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Environmental Protection Act 1990

Although parts of it have been repealed, the Environmental Protection Act 1990 remains one of the most important environmental statutes in force in the UK. Much of the Act is of a framework nature, with the detail being provided in secondary legislation.

1. The Act provides the framework for a number of different areas of environmental regulation - principally waste management, contaminated land, statutory nuisances and genetically modified organisms (GMOs).

2. Part I established the framework for the Integrated Pollution Control (IPC) and Local Authority Air Pollution Control (LAAPC) regimes. The IPC regime was the first pollution control regime in the UK to control emissions to air, water and land in an integrated manner. Part I is repealed by the Pollution Prevention and Control Act 1999 (although the repealing provisions have not yet been brought into force) and the IPC regime was superseded by the European Union's Integrated Pollution Prevention and Control (IPPC) regime established by Directive 96/61 (and now governed by Directive 2010/75). The replacement IPPC regime was originally implemented by the Pollution Prevention and Control (England and Wales) Regulations 2000/1973, but integrated environmental permitting is now governed by the Environmental Permitting (England and Wales) Regulations 2010/675.

3. Part II covers waste on land and provides the statutory framework for the collection and disposal of waste.

4. Part IIA deals with the identification and remediation of contaminated land and was inserted into the Act by s.57 of the Environment Act 1995.

5. Part III deals with the identification and abatement of statutory nuisances.

6. Part IV (as amended by the Clean Neighbourhoods and Environment Act 2005) covers litter and local authorities' powers to deal with it.

7. Part V previously dealt with the regulation of radioactive substances. It was repealed by the Radioactive Substances Act 1993 (which has itself been largely repealed in England and Wales by the Environmental Permitting (England and Wales) Regulations 2010/ 675).

8. Part VI deals with the release of genetically-modified organisms (GMOs).

9. Part VII previously dealt with nature conservation in Great Britain and countryside matters in Wales. In relation to England, it has been repealed by the Natural Environment and Rural Communities Act 2006. In relation to Wales, the functions of the Countryside Council for Wales were transferred to Natural Resources Wales with effect from 1 April 2013.

10. Part VIII contains miscellaneous provisions covering matters such as the control of dogs, stubble burning and environmental expenditure.

11. Part II - Waste On Land:Part II creates the framework for the collection and disposal of waste in Great Britain. It is one of the principal mechanisms for implementing Directive 2008/98 on waste (commonly known as the "Waste Framework Directive").

12. Section 30 defines "waste regulation authorities", "waste collection authorities", "waste disposal authorities" and "waste disposal contractors". Waste regulation authorities are the Environment Agency in England, Natural Resources Wales in Wales and the Scottish Environment Protection Agency in Scotland. As a general rule, in areas of England with a two-tier system of local government, district councils are waste collection authorities and county councils are waste disposal authorities. In other areas (e.g. London Boroughs and areas with a unitary system of local government) the local authority is both the waste collection authority and the waste disposal authority, although in some larger metropolitan areas (London, Manchester and Merseyside) there are separate waste disposal authorities covering a number of different boroughs. County councils and county borough councils in Wales are both waste collection authorities and waste disposal authorities. Councils in Scotland are also both waste collection authorities and waste disposal authorities.

13. Waste collection authorities have a duty to collect household waste in their areas - s.45(1)(a). They must also collect commercial waste if requested to do so by the occupier of the premises where it is produced - s.45(1)(b) - and may collect industrial waste if requested to do so by the occupier of the premises where it is produced, with the consent of the waste disposal authority - s.45(2). Any waste collected must be delivered to the relevant waste disposal authority - s.48(1) - although a waste collection authority may make its own arrangements to recycle waste - s.48(2) - provided the waste disposal authority has not made its own arrangements to recycle waste and does not object to the waste collection authority recycling the waste itself - s.48(4). The relevant waste disposal authority must then arrange for the disposal of the waste collected in its area by the waste collection authorities - s.51(1)(a). Waste disposal authorities must also arrange for places to be provided at which residents in their areas can deposit their household waste (commonly known as "civic amenity sites") - s.51(1)(b).

14. It is a criminal offence under s.33(1) to:
a. deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless an environmental permit authorising the deposit is in force and the deposit is in accordance with the permit;
b. submit controlled waste, or knowingly cause or knowingly permit controlled waste to be submitted, to any listed operation (i.e. any operation listed in the Environmental Permitting (England and Wales) Regulations 2010/675) that: (i) is carried out in or on any land, or by means of any mobile plant; and (ii) is not carried out under and in accordance with an environmental permit; or
c. treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health.

15. The maximum penalties for offences under s.33(1) are an unlimited fine and two years' imprisonment on summary conviction and an unlimited fine and five years' imprisonment on conviction on indictment - s.33(8).

16. Section 34 creates a duty of care for any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a dealer or broker, has control of such waste, to:
a. take all such measures applicable to him in that capacity as are reasonable in the circumstances to prevent any contravention by any other person of s.33(1);
b. to prevent any contravention by any other person of reg.12 of the Environmental Permitting (England and Wales) Regulations 2010/675 or of a condition of an environmental permit;
c. to prevent the escape of waste from his control or that of any other person; and
d. on the transfer of waste to secure that the transfer is only to an authorised person or to a person for authorised transport purposes, and that there is transferred such a written description of the waste as will enable other persons to avoid a contravention of the Environmental Permitting (England and Wales) Regulations 2010/675 or a contravention of a condition of an environmental permit.

17. The s.34 duty of care does not generally apply to occupiers of domestic property.

18. The maximum penalty for offences under s.34 is an unlimited fine, both on summary conviction and on conviction on indictment.

19. Waste collection authorities have the power to make requirements for waste receptacles for both domestic waste - s.46 - and commercial or industrial waste - s.47. As a result of s.58 of the Deregulation Act 2015, breaches of such requirements for domestic waste in England are now dealt with through civil fixed monetary penalties - ss.46A - 46D. There is a right of appeal against the penalty notices, and any unpaid notices are recoverable only as a civil debt. Breaches of the requirements for domestic waste receptacles in Wales and for commercial or industrial waste receptacles in both England and Wales are dealt with under a system of fixed penalty notices - s.47ZA. However, there is no right of appeal against a fixed penalty notice issued under s.47ZA, so a waste collection authority can prosecute for non-payment of a fixed penalty notice served under s.47ZA - (s.46(6) for Wales only) and s.47(6) (for both England and Wales).

20. Where waste has been deposited in or on land in the area of a waste collection authority or waste regulation authority in breach of s.33(1) or reg.12 of the Environmental Permitting (England and Wales) Regulations 2010/675, the authority may serve notice on the occupier of the land requiring him to remove the waste from the land within a specified period (but not less than 21 days) beginning with the service of the notice, and/or to take specified steps within the specified period with a view to eliminating or reducing the consequences of the deposit of the waste - s.59(1). There is a right of appeal to the Magistrates' Court against the service of such a notice - s.59(2); such an appeal must be made within 21 days of the date of service of the notice and suspends the effect of the notice pending the outcome of the appeal. Where there is no occupier of the land or the occupier cannot be found without the authority incurring unreasonable expense, then the authority may serve the notice on the owner of the land - s.59ZA.

21. Part IIA - Contaminated Land:Part IIA was inserted into the Act by s.57 of the Environment Act 1995. It deals with the identification and remediation of contaminated land. "Contaminated land" is defined in s.78A(2) as "any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that:
a. significant harm is being caused or there is a significant possibility of such harm being caused; or
b. significant pollution of controlled waters is being caused or there is a significant possibility of such pollution being caused".

22. Local authorities have a duty to inspect their areas for the purpose of identifying contaminated land and enabling them to decide whether any such land is land which is required to be designated as a "special site" - s.78B. The Contaminated Land (England) Regulations 2006/1380 and the Contaminated Land (Wales) Regulations 2006/2989 prescribe which sites are required to be designated as special sites in England and Wales respectively. The Environment Agency and Natural Resources Wales are responsible for remediating special sites in England and Wales respectively, although the identification and designation of all contaminated land is the responsibility of local authorities in both jurisdictions.

23. Once a site has been designated as contaminated land and the relevant enforcing authority (i.e. the local authority for any sites other than special sites and the Environment Agency/Natural Resources Wales for any special sites) must identify the "appropriate persons" responsible for remediation and serve a remediation notice on them - s.78E. An "appropriate person" is "any person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land..." - s.78F(2). However, if no causer or knowing permitter can be found after reasonable enquiry, then the owner or occupier for the time being of the contaminated land in question is an appropriate person - s.78F(4). The exclusion from liability of appropriate persons and apportionment of liability between them is determined in accordance with statutory guidance issued by the Secretary of State - s.78F(5) and s.78F(6).

24. A remediation notice may require an appropriate person to carry out work in relation to third party land or water, so s.78G provides appropriate persons with rights of entry and provides affected land owners with rights to compensation from appropriate persons exercising those rights of entry.

25. It is a criminal offence not to comply with a remediation notice - s.78M. The maximum penalty where the notice relates to trade, industrial or business premises is an unlimited fine and a daily fine of £2,000 for each day the offence continues following conviction. In all other cases the maximum penalty is an unlimited fine and a daily fine of £500 for each day the offence continues after conviction. If a remediation notice is not complied with, the enforcing authority also has the power to carry out remediation itself and recover its costs from the relevant appropriate persons - s.78N and s.78P. However, an appropriate person has a right to appeal against a remediation notice - s.78L. An appeal must be made within 21 days of service of the remediation notice and is made to the Secretary of State in England and the Welsh Government in Wales.

26. Part III - Statutory Nuisance: Statutory nuisances are defined in s.79(1) of the Act. They comprise:
a. any premises in such a state as to be prejudicial to health or a nuisance;
b. smoke emitted from premises so as to be prejudicial to health or a nuisance;
c. fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;
d. any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;
e. any accumulation or deposit which is prejudicial to health or a nuisance;
f. any animal kept in such a place or manner as to be prejudicial to health or a nuisance;
g. any insects emanating from relevant industrial, trade or business premises and being prejudicial to health or a nuisance;
h. artificial light emitted from premises so as to be prejudicial to health or a nuisance;
i. noise emitted from premises so as to be prejudicial to health or a nuisance;
j. noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment in a street; and
k. any other matter declared by any enactment to be a statutory nuisance.

27. Local authorities have duties to inspect their areas to detect statutory nuisances and to take such steps as are reasonably practicable to investigate complaints of statutory nuisances made by residents living in their areas - s.79(1). Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur, in its area, it must serve an abatement notice requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence; and/or requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes - s.80(1). An abatement notice must also specify the time or times within which the requirements of the notice are to be complied with.

28. In most cases, an abatement notice must be served on the "person responsible for the nuisance" - s.80(2)(a). The exceptions are where the nuisance arises from any defect of a structural character (in which case the notice must be served on the owner of the premises - s.80(2)(b)) and where the person responsible for the nuisance cannot be found or the nuisance has not yet occurred (in which case the notice must be served on the owner or occupier of the premises - s.80(2)(c)). Any person served with an abatement notice has a right of appeal against the notice to the Magistrates' Court - s.80(3). Any such appeal must be made within the period of 21 days, beginning with the date on which the recipient was served with the notice.

29. Contravening or failing to comply with any requirement or prohibition imposed by an abatement notice, without reasonable excuse, is a criminal offence - s.80(4). The maximum penalties are an unlimited fine on conviction and a further daily fine of £500 for each day that the offence continues after conviction - s.80(5). If the offence is committed on industrial, trade or business premises, then the maximum penalty is also an unlimited fine - s.80(6), but s.80(7) provides a defence that the "best practicable means" were used to prevent, or to counteract the effects of, the nuisance. This defence is generally only available where the nuisance arises on industrial, trade or business premises - s.80(8).

30. As an alternative to complaining to the local authority, a person aggrieved by the existence of a statutory nuisance can also make a complaint to the Magistrates' Court - s.82(1). The complainant must give the defendant at least 21 days' notice (3 days' notice in the case of noise nuisance) of his intention to bring proceedings - s.82(6) and s.82(7). If the Court is satisfied that the alleged nuisance exists, or that although abated it is likely to recur on the same premises, it must make an order (commonly known as an "abatement order") requiring the defendant to abate the nuisance, within a time specified in the order, and to execute any works necessary for that purpose; and/or prohibiting a recurrence of the nuisance, and requiring the defendant, within a time specified in the order, to execute any works necessary to prevent the recurrence - s.82(2). It may also fine the defendant an unlimited amount. If the Court is of the opinion that the nuisance complained of renders premises unfit for human habitation, it may prohibit the use of those premises for human habitation until the premises are rendered fit for that purpose, to the Court's satisfaction - s.82(3).

31. Breach of an abatement order without reasonable excuse is a criminal offence - s.82(8). The maximum penalty is an unlimited fine and a further daily fine of £500 for each day that the offence continues after conviction - s.82(9). As a result of s.85(1) Legal Aid, Sentencing and Punishment of Offenders Act 2012 the maximum penalties for breach of an abatement order are the same, regardless of the type of premises on which the nuisance arises, but, as with the offence of breaching an abatement notice, it is a defence to a prosecution for breaching an abatement order that the "best practicable means" were used to prevent, or to counteract the effects of, the nuisance, where the nuisance arises on industrial, trade or business premises - s.82(9) and s.82(10).

32. Where proceedings are brought under s.82, the Court has a number of additional powers and duties. First, where a person is convicted of breaching an abatement order, it may direct the relevant local authority (after giving it an opportunity of being heard) to do anything which the person convicted was required to do by the abatement order to which the conviction relates - s.82(11). Second, where it is proved that the alleged nuisance existed at the date of the making of the complaint then, whether or not at the date of the hearing it still exists or is likely to recur, the Court must order the defendant(s) to compensate the complainant for any expenses properly incurred by him in the proceedings - s.82(12). Third, if it appears to the Court that neither the person responsible for the nuisance nor the owner or occupier of the premises can be found, then it may direct the relevant local authority to do anything which the Court would have ordered that person to do (after giving the relevant local authority an opportunity of being heard) - s.82(13).

33. Part IV - Litter:Part IV of the Act contains controls over litter and provides local authorities with powers to deal with it. "Litter" is defined non-exhaustively as including discarded cigarette ends and discarded chewing-gum - s.98(5A). Responsibility for dealing with litter falls on local authorities, which are designated as "principal litter authorities" - s.86(2) (England and Wales) and s.86(3) (Scotland).

34. Throwing down, dropping or otherwise depositing litter in the area of a principal litter authority which is open to the air is a criminal offence - s.87(1). The offence is a summary-only offence, for which the maximum penalty is a £2,500 fine - s.87(5). As an alternative to prosecution, a principal litter authority may issue a fixed penalty notice - s.88(1). The maximum fixed penalty notices are £75 in England and Wales - s.88(6A) and £80 in Scotland - s.88(6).

35. Although local authorities are generally responsible for keeping land in their areas clear of litter, responsibility for keeping highways clear of litter falls on local authorities in relation to highways for which they are responsible and on the Secretary of State in relation to trunk roads and other roads for which he is responsible - s.89(1). In addition, the Crown is responsible for Crown land and statutory undertakers are responsible for their land. The responsibility is a qualified duty to ensure that land is, so far as is practicable, kept clear of litter and refuse - s.89(1).

36. Where any person is aggrieved by the defacement, by litter or refuse, of any land or highway, that person may make a complaint to the Magistrates' Court - s.91(1). In the case of a highway, any person may also make a complaint that "he is aggrieved by the want of cleanliness" of the highway - s.91(2). Proceedings must be brought against the person who has the duty to keep the land or highway clear of litter - s.91(4) - and cannot be brought by a principal litter authority - s.91(3). If the Court is satisfied that the highway or land in question is defaced by litter or refuse (or in the case of a highway, is wanting in cleanliness) the Court may make a "litter abatement order" requiring the defendant to clear the litter or refuse away (or to clean the highway) within a time specified in the order - s.91(6). Failure to comply with a litter abatement order without reasonable excuse is a criminal offence. The offence is summary-only and the maximum penalty is a £2,500 fine, with a further fine of £125 for each day on which the offence continues after the conviction - s.91(9).

37. If a principal litter authority is satisfied that any land in its area is defaced by litter or refuse so as to be detrimental to the amenity of the locality, it may serve a "litter clearing notice" on the occupier or owner of the relevant land requiring the land to be cleared of the litter or refuse and, if the principal litter authority is satisfied that the land is likely to become defaced by litter or refuse again, to take reasonable steps to prevent the land from becoming so defaced - s.92A. There is a right of appeal against service of a litter clearing notice; any appeal must be made within 21 days of the notice being served - s.92B. Failure to comply with a litter clearing notice without reasonable excuse is a criminal offence - s.92C. The offence is summary-only and the maximum penalty is a £2,500 fine.

38. Principal litter authorities and their employees have no liability to occupiers or owners of land arising out of anything done or omitted to be done in the exercise or purported exercise of their litter control powers, unless they have acted in bad faith, have failed to exercise due care and attention or have breached the Human Rights Act 1998 - s.97B. Local authorities may also resolve to adopt powers in relation to abandoned shopping and luggage trolleys - s.99(1). These powers are set out in Sch.4 to the Act.

39. Part VI - GMOs:Part VI of the Act implements Directive 2001/18 and Directive 2009/41. The purpose of Pt VI is to ensure that all appropriate measures are taken to avoid damage to the environment which may arise from the escape or release from human control of genetically modified organisms (GMOs) - s.106(1). Section 106 also defines the terms "organism" and "genetically modified".

40. Any person wishing to import, acquire, release or market any GMOs must first carry out a risk assessment and, in prescribed cases, give notice to the Secretary of State - s.108(1). There are various general duties which are imposed on persons who are proposing to import or acquire GMOs, keep GMOs or are proposing to release or market GMOs - s.109. If the Secretary of State is of the opinion that importing, acquiring, releasing or marketing GMOs or continuing to keep GMOs will involve a risk of causing damage to the environment he has the power to serve a prohibition notice - s.110. A consent from the Secretary of State is also required for importing, acquiring, releasing or marketing GMOs - s.111. Such a consent may be granted subject to conditions, or refused. There is no right of appeal against a refusal to grant a consent or against conditions imposed on a consent.

41. The Secretary of State has the power to appoint inspectors for enforcing the provisions of Pt VI of the Act - s.114. These inspectors have wide powers of entry and inspection - s.115. They also have powers to obtain information from persons - s.116 - and to deal with the cause of an imminent danger of damage to the environment arising from a GMO - s.117.

42. There are a wide range of criminal offences under Pt VI, which are listed in s.118. The maximum penalties for certain of these offences are an unlimited fine and six months' imprisonment on summary conviction and an unlimited fine and five years' imprisonment on conviction on indictment. In prosecutions where a breach of the general duties contained in s.109 or the breach of a condition of a consent is alleged, the onus of proof is reversed and the defendant must prove that there was no best available technique not entailing excessive cost than was in fact used to comply with the duty or satisfy the condition - s.119. A convicting court also has the power to order the cause of an offence to be remedied - s.120. Following a conviction under s.118 the Secretary of State has the power to arrange for reasonable steps to be taken to remedy the harm and to recover the cost of taking those steps from any person convicted of the offence - s.121.

43. Part VIII - Miscellaneous Provisions:Part VIII of the Act contains a variety of provisions on diverse matters, such as:
a. Powers for the Secretary of State to make regulations prohibiting or restricting the importation, use, supply or storage of injurious substances or articles - s.140.
b. Powers for the Secretary of State to make regulations prohibiting or restricting the importation or exportation of waste - s.141.
c. Powers for the Secretary of State to make regulations for obtaining information about potentially hazardous substances - s.142.
d. Requirements for dealing with stray dogs - s.149 and s.150.
e. Authorising the Secretary of State to give financial assistance to a wide range of organisations (both international and domestic) for environmental purposes.

 

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