Joint Committee on Statutory Instruments Nineteenth Report


APPENDIX VIII

Memorandum by the Department of the Environment, Transport

and the Regions

ANTI-POLLUTION WORKS REGULATIONS 1999 (S.I. 1999/1006)

  1. The Committee has requested the Department to submit a Memorandum on the following points:-

(1)  Regulation 2(c) requires a works notice to specify the works or operations required to be carried out by the person on whom it is served. Given that section 161A(3)(a) of the 1991 Act requires a works notice to specify the periods within which the person on whom it is served is required to do each of the things specified in the notice, explain why regulation 2 does not include a provision to this effect.

  2. The requirements of the 1991 Act must be complied with as well as the requirements of the regulations. It was not considered necessary to repeat the requirements of section 161A(3)(a) in the regulations in order to give force to the statutory requirements. The Agency must specify in a works notice­

      "the works or operations required to be carried out by the person on whom it is served, stating his name and address" (regulation 2(c)); and

      "the periods within which the person on whom it is served is required to do each of the things specified in the notice" (section 161A(3)(a)).

(2)  Regulation 3(2) requires the notice of appeal to state the grounds on which the appeal is made. What are the grounds on which an appeal may be made, and where are they specified?

  3. Section 161C(1) provides that a person on whom a works notice is served may appeal against the notice to the Secretary of State. Nothing in the 1991 Act restricts the grounds on which an appeal may be made, though the Secretary of State may by regulation do so (section 161C(3)(a)). The only requirement in S.I.1999/1148 about the grounds of an appeal is that they must be stated in the notice of appeal. The person served with a works notice may therefore appeal on any grounds but must say what they are in the notice of appeal. On hearing an appeal the Secretary of State is under duty to quash a works notice if he is satisfied that there is a material defect in the notice (see section 161C(2)(a)). Subject to that duty, he has power to confirm the notice with or without modifications or quash it (see section 161C(2)(b)). So an appeal may be made on grounds that there is a material defect in the notice or on the merits. An appeal could, for example, be made on the grounds that­

      (a)  the Agency had not complied with regulation 2 or section 161A(3)(a);

      (b)  insufficient time had been allowed to do the works specified in the notice;

      (c)  the works specified in the notice would not remedy the problem or are not the most cost effective way of remedying the problem;

      (d)  the person on whom the notice was served did not cause or knowingly permit the matter to be present at the place which poses the risk of pollution or did not cause or knowingly permit the matter in question to be present in the controlled waters;

      (e)  there is no pollution risk or pollution did not occur;

      (f)  it would be unfair for the appellant to be made responsible for the remedial work in all the circumstances of the case.

(3)  Section 161C(4)(d) of the 1991 Act authorises regulations to prescribe the case in which the appellant may claim that a works notice should have been served on some other person. Given that regulation 3(4)(b) assumes that a ground of appeal is that the notice might lawfully have been served on some other person, explain why the power conferred by that subsection has not been exercised.

  4. As explained above the grounds of appeal are not limited in any way. It is therefore possible for an appellant to argue that he should not have been served with a works notice because someone else caused or permitted the pollution problem in question or that it was unfair for him alone to have been served with a notice, given that someone else was involved as well. The power in section 161C(4)(d) to prescribe cases was not used because it was not intended to limit the circumstances

in which such arguments could be advanced. The Department does not consider that the express power in section 161C(4)(d) to provide for a procedure where the power to prescribe cases is exercised, limits the power conferred by section 161C(3)(b) to provide for the procedure where no limit is placed on the cases in which an appellant may claim that a works notice should have been served on some other person.

11th May 1999


 
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