an employment tribunal;

(ii) in Northern Ireland, an industrial tribunal.

PART 3 Notices served by local (consumer safety) authorities

1.  An appeal may be brought by a person having an interest in any goods in respect of which a suspension notice is in force.

2.  In England and Wales or Northern Ireland, an appeal may be made to a magistrates’ court and where proceedings have not been brought—

(a) for an offence under regulation 11 or 13; or

(b) for forfeiture of the goods under section 3 of Part 3 of Schedule 6;

the appeal may be brought by way of complaint to the court.

3.  In Scotland, an appeal may be made to the sheriff by way of summary application.

4.  A magistrates’ court must not make an order setting aside a suspension notice unless it is satisfied that there has been no contravention in relation to the goods of a listed REACH provision.

5.  A sheriff must not make an order setting aside a suspension notice unless the sheriff is satisfied at the date of the order that proceedings—

(a) for an offence under regulation 11 or 13; or

(b) for forfeiture of the goods under section 3 of Part 3 of Schedule 6,

have not been brought or, having been brought, have been concluded.

6.  A person aggrieved by an order made by a magistrates’ court under this Part or a decision not to make such an order, may appeal that order or decision—

(a) in England and Wales, to the Crown Court;

(b) in Northern Ireland, to the county court.

7.  An order made by a magistrates’ court under this Part may contain such provision as appears to the court to be appropriate for delaying the coming into force of the order pending the making and determination of any appeal under paragraph 6.

PART 4 Notices served by the Secretary of State

1.  An appeal may be made to the court.

2.  An appeal must be brought within 28 days of the date of the notice.

3.  Unless the court otherwise directs, an appeal does not have the effect of suspending the operation of the notice.

4.  In this section, “ the court” means, in respect of a notice that relates to—

(a) the English area, the High Court;

(b) the Scottish area, (excluding Scottish controlled waters), the Court of Session;

(c) the Northern Irish area, the High Court in Northern Ireland.

5.  Where a notice relates to more than one area referred to in paragraph 4, an appeal may be made to any of the courts with jurisdiction for the area or areas in question.

6.  Reference in paragraph 4 to—

“the English area”;

“the Scottish area”;

“the Northern Irish area”,

has the same meaning as it has in the Civil Jurisdiction (Offshore Activities) Order 1987(5).

(1)

S.I. 2004/1861.

(2)

S.R. 2005 No. 150.

(3)

1974 c.37.

(4)

1978 No.1039 (NI. 9).

(5)

S.I. 1987/2197.