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Controlled Activities Regulations

ANNEX A

Draft Regulations

Draft Regulations laid before the Scottish Parliament under section 36(6) of the Water Environment and Water Services (Scotland) Act 2003, for approval by resolution of the Scottish Parliament.

2004 No.

environmental protection

WATER

The Water Environment (Controlled Activities) (Scotland) Regulations 2004

Arrangement of regulations

PART I

General

1. Citation
2. Commencement
3. Interpretation
4. Modifications of the Act
5. Exempt activities
6. Prohibition

PART II

Applications and Procedure

7. Form and content of applications for authorisation
8. Duty of SEPA to determine application
9. Registration
10. General Binding Rules
11. Licence
12. Time-limits for determining applications
13. Power of SEPA to impose authorisation
14. Conditions — General
15. Identification of Responsible Person
16. Direct discharges to groundwater

PART III

Authorisations

17. Review of authorisations
18. Variation of authorisation
19. Transfer of authorisation
20. Surrender of authorisation
21. Revocation of authorisation

PART IV

Enforcement

22. Duty to monitor
23. Enforcement notice
24. Suspension notice
25. Power of SEPA to prevent or remedy harm to the water environment
26. Works notices — grant of, and compensation for, rights of entry etc.
27. Powers of entry
28. Enforcement by the courts

PART V

Information and publicity

29. Power of the Scottish Ministers and SEPA to obtain information
30. Public register of information
31. Exclusion from the register of information affecting national security
32. Exclusion from the register of certain confidential information
33. Advertisement of application
34. Consultation

PART VI

Offences

35. Offences
36. Admissibility of evidence
37. Defence to principal offences in respect of authorised activities
38. Power of court to order cause of offence to be remedied

PART VII

Appeals

39. Appeals to the Scottish Ministers

PART VIII

General

40. Application to the Crown
41. Notices

SCHEDULE 1
Charging Scheme
SCHEDULE 2
General Binding Rules
SCHEDULE 3
List of the main pollutants
SCHEDULE 4
Authorised direct discharges to groundwater
SCHEDULE 5
Unauthorised direct discharges to groundwater
SCHEDULE 6
Issue of warrants
SCHEDULE 7
Procedures in connection with appeals to the Scottish Ministers
SCHEDULE 8
Derogations permitted under Article 4 of the Directive
SCHEDULE 9
Compensation for Grant of Rights
SCHEDULE 10
Register

The Scottish Ministers, in exercise of the powers conferred on them by section 20, section 37 and Schedule 2 of the Water Environment and Water Services (Scotland) Act 2003(a), and of all other powers enabling them in that behalf and having complied with the requirements of section 21 of that Act, hereby make the following Regulations:

(a) 2003 asp 3.

PART I
General

Citation

1.  These Regulations may be cited as the Water Environment (Controlled Activities) (Scotland) Regulations 2004.

Commencement

2. – (1) Subject to paragraph (2) these Regulations shall come into force on 1^st October 2005.

(1) The Regulations shall apply to building, engineering or other works in or in the vicinity of, inland surface water or wetlands with effect from 1^st December 2005.

Interpretation

3. – (1) In these Regulations—

"the Act" means the Water Environment and Water Services (Scotland) Act 2003;

"authorisation" means a licence, a registration under a general binding rule or a registration.

"the Directive" means Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy;

"general binding rules" has the meaning given in regulation 10;

"licence" has the meaning given in regulation 11;

"operator" means, in relation to a controlled activity, any person who carries on or has control over the carrying on of that activity;

"pollutant" means any substance or heat liable to cause pollution, including those listed in Schedule 3;

"population equivalent" means a measure of the organic biodegradable load calculated on the basis of the maximum weekly load entering the treatment plant during the year, excluding unusual events such as those due to high rainfall, where one population equivalent is the organic biodegradable load that has a 5-day biochemical oxygen demand (BOD₅) of 60g oxygen per day;

"premises" includes any land, vehicle, vessel or mobile plant;

"registration" has the meaning given in regulation 9(4);

"relevant land" means—

(a) any land in relation to which the works notice in question requires, or may require, operations to be carried out; or
(b) any land adjoining or adjacent to that land;

"responsible person" means the person specified in a registration under a general binding rule or a licence, in accordance with regulation 15;

"SEPA" means the Scottish Environment Protection Agency.

(2) A reference in these Regulations to anything done in writing or produced in written form includes a reference to an electronic communication, as defined in the Electronic Communications Act 2000(a) which has been recorded in written form and is capable of being reproduced in that form.

(a) 2000 c.7.

Modifications of the Act

4. – (1) There is substituted for section 20(3)(b), (c) and (d) of the Act the following:—

"(b) abstraction of water from the water environment;

(c) the construction, alteration or operation of impounding works in surface water or wetlands;

(d) building, engineering, or other works in, or in the vicinity of, inland surface water or wetlands",

and there is added after section 20(3)(e) of the Act:—

" (f) artificial recharge or augmentation of groundwater".

(2) For the purposes of abstraction, there is substituted in section 20(6) of the Act the following:—

"abstraction" means in relation to the water environment, the doing of anything whereby any water is removed or diverted by mechanical means, pipe or any engineering structure or works from that water, whether temporarily or permanently, including anything whereby the water is so removed or diverted for the purpose of being transferred to another area of the water environment, and includes:

(a) the construction of any well, borehole, or other work by which water may be abstracted;
(b) the extension of any well, borehole, surface water intake or other work; or
(c) the installation or modification of any machinery or apparatus by which additional quantities of water may be abstracted by means of a well, borehole or other work."

(3) For the purposes of impounding works, there is substituted in section 20(6) of the Act the following:—

"impounding works" means in relation to surface water or wetlands—

(a) any dam, weir or other works in surface water or wetlands by which water may be impounded;
(b) any works diverting the flow of water in surface water or wetlands in connection with the construction or alteration of any dam, weir or other works falling within paragraph (a),".

(4) For the purposes of section 20(3)(a) of the Act, pollution of the water environment includes the discharge of substances in Schedule 3.

Exempt activities

5. These Regulations shall not apply to a controlled activity insofar as that activity is regulated by, or authorised under—

(a) the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Regulations 2003(a);
(b) the Sludge (Use in Agriculture) Regulations 1989(b);
(c) the Designation of Nitrate Vulnerable Zones (Scotland) Regulations 2002(c);
(d) the Designation of Nitrate Vulnerable Zones (Scotland) (No. 2) Regulations 2002(d); or
(e) the Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 2003(e).

Prohibition

6. No person shall carry on, or shall cause or permit others to carry on, any controlled activity, except insofar as it is—

(a) authorised by SEPA under these Regulations; and
(b) carried on in accordance with that authorisation.

(a) S.S.I. 2003/531. These Regulations re-enact, with amendments, the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Amendment Regulations S.S.I. 2001/206, as amended by S.S.I. 2001/248.
(b) S.I. 1989/1263.
(c) S.S.I. 2002/276.
(d) S.S.I. 2002/546.
(e) S.S.I. 2003/51.

PART II
Applications and Procedure

Form and content of applications for authorisation

7. An application for an authorisation to carry on a controlled activity shall be made to SEPA in writing and shall be accompanied and supplemented by—

(a) any charge prescribed by SEPA in accordance with Schedule 1; and
(b) all such information, in such form, if any, as SEPA may reasonably require.

Duty of SEPA to determine application

8. – (1) Where an application is made to SEPA under regulation 7, SEPA shall assess the risk to the water environment posed by the carrying on of that activity.

(2) SEPA shall either grant or refuse to grant an authorisation to carry on that activity.

(3) Where SEPA decides to grant an authorisation, it shall be in the form of either:

(a) a registration in accordance with regulation 9;
(b) a registration under a general binding rule in accordance with regulation 10; or
(c) a licence in accordance with regulation 11.

Registration

9. – (1) SEPA may authorise the carrying on of the controlled activity in accordance with the terms of the application.

(2) SEPA shall register an authorisation granted under paragraph (1) in accordance with regulation 30.

(3) A controlled activity will be deemed to have been authorised under paragraph (1) from the date on which the authorisation is registered in accordance with paragraph (2).

(4) An authorisation under this regulation is known as a "registration".

General Binding Rules

10. – (1) Where SEPA receives an application under regulation 7 to carry on a controlled activity specified in Column 1 of Schedule 2, SEPA shall either confirm or refuse to confirm that the rules relating to that activity and specified in Column 2 of Schedule 2 shall apply to that activity.

(2) SEPA shall register an authorisation under this regulation in accordance with regulation 30.

(3) A controlled activity is authorised under this regulation from the date on which it is registered in accordance with paragraph (2).

(4) The rules contained in Column 2 of Schedule 2 shall be known as "general binding rules" and an authorisation under this regulation is known as a "registration under a general binding rule".

(5) Where there is a change in the carrying on of the activity specified in Column 1 of Schedule 1 it shall be the duty of the responsible person to notify SEPA in writing of that change.

Licence

11. – (1) SEPA may either grant a licence subject to conditions set down in accordance with these Regulations, or refuse to grant a licence.

(2) SEPA may grant a licence under paragraph (1) in respect of one or more controlled activities.

(3) SEPA shall impose such conditions as it considers necessary or appropriate—

(a) so as to ensure compliance with objectives set under section 9 of the Act or paragraph 6 of Schedule 1 of the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004(a) in so far as those objectives relate to Scotland.
(b) in accordance with any programme of measures set under section 9 of the Act;
(c) so as to secure efficient and sustainable water use; and
(d) having taken into account the provisions of Schedule 8.

(4) SEPA may impose such other conditions as it considers appropriate.

(5) When considering whether to grant a licence under paragraph (1), or when imposing conditions in respect of a licence under paragraph (3) or (4), SEPA may have regard to—

(a) all controlled activities being carried on or likely to be carried on in the area of the water environment likely to be affected by the controlled activity to which the application relates; or
(b) any agreement reached between different persons concerning controlled activities carried on in the relevant area of the water environment.

(6) A licence is deemed to have been granted under paragraph (2) from the date specified in the licence.

(7) An authorisation under this regulation is known as a "licence".

(a) S.I. 2004/99.

Time-limits for determining applications

12. – (1) Where SEPA decides to grant an authorisation in the form of a registration, it must give notice of its determination of the application within a period of 28 days beginning with the date on which it receives the application or within such longer period as may be agreed with the applicant.

(2) Where SEPA decides to grant an authorisation in the form of a registration under a general binding rule or a licence it must give notice of its determination of the application within the period of 4 months beginning with the date on which it receives the application or within such longer period as may be agreed with the applicant.

(3) For the purposes of determining either the 28-day period mentioned in paragraph (1), or the 4 month period mentioned in paragraph (2), SEPA shall disregard any periods beginning with the date on which it serves notice under regulation 33(2) and ending with the date by which any written representations must be considered under regulation 33(5).

(4) SEPA may, by notice in writing to the applicant, require the applicant to furnish such further information specified in the notice, within the period so specified, as it may require for the purpose of determining the application and if the applicant fails to furnish the specified information within the period specified, the application shall, if SEPA gives notice to the applicant that it treats the failure as such, be deemed to have been withdrawn at the end of that period.

(5) Where SEPA fails to determine the application within the periods specified in paragraphs (1) or (2) as the case may be, the application shall be deemed to have been refused.

Power of SEPA to impose authorisation

13. – (1) If it appears to SEPA that a person is, without the consent of SEPA carrying on a controlled activity, SEPA may treat the activity as an activity in respect of which an application was made by a person carrying on the activity in accordance with regulation 7, and may if it thinks fit, serve on that person an authorisation subject to such conditions as SEPA may specify.

(2) Authorisation given in pursuance of this regulation shall only have effect from the date on which the authorisation is served on the responsible person if any, and otherwise on the date it is issued by SEPA.

Conditions — General

14. – (1) In considering whether to grant, review, vary or revoke an authorisation under these Regulations, and the type of authorisation which should be granted, reviewed, varied or revoked, SEPA shall consider whether any of the circumstances in Schedule 8 apply in respect of the application.

(2) SEPA may, when granting an authorisation under these Regulations, specify the period within which that authorisation shall have effect, and in so doing shall apply such conditions so as to meet the requirements of regulation 20.

(3) SEPA may grant an authorisation in respect of one or more controlled activities.

Identification of Responsible Person

15. – (1) Subject to paragraph (2), where SEPA decides to grant an authorisation in the form of a registration under a general binding rule under regulation 10, or a licence under regulation 11, SEPA shall require the applicant to nominate a person who shall secure compliance with the terms of the authorisation.

(2) SEPA shall specify such person under paragraph (1) unless it considers that the person will not secure compliance with the terms, limitations and conditions of the authorisation.

(3) If SEPA cannot specify a person in accordance with paragraph (2), it shall not grant the relevant authorisation.

(4) The person specified in accordance with paragraph (1) is known as the "responsible person".

Direct discharges to groundwater

16. – (1) SEPA shall only authorise a direct discharge of a pollutant into groundwater if the discharge is of a type specified in Schedule 4.

(2) Where a discharge is authorised under paragraph (1), it must not:

(a) prevent the achievement of environmental objectives for that groundwater established under section 9 of the Act or paragraph 6 of Schedule 1 of the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004(a) insofar as those objectives relate to Scotland.
(b) permit the discharge of a substance included in Schedule 5.

(a) S.I. 2004/99.

PART III
Authorisations

Review of authorisations

17. – (1) SEPA shall periodically review authorisations granted under these Regulations, and may do so at any time.

(2) SEPA shall periodically review the general binding rules and the activities to which those rules apply.

(3) If as a result of such a review it considers that modifications to the general binding rules or the activities to which those rules apply are required, it shall make such recommendations as it considers appropriate to the Scottish Ministers in writing.

Variation of authorisation

18. – (1) SEPA may vary either:

(a) an authorisation or any provisions of an authorisation;
(b) the type of authorisation; or
(c) the provisions of a licence, which variation may include the variation of an existing condition or the addition of a new condition,

if as a result of a review under regulation 17 or at the request of a responsible person or otherwise, it considers it necessary or appropriate.

(2) Where SEPA decides to make a variation under paragraph (1), it shall serve a notice on the responsible person (a "variation notice") specifying the variations of the authorisation and the date on which the variations are to take effect, and unless the variation notice is withdrawn by SEPA, the variations specified in the variation notice shall take effect on the date so specified and it may issue to the responsible person the authorisation as varied under this paragraph.

(3) If the responsible person fails to provide SEPA with such information as SEPA may require for the purpose of determining whether to vary the authorisation in the period specified, the request shall, if SEPA gives notice to the responsible person that it treats the failure as such, be deemed to have been withdrawn at the end of that period.

(4) Where SEPA, having received a request from the responsible person to vary the authorisation decides not to vary the authorisation, it shall give notice of, and reasons for, its decision to the responsible person.

(5) SEPA may withdraw a variation notice at any time.

(6) SEPA shall, when determining whether to vary an authorisation in accordance with paragraphs (1)(a) or (b), comply with the requirements of regulation 8(1).

Transfer of authorisation

19. – (1) Where a responsible person wishes to transfer in whole or in part, an authorisation granted under these Regulations, to another person ("the proposed responsible person"), the responsible person and the proposed responsible person shall jointly in writing apply to SEPA for a transfer of the authorisation to the proposed responsible person.

(2) An application under paragraph (1) shall be accompanied by:

(a) the authorisation;
(b) any fee prescribed in respect of the application under Schedule 1; and
(c) such other information as SEPA may reasonably require.

(3) Where a responsible person wishes to transfer an authorisation in respect of only part of an authorisation, or part of a controlled activity to which the authorisation relates, an application under paragraph (2) shall identify the part of the authorisation or controlled activity to which the application applies.

(4) SEPA may grant the application under paragraph (2) unless it considers that the proposed responsible person will not secure compliance with the terms, limitations and conditions of the authorisation or other grounds exist on which it would be reasonable to refuse the application.

(5) Where SEPA grants an application under paragraph (2) it must:

(a) in the case of a transfer of the whole authorisation:

(i) fix the date from which the transfer is to have effect;
(ii) furnish the proposed responsible person with a certificate stating that the proposed responsible person is the responsible person with effect from the date specified in paragraph (5)(a)(i) for the purposes of the authorisation;
(iii) return the authorisation to the proposed responsible person; and

(b) in the case of a partial transfer:

(i) issue a new authorisation to the proposed responsible person which applies to the affected part of the original authorisation, and identifies the controlled activities covered by the transfer and includes any conditions required by paragraph (6);
(ii) return the original authorisation to the responsible person varied to identify the controlled activities covered by the authorisation and the conditions applying after the transfer, required by paragraph (6).

(6) In the case of a partial transfer, any conditions included in the new authorisation and original authorisation after the transfer shall be the same as the conditions included in the original authorisation immediately before the transfer but subject to such variations as, in the opinion of SEPA, are necessary to take account of the transfer.

(7) If within the period of two months beginning with the date on which SEPA receives an application under paragraph (1), or within such longer period as SEPA and the applicants may agree in writing, SEPA has neither effected the transfer nor given notice to the applicant that it has refused the application, the application shall be deemed to have been refused at the end of that period.

(8) In this regulation "authorisation" means a registration under a general binding rule or a licence.

Surrender of authorisation

20. – (1) This regulation applies where either—

(a) a controlled activity ceases to be undertaken; or
(b) it is intended that a controlled activity will cease to be undertaken.

(2) Where this regulation applies a responsible person must apply to SEPA to surrender the whole authorisation or part of the authorisation ("partial surrender").

(3) An application under paragraph (2) shall be accompanied by:—

(a) the authorisation;
(b) any fee prescribed in respect of the application in accordance with Schedule 1; and
(c) all such other information as SEPA may reasonably require.

(4) Where SEPA is satisfied that such steps (if any) as are appropriate have been taken to:

(a) avoid any risk of harm to the water environment resulting from the carrying on or cessation of the controlled activity; and
(b) leave the relevant part of the water environment and any land affected by it in a state which will permit the achievement of the objectives of Article 4 of the Directive,

paragraph (5) will apply.

(5) Where this paragraph applies, SEPA shall:

(a) accept the surrender of the authorisation; and
(b) give the responsible person notice of its determination that the authorisation shall cease to have effect, or in the case of partial surrender shall cease to have effect to the extent surrendered, and the date on which the determination shall take effect.

(6) If, in the case of a partial surrender, SEPA is of the opinion that it is necessary to vary the authorisation to take account of the surrender, it shall specify the necessary variations in the notice of determination given under paragraph (4) and the variations specified in the notice shall take effect on the date specified in the notice.

(7) For the purposes of carrying out its duties under paragraphs (4) and (5), SEPA may require a responsible person to provide, in addition to the information described in paragraph (2), a report describing the condition of the relevant part of the water environment and any land affected by it.

(8) If SEPA is not satisfied as mentioned in paragraph (4) it shall notify the responsible person of its determination stating that the application has been refused.

(9) SEPA shall give notice of its determination of an application under this regulation within the period of 3 months beginning with the date on which it receives the application or within such longer period as it and the responsible person may agree in writing.

(10) If SEPA fails to give notice of its determination accepting the surrender or refusing the application within the period allowed by or agreed under paragraph (9), the application shall be deemed to have been accepted at the end of that period.

(11) SEPA may, by notice to the responsible person, require the responsible person to furnish such further information specified in the notice, within the period so specified, as it may require for the purpose of determining an application under this regulation.

(12) Where a notice is served on a responsible person under paragraph (9)—

(a) for the purpose of calculating the 3-month period mentioned in paragraph (9), no account shall be taken of the period beginning with the date on which the notice is served and ending with the date on which the information specified in the notice is furnished; and
(b) where the specified information is not furnished within the period specified, the application shall, if SEPA gives notice to the responsible person that it treats the failure as such, be deemed to have been withdrawn at the end of that period.

(13) SEPA may modify or withdraw a notice served under paragraph (9) at any time before the date specified in the notice as the date on which the surrender has effect, by notifying the responsible person in writing.

Revocation of authorisation

21. – (1) SEPA may at any time revoke an authorisation (in whole or in part) by serving a notice (a "revocation notice") on the responsible person.

(2) A revocation notice shall specify—

(a) in the case of a partial revocation under paragraph (1), the extent to which the authorisation is being revoked;
(b) in all cases, the date on which the revocation shall take effect, which shall be at least 28 days after the date on which the notice is served.

(3) An authorisation shall cease to have effect, or in the case of a partial revocation under paragraph (1), shall cease to have effect to the extent specified in the revocation notice, from the date specified in the notice.

(4) Where SEPA has served a revocation notice it may, before the date on which the revocation takes effect—

(a) withdraw the notice; or
(b) modify the extent to which the authorisation is being revoked.

PART IV
Enforcement

Duty to monitor

22.  It shall be the duty of SEPA to monitor compliance with the provisions of these Regulations in accordance with any programmes of monitoring prepared under section 8(2) of the Act.

Enforcement notice

23. – (1) If SEPA is of the opinion that a responsible person or operator has contravened, is contravening, or is likely to contravene an authorisation granted under these Regulations, it may serve upon the responsible person, and if appropriate, the operator a notice (an "enforcement notice").

(2) An enforcement notice served under this regulation shall—

(a) state that SEPA is of the opinion as set out in paragraph (1);
(b) specify the matters constituting the contravention or the matters making it likely that the contravention will arise, as the case may be;
(c) specify the steps that must be taken to remedy the contravention or to remedy the matters making it likely that the contravention will arise, as the case may be; and
(d) specify the period within which those steps must be taken.

(3) The steps that may be specified in an enforcement notice as steps that must be taken to remedy the contravention may include both steps that must be taken to make the controlled activity comply with the conditions of the authorisation and steps that must be taken to remedy the effects of any harm to the water environment.

(4) SEPA may at any time modify or withdraw an enforcement notice.

Suspension notice

24. – (1) If SEPA is of the opinion that the carrying on of a controlled activity involves a risk of serious harm to the water environment or any part of it, it shall serve a notice ("a suspension notice") on the responsible person, and if appropriate, the operator.

(2) Paragraph (1) applies whether or not the carrying on of the controlled activity contravenes an authorisation granted under these Regulations.

(3) A suspension notice served under this regulation shall:

(a) state that SEPA is of the opinion as set out in paragraph (1);
(b) specify the risk involved in continuing to carry on the controlled activity and the steps that must be taken to remove the risk and the period within which the steps must be taken; and
(c) either:

(ii) state that the authorisation shall, until the notice is withdrawn, cease to have effect to authorise the carrying on of the controlled activity; or
(ii) where the authorisation is to continue to have effect to authorise the carrying on of the controlled activity, state any steps, in addition to those already required to be taken by the authorisation, that are to be taken in carrying on those activities.

(4) A suspension notice may suspend in whole or in part an authorisation granted under these Regulations.

(5) Where a suspension notice is served under this regulation, the authorisation shall, on the service of the notice, cease to have effect as stated in the notice.

(6) SEPA may withdraw a suspension notice at any time and shall withdraw a notice when it is satisfied that either—

(a) there is no longer a risk of serious harm to the water environment or any part of it; or
(b) the steps required by the notice to remove the risk of serious harm to the water environment or any part of it have been taken.

(7) SEPA may modify a suspension notice at any time before the date on which the suspension or partial suspension is due to take effect.

Power of SEPA to prevent or remedy harm to the water environment

25. – (1) If SEPA is of the opinion that a person who has carried on, is carrying on or is likely to carry on a controlled activity has caused, is causing or is likely to cause harm to the water environment it may serve on the responsible person, and if appropriate, the operator, a notice (a "works notice").

(2) A works notice served under this regulation shall—

(a) state that SEPA is of the opinion as set out in paragraph (1);
(b) specify the matters which have caused, are causing, or are likely to cause harm to the water environment, as the case may be;
(c) specify the work that must be undertaken in order to remedy the harm caused, or prevent harm being caused, to the water environment, as the case may be;
(d) specify the period within which the work must be undertaken.

(3) SEPA may, if it considers it appropriate, require the cessation of a controlled activity until such time as the works notice served under paragraph (1) has been complied with.

(4) Nothing in paragraph (1) shall entitle SEPA to require the carrying out of any works which would impede or prevent the carrying on of:

(a) a controlled activity authorised under and carried on in accordance with these Regulations;
(b) a prescribed process designated for central control which is authorised under Part I of the Environmental Protection Act 1990(a);
(c) the operation of an installation or mobile plant in accordance with a permit granted under the Pollution Prevention and Control (Scotland) Regulations 2000(a);
(d) an activity authorised by and carried on in accordance with a waste management or disposal licence under the Waste Management Licensing Regulations 1994.( b)

(5) SEPA shall be entitled to carry out investigations for the purpose of establishing the matters referred to in paragraph (1) and shall be entitled to carry out works under paragraph (2) if:

(a) it considers it necessary to do so forthwith; or
(b) it appears to SEPA, after reasonable inquiry, that no person can be found on whom to serve a works notice under paragraph (1).

(6) Where SEPA carries out any investigation or works in pursuance of this regulation, SEPA shall be entitled to recover the costs of doing so from the person under paragraph (1) who has caused, is causing or is likely to cause harm to the water environment by carrying on a controlled activity.

(7) SEPA may withdraw or modify a works notice at any time.

(8) No costs shall be recoverable under paragraph (5) where SEPA arranges for works or an investigation to be carried out under paragraph (4) if the responsible person shows that there was no risk of harm to the water environment requiring such steps to be taken and no other costs shall be recoverable which the responsible person shows to have been unnecessarily incurred by SEPA.

(a) 1990, c.43.
(b) 2000, S.S.I. No. 323

(a) S.I. 1994/1056 amended by S.I. 1994/1137, 1995/288, 1950, 1996/593, 634, 916, 972, 973, 1279; 1997, 351, 2203; 1998/606, 2746; SSI 2000/323 and 2003/170, 171 and 593.

Works notices — grant of, and compensation for, rights of entry etc.

26. – (1) A works notice may require a person to carry out work in relation to any land or water notwithstanding that that person is not entitled to carry out that work.

(2) Any person whose consent is required before any work required by a works notice may be carried out shall grant, or join in granting, such rights in relation to any land or waters as will enable the person on whom the works notice is served to comply with any requirements imposed by the works notice.

(3) Before serving a works notice, SEPA shall, in so far as it is reasonably practicable, consult such persons as appear to it to be—

(a) the owner or occupier of any relevant land: and
(b) a person who might be required by paragraph (2) to grant or join in granting any rights,

concerning the rights which that person may be so required to grant.

(4) A works notice shall not be regarded as invalid, or as invalidly served, by reason only of any failure to comply with paragraph (3).

(5) A person who grants, or joins in granting, any rights pursuant to paragraph (2) shall be entitled, on making an application in accordance with Schedule 9, to be paid by the person on whom the works notice is served, compensation of such amount and in such a manner as is determined in accordance with Schedule 9.

Powers of entry

27. – (1) SEPA may authorise any person to exercise any of the powers specified in paragraph (2) for the purpose of:

(a) determining whether any provision of these Regulations is being, or has been, complied with;
(b) exercising or performing one or more of its functions under these Regulations;
(c) determining whether and, if so, how such a function should be exercised or performed; or
(d) carrying out inspections, measurements and tests and taking away samples as appropriate for inspection, measurements and tests.

(2) The powers which a person is authorised to exercise under paragraph (1) are:

(a) to enter at any reasonable time (or, in an emergency, at any time and, if need be, by force) any premises which that person has reason to believe it is necessary to enter;
(b) on entering any premises by virtue of paragraph (a), to take—

(i) any other person duly authorised by SEPA and, if the authorised person has reasonable cause to apprehend any serious obstruction in the execution of that person’s duty, a constable; and
(ii) any equipment or materials required for any purpose for which the power of entry is being exercised;

(c) to make such examination and investigation as may in the circumstances be necessary;
(d) as regards any premises which that person has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph (c);
(e) to take such measurements and photographs and make such recordings as that person considers necessary for the purpose of any examination or investigation under paragraph (c);
(f) to obtain and to take samples, or cause samples to be taken, of any articles or substances found in or on any premises which that person has power to enter, and of the air, water or land in, on, or in the vicinity of, the premises;
(g) to monitor—

(i) the status of the water environment or any part of it; or
(ii) the carrying on of controlled activities in the water environment;

(h) to take steps for the measurement and recording of the rainfall;
(i) to install and maintain gauges, or other apparatus and works connected therewith, for any of the purposes mentioned in paragraphs (g) and (h);
(j) to take such steps as may be necessary in order to obtain any information required for any of the purposes mentioned in paragraphs (g) or (h);
(k) in the case of any article or substance found in or on any premises which that person has power to enter, being an article or substance which appears to that person to have caused or be likely to cause significant harm to the water environment, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it, unless that is necessary);
(l) in the case of any such article or substance as is mentioned in paragraph (k), to take possession of it and detain it for so long as is necessary for all; or any of the following purposes namely:

(i) to examine it, or cause it to be examined, and to do, or cause to be done, to it anything which that person has power to do under that paragraph;
(ii) to ensure that it is not tampered with before examination of it is completed;
(iii) to ensure that it is available for use as evidence in any proceedings for an offence under these Regulations in the case of SEPA under whose authorisation that person acts or in any other proceedings relating to a variation notice, enforcement notice or suspension notice or works notice under these Regulations;

to require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation under paragraph (c) to answer (in the absence of persons other than a person nominated by that person to be present and any person whom the authorised person may allow to be present) such questions as the authorised person thinks fit to ask;

(n) to require the production of, or where the information is recorded electronically, the furnishing of extracts from, any records—

(i) which are required to be kept under these Regulations for SEPA under whose authorisation that person acts; or
(ii) which is necessary for that person to see for the purposes of an examination or investigation under paragraph (c),

and to inspect and take copies of, or of entry in, the records;

(o) to require any person to afford that person such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred by this regulation.

(3) In any legal proceedings, it shall be presumed, until the contrary is shown, that any sample taken by virtue of the powers under this regulation at a gauge, measuring station or other place provided in compliance with a condition imposed in an authorisation granted under these Regulations in relation to the water environment or any part of it, is a sample of what was passing from land or premises to the water environment.

(4) SEPA may agree with the occupier of any land or premises from which a controlled activity is being carried on, the points at which in the exercise of the powers under this regulation, samples are to be taken, and in any legal proceedings it shall be presumed, until the contrary is shown, that any samples taken at a point fixed under this paragraph is a sample of what was passing from the land or premises to the water environment.

(5) An agreement under paragraph (4) shall have effect in relation to the land or premises (notwithstanding any change of occupier) but SEPA or the occupier for the time being may at any time declare that it shall cease to have effect.

(6) In default of agreement under paragraph (5), SEPA may apply to the Scottish Ministers, and the Scottish Ministers may, after considering any representations made to them by the occupier of land or premises and any other person who appears to the Scottish Ministers to be interested, fix the point at which samples are to be taken, and the Scottish Ministers may from time to time on the application of SEPA or the occupier of the land or premises review and vary any decision taken by them under this regulation.

(7) SEPA shall, as the Scottish Ministers may direct, maintain in the register under regulation 30, a record of sampling points fixed under this regulation.

(8) The powers which by virtue of paragraphs (1) and (2) are conferred in relation to any premises for the purpose of enabling SEPA to determine whether any provisions of these Regulations is being, or has been complied with shall include power, in order to obtain the information on which that determination may be made—

(a) to carry out experimental borings or other works on those premises; and
(b) to install, keep or maintain monitoring or other apparatus there.

(9) Except in an emergency, in any case where it is proposed to enter any premises used for residential purposes, or to take heavy equipment on to any premises which are to be entered, any entry by virtue of this regulation shall only be effected—

(a) after the expiration of at least seven days’ notice of the proposed entry given to a person who appears to the authorised person in question to be in occupation of the premises in question, and

(b) either—

(i) with the consent of a person who is in occupation of those premises; or
(ii) under the authority of a warrant by virtue of Schedule 6 to this Act.

(10) Except in an emergency, where an authorised person proposes to enter any premises and—

(a) entry has been refused and that person apprehends on reasonable grounds that the use of force may be necessary to effect entry, or
(b) that person apprehends on reasonable grounds that entry is likely to be refused and that the use of force may be necessary to effect entry,

any entry on to those premises by virtue of this regulation shall only be effected under the authority of a warrant by virtue of Schedule 6 to this Act.

(11) Where an authorised person proposes to exercise the power conferred by paragraph (2)(k) in the case of an article or substance found on any premises, that person shall, if so requested by a person who at the time is present on and has responsibilities in relation to those premises, cause anything which is to be done by virtue of that power to be done in the presence of that person.

(12) Before exercising the power conferred by paragraph (2)(k) in the case of any article or substance, an authorised person shall consult—

(a) such persons having duties on the premises where the article or substance is to be dismantled or subjected to the process or test, and
(b) such other persons,

as appear to that authorised person appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which that person proposes to do or cause to be done under the power.

(13) No answer given by a person in pursuance of a requirement imposed under paragraph (2)(m) shall be admissible in evidence against that person in any criminal proceedings.

(14) Nothing in this regulation shall be taken to compel the production by any person of a document of which that person would on grounds of legal professional privilege be entitled to withhold production on an order for the production of documents in an action in the Court of Session.

(15) A person who enters any premises in the exercise of any power conferred by this regulation must leave the premises as effectually secured against trespassers as that person found them.

(16) Where any person exercises any power conferred by this regulation, SEPA must make full compensation to any person who has sustained loss or damage by reason of—

(a) the exercise by a person authorised by SEPA of any powers conferred on that person by this regulation; or
(b) the performance of, or failure of the person to perform, the duty imposed by paragraph (15).

(17) Compensation is not payable by virtue of paragraph (16) in respect of any loss or damage if the loss or damage is attributable to the default of the person who sustained it.

(18) Any dispute as to a person’s entitlement to compensation under paragraphs (16) and (17) or as to the amount of any such compensation, is to be referred to the arbitration of a single arbiter appointed by agreement between SEPA and the person who claims to have sustained the loss or damage or, in default of agreement, by the President of the Lands Tribunal for Scotland.

(19) Section 108(8) of the Environment Act 1995 shall apply to this regulation as it applies to section 108 of the 1995 Act.

(20) Schedule 6 shall have effect with respect to the powers of entry and related powers which are conferred by this regulation.

Enforcement by the courts

28. If SEPA is of the opinion that proceedings for an offence under regulation 35(1) (f), (g) or (h) would afford an ineffectual remedy against a person who has failed to comply with the requirement of any enforcement notice, works notice, or a suspension notice, it may take proceedings in any court of competent jurisdiction for the purpose of securing compliance with the notice.

PART V
Information and publicity

Power of the Scottish Ministers and SEPA to obtain information

29. – (1) Subject to regulations 31 and 32, for the purpose of the discharge of their functions under these Regulations, the Scottish Ministers may require SEPA, by notice served on it, to furnish such information about the discharge of its functions under these Regulations as the Scottish Ministers may require.

(2) SEPA may serve on any person a notice (an "information notice") requiring that person to furnish to SEPA, within a period or at times specified in the notice and in a form so specified, any information so specified which SEPA reasonably considers is necessary for the purpose of any function conferred on SEPA by these Regulations.

(3) The information which a person may be required to furnish under paragraph (2) shall include information which, although it is not in the possession of that person or would not otherwise come into the possession of that person, is information which it is reasonable to require that person to obtain for the purposes of complying with the information notice.

Public register of information

30. – (1) Subject to regulations 31 and 32, it shall be the duty of SEPA, to maintain a register containing the particulars described in Schedule 10.

(2) Where, by virtue of regulation 32, information of any description is excluded from the register maintained by SEPA under this regulation, a statement shall be entered in the register indicating the existence of information of that description.

(3) It shall be the duty of SEPA—

(a) to secure that the register maintained by it under this regulation is available, at all reasonable times, for inspection by the public free of charge; and
(b) to afford to members of the public facilities for obtaining copies of entries, on payment of reasonable charges.

(4) The register maintained by SEPA under this regulation may be kept in any form.

(5) Schedule 10 shall have effect in relation to the register maintained by SEPA under this regulation.

Exclusion from the register of information affecting national security

31. – (1) No information shall be included in the register maintained by SEPA under regulation 30 if and so long as, a direction under section 21 of the Environmental Protection Act 1990(a) is issued or has been issued, in relation to that information, to the effect that in the opinion of the Secretary of State (or in the case of a direction issued by the Scottish Ministers with the consent of the Secretary of State, in the opinion of the Scottish Ministers) that information, or information of that description, would be contrary to the interests of national security.

(2) Directions issued under section 21(2) of that Act shall apply to the register maintained by SEPA under regulation 30 as they apply to the register maintained under section 20 of that Act and no information referred by SEPA in pursuance of section 21(2)(b) of that Act shall be included in the register maintained by SEPA under regulation 30 until the question of its inclusion is determined for the purposes of section 21 of that Act.

(3) Section 21(3) and (4) of that Act shall apply to the register maintained by SEPA under regulation 30, as it applies to the register maintained under section 20 of that Act and no information notified under section 21(4)(b) of that Act shall be included in the register maintained by SEPA under regulation 30 until the question of its inclusion is determined for the purposes of section 21 of that Act.

(a) 1990 c.43.

Exclusion from the register of certain confidential information

32. – (1) No information relating to the affairs of any individual or business shall be included in the register maintained by SEPA under regulation 30, without the consent of that individual or the person for the time being carrying on that business, if and so long as the information:—

(a) is, in relation to that individual or person, commercially confidential; and
(b) is not required to be included in the register in pursuance of a direction under paragraph (7),

but information is not commercially confidential for the purposes of this regulation unless it is determined under this regulation to be so by SEPA or as the case may be on appeal.

(2) Where information is furnished to SEPA for the purposes of these Regulations, the person furnishing it may apply to SEPA to have the information excluded from the register on the ground that it is commercially confidential (as regards that person or another person) and SEPA shall determine whether the information is or is not commercially confidential.

(3) Notice of a determination under paragraph (2) must be given to the applicant within the period of 28 days beginning with the date of the application or within such longer period as may be agreed with the applicant.

(4) If SEPA fails to give notice of its determination of an application under paragraph (2) within the period allowed by or under paragraph (3), it shall (if the applicant notifies SEPA in writing that the failure is being treated as such) be deemed to have been determined at the end of that period that the information is not commercially confidential.

(5) Subject to section 113 of the Environment Act 1995(a), where it appears to SEPA that any information that has been obtained by it under or by virtue of any provision of these Regulations and is required to be included in the register, unless excluded under this regulation, might be commercially confidential, SEPA shall (unless the information is the subject of an application under paragraph (2))—

(a) give to the person to whom or whose business it relates notice that that information is required to be included in the register, unless excluded under this regulation; and
(b) give that person a reasonable opportunity—

(i) of objecting to the inclusion of the information on the ground that it is commercially confidential; and
(ii) of making representations to SEPA for the purpose of justifying any such objection,

and, if any representations are made, SEPA shall, having taken the representations into account, give that person notice of its determination as to whether the information is or is not commercially confidential.

(a) 1995 c.25.

(6) Where, under paragraph (2),(5), or (8) SEPA determines that information is not commercially confidential:—

(a) the information shall not be entered in the register until the end of the period of 21 days beginning with the date on which the determination is notified to the person concerned or the determination is deemed to have been made under paragraph (4), as the case may be; and
(b) the person may, before the end of that period, appeal to the Scottish Ministers against the decision,

and, where an appeal is brought under this regulation in respect of any information, the information shall not be entered in the register until the end of the period of 21 days following the day on which the appeal is finally determined or is withdrawn.

(7) The Scottish Ministers may give to SEPA a direction as to specified information, or descriptions of information, which the public interest requires to be included in the register maintained by it under regulation 30, notwithstanding that the information may be commercially confidential.

(8) Information excluded from the register shall be treated as ceasing to be commercially confidential for the purposes of this regulation at the expiry of the period of 4 years beginning with the date of the determination by virtue of which it was excluded or at the expiry of such shorter period as may be specified in the notice of that determination for the purpose of this paragraph; but the person who furnished it may apply to SEPA for the information to remain excluded from the register on the ground that it is still commercially confidential and SEPA shall determine whether or not that is the case.

(9) Information is, for the purposes of any determination under this regulation, commercially confidential, in relation to any person, if its being contained in the register would prejudice, to an unreasonable degree, the commercial interests of that person.

Advertisement of application

33. – (1) Where SEPA receives an application for an authorisation under regulation 7, or if it serves a notice under regulation 13, it may if it thinks fit require the application or notice to be advertised in accordance with this regulation.

(2) Where SEPA requires an application or notice to be advertised under paragraph (1), it shall serve notice on the responsible person requiring the responsible person to advertise the application within the period of 28 days beginning with the date of service of the notice.

(3) SEPA shall specify in a notice under paragraph (2):

(a) the form of the advertisement;
(b) the text to be included within any notice within the advertisement;
(c) the publications within, or locations where, the advertisement should be placed; and
(d) the dates within which the advertisement should be placed.

(4) Any advertisement under paragraph (2) must explain that any person may make representations to SEPA in writing within the period of 28 days beginning with the date of the advertisement and give SEPA’s address for receiving the representations.

(5) It shall be the duty of SEPA to consider any written representations made under paragraph (4) within the period of 28 days beginning with the date on which the advertisement is published.

(6) The requirements of this regulation shall not apply insofar as they would require the advertisement of information which is not to be included in the register under regulation 30 by virtue of regulation 31 or 32.

Consultation

34. – (1) The Scottish Ministers and SEPA shall, in so far as they consider it reasonable to do so, and in whatever manner they consider appropriate, consult all interested parties in connection with the exercise of any of their functions under these Regulations.

(2) Where SEPA exercise the power under paragraph (1) it shall consider any representations received by it from any person with an interest in the exercise of the function by SEPA to which the consultation relates, within a period of 28 days beginning with the date on which it gives notice of the consultation.

PART VI
Offences

Offences

35. – (1) It is an offence for a person to—

(a) contravene regulation 6;
(b) carry on a controlled activity in contravention of an authorisation granted under regulation 9;
(c) contravene a general binding rule in respect of an activity authorised under regulation 10;
(d) contravene a licence (including any condition of a licence) granted under regulation 11
(e) fail to comply with the requirements of regulation 16;
(f) fail to comply with the requirements of an enforcement notice issued under regulation 23;
(g) fail to comply with the requirements of a suspension notice issued under regulation 24;
(h) fail to comply with the requirements of a works notice issued under regulation 25;
(i) obstruct an authorised person in the exercise of that person’s powers under regulation 27;
(j) to fail to comply with any requirement imposed under regulation 27;
(k) fail or refuse to provide facilities or assistance or any information or to permit any inspection reasonably required by an authorisation person in the execution of that person’s powers or duties under or by virtue of regulation 27;
(l) prevent any other person from appearing before an authorised person, or answering any question to which an authorised person may require an answer, pursuant to regulation 27(2);
(m) pretend to be an authorised person;
(n) fail to comply with the requirements of an information notice under regulation 29;
(o) make a statement which that person knows to be false or misleading in a material particular, or recklessly to make a statement which is false or misleading in a material particular, where the statement is made—

(i) in purported compliance with a requirement to furnish any information imposed by or under any provision of these Regulations; or
(ii) for the purpose of obtaining an authorisation issued under these Regulations to that or any other person, or the variation, transfer or surrender of an authorisation;

(p) intentionally to make a false entry in any record required to be kept as a condition of an authorisation;
(q) with intent to deceive, forge or use a document issued or authorised to be issued under the condition of an authorisation or required for any purpose under a condition of such a permit or to make or have in that person’s possession a document so closely resembling any such document so as to be likely to deceive; or
(r) cause or permit pollution of the water environment.

(2) A person guilty of an offence under paragraph (1) shall be liable—

(a) on summary conviction, to a fine not exceeding £20,000 or to imprisonment for a term not exceeding six months, or to both and in the case of a continuing offence, to a further fine not exceeding £[50][100][200] for every day during which the offence is continued after conviction;
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding 5 years, or to both, and in the case of a continuing offence to a fine for every day during which the offence is continued after conviction.

(3) Where an offence under these Regulations committed by a body corporate or a partnership is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary of other similar officer of the body corporate, or a person who was purporting to act in any such capacity (or, in the case of a partnership, a partner or a person who was purporting to act as such), that person as well as the body corporate or the partnership, as the case may be, shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(4) Where the affairs of a body corporate are managed by its members, paragraph (3) shall apply in relation to the acts or defaults of a member in connection with the functions of management of that member as if that member were a director of the body corporate.

(5) Where the commission by any person of an offence under this regulation is due to the act or default of some other person, that other person may be charged with and convicted of the offence by virtue of this paragraph whether or not proceedings for the offence are taken against the first-mentioned person.

Admissibility of evidence

36. – (1) Where—

(a) by virtue of a condition of a licence, an entry is required to be made in any record as to the observance of any condition of a licence; and
(b) the entry has not been made,

that fact shall be admissible as evidence that that condition has not been observed.

(2) Information provided or obtained pursuant to or by virtue of a condition of an authorisation including information so provided or obtained, or recorded, by means of any apparatus, shall be admissible in evidence in any proceedings, whether against the person subject to the condition, or any other person.

(3) For the purposes of paragraph (2), apparatus shall be presumed in any proceedings to register or record accurately, unless the contrary is shown, or the authorisation otherwise provides.

Defence to principal offences in respect of authorised activities

37.  A person shall not be guilty of an offence under regulation 35 in respect of the entry of any substance into the water environment or any discharge if—

(a) the entry occurs or the discharge is made under and in accordance with, or as a result of any act or omission under and in accordance with—

(i) an authorisation for a prescribed process designated for central control granted under Part I of the Environmental Protection Act 1990(a);
(ii) a permit granted under the Pollution Prevention and Control (Scotland) Regulations(a); or
(iii) a waste management or disposal licence, under the Waste Management Licensing Regulations 1994(b);

(b) the provisions of Article 4(6) of the Directive apply.

(a) 1990 c.43.
(b) 2000, S.S.I. No. 323.
(c) S.I. 1994/1056 amended by S.I. 1994/1137, 1995/288, 1950, 1996/593, 634, 916, 972, 973, 1279; 1997, 351, 2203; 1998/606, 2746; SSI 2000/323 and 2003/170, 171 and 593.

Power of court to order cause of offence to be remedied

38. – (1) Where a person is convicted of an offence under regulation 35(1)(a), (b), (c), (d), (e), (f), or (g), in respect of any matters which appear to the court to be matters which it is in the power of the person to remedy, the court may, in addition to, or instead of imposing any punishment, order that person, within such time as may be fixed by the order of the court, to take such steps as may be specified in that order for remedying those matters.

(2) The time fixed by an order of the court under paragraph (1) may be extended or further extended by a further order of the court on an application made before the end of the time as originally fixed or extended under this paragraph, as the case may be.

(3) Where a person is ordered under paragraph (1) to remedy any matters, that person shall not be liable under regulation 35, in respect of those matters in so far as they continue during the time fixed by the order of the court or any further time allowed under paragraph (2).

PART VII
Appeals

Appeals to the Scottish Ministers

39. – (1) Subject to paragraph (3), the following persons namely—

(a) a person who has been refused the grant of an authorisation under regulation 8(2);
(b) a person who has been granted a type of authorisation under regulation 9, 10, or 11 which is different from the type of authorisation which that person believes ought to have been granted;
(c) a person who is aggrieved by the conditions attached to that person’s licence following an application under regulation 7 or by a variation notice served under regulation 18;
(d) a person who has been refused the grant of an authorisation under regulation 12(5);
(e) a person who has been refused the variation of an authorisation on request under regulation 18;
(f) a person whose application under regulation 19 for SEPA to effect the transfer of an authorisation has been refused; or who is aggrieved by the conditions attached to that person’s authorisation to take account of such transfer;
(g) a person whose application to surrender an authorisation has been refused or who is aggrieved by the conditions attached to that authorisation in order to take account of the surrender;
(h) a person appealing against a determination under regulation 32(6),

may appeal against the decision of SEPA to the Scottish Ministers.

(2) Subject to paragraph (3), a person on whom a variation notice is served, other than following a request under regulation 18, or on whom a revocation notice, an enforcement notice, a suspension notice or a works notice is served may appeal against the notice to the Scottish Ministers.

(3) On determining an appeal against a decision of SEPA under paragraph (1), the Scottish Ministers may—

(a) affirm the decision;
(b) where the decision was a refusal to—

(i) grant an authorisation; or
(ii) grant a type of authorisation; or
(iii) vary the conditions of a licence,

direct SEPA to grant the authorisation, the type of authorisation or vary the conditions of the licence, as the case may be;

(c) where the decision was as to the conditions attached to a licence, to quash all or any of the conditions of the licence;
(d) where the decision was a refusal to effect the transfer of, or accept the surrender of, an authorisation, direct SEPA to effect the transfer or accept the surrender, as the case may be,

and where they exercise any of the powers in subparagraph (b) or (c), the Scottish Ministers may give directions as to the conditions to be attached to the licence.

(4) On the determination of an appeal pursuant to paragraph (2), the Scottish Ministers may either quash or affirm the variation notice and, if affirming it, may do so either in its original form or with such modifications as may in the circumstances be thought fit.

(5) Where an appeal is brought under this regulation against a revocation notice, the revocation shall not take effect until the expiry of the period of appeal following final determination or until withdrawal of the appeal.

(6) Where—

(a) an appeal is brought pursuant to paragraph (1)(c), (d), (e) or (f) in relation to the conditions attached to a licence, the bringing of the appeal shall not have the effect of suspending the operation of the conditions; and
(b) an appeal is brought pursuant to paragraph (2) against a variation notice, an enforcement notice, a works notice or a suspension notice, the bringing of the appeal shall not have the effect of suspending the operation of the notice.

(7) Regulation 11 shall apply where the Scottish Ministers, in exercising any of the powers in paragraph (3)(b) or (c) or (4), give directions as to the conditions to be attached to a licence as they would apply to SEPA when determining the conditions of the licence.

(8) Schedule 7 shall have effect in relation to the making and determination of appeals by the Scottish Ministers under this regulation.

(9) So far as relating to appeals to the Scottish Ministers, this regulation and Schedule 7 are subject to section 114 of the Environment Act 1995 (delegation of reference of appeals).

PART VIII
General

Application to the Crown

40. – (1) Subject to the provisions of this regulation, these Regulations bind the Crown.

(2) No contravention by the Crown of any provision of these Regulations shall make the Crown criminally liable under regulation 35 and no proceedings may be taken against the Crown under regulation 35 but the Court of Session may, on an application by SEPA, declare unlawful any act or omission of the Crown which constitutes such a contravention.

(3) Notwithstanding anything in paragraph (2), the provisions of these Regulations shall apply to persons in the public service of the Crown as they apply to other persons.

(4) If a certification has been or is issued by the Secretary of State to the effect that it appears to the Secretary of State, as respects any premises held or used by or on behalf of the Crown and any powers of entry exercisable under these Regulations (as are or may be specified in that certification) in relation to functions conferred or imposed by these Regulations, that it is requisite or expedient that, in the interests of national security, those powers of entry should not be exercisable in relation to such premises, those powers shall not be exercisable in relation to those premises.

Notices

41. – (1) Any notice served or given under these Regulations by the Scottish Ministers or SEPA shall be in writing.

(2) Any such notice may be served on or given to a person by leaving it at that person’s proper address or by sending it by post to that person at that address.

(3) Any such notice may—

(a) in the case of a body corporate, be served on the secretary or clerk of that body;
(b) in the case of a partnership, be served on or given to a partner or person having the control or management of the partnership business.

(4) For the purpose of this regulation and of paragraph 4 of Schedule 1 to the Scotland Act (Transitory and Transitional Provisions) (Publication and Interpretation etc Acts of the Scottish Parliament) Order 1999(a) in its application to this regulation, the proper address of any person on or to whom any such notice is to be served or given shall be the last known address of that person, except that—

(a) in the case of a body corporate or their secretary or clerk, it shall be the address of the registered or principal office of that body;
(b) in the case of a partnership or person having the control or management of the partnership business, it shall be the principal office of the partnership,

and for the purposes of this paragraph the principal office of a company registered outside of the United Kingdom or of a partnership carrying on business outside the United Kingdom shall be their principal office within the United Kingdom.

(a) S.I. 1999/1379.

(5) If the person to be served with or given any such notice has specified an address in the United Kingdom other than the proper address of that person within the meaning of paragraph (4) as the one at which that person or someone on behalf of that person will accept notices of the same description as that notice, that address shall be treated for the purposes of this regulation and the Scotland Act (Transitory and Transitional Provisions)(Publication and Interpretation etc Acts of the Scottish Parliament) Order 1999 as the proper address of that person.

A member of the Scottish Executive
St Andrew’s House,
Edinburgh

2004

SCHEDULE 1 Regulation 7
Charging Scheme

1.  In the case of an authorisation under these Regulations, SEPA may require the payment to it of such charges as it may from time to time provide for in a charging scheme in accordance with this Schedule.

2.  Charges may be made in respect of:

(a) the grant, imposition, or variation of an authorisation under regulations 9 to 11 or any application for, or for variation of, such an authorisation;
(b) the subsistence of an authorisation;
(c) the transfer (where permitted) of an authorisation to another person, or any application for such a transfer, under regulation 19;
(d) the surrender (where permitted) of an authorisation, or any application for such a surrender, under regulation 20;

3.  A charging scheme may impose:

(a) a single charge in respect of the whole of any authorisation;
(b) separate charges in respect of different parts of any such authorisation;
(c) both such a single charge and such separate charges.

4.  A charging scheme may, as respects authorisations, provide for different charges to be payable according to:

(a) the description of the authorisation in question;
(b) the controlled activity in question;
(c) the scale on which the controlled activity is carried on;
(d) the description or amount of any substance to which the controlled activity in question relates;
(e) the number of different controlled activities carried on by the same person.

5. SEPA shall secure that any charging scheme:

(a) has regard to the principle of recovery of costs, including environmental and resource costs, having regard to the polluter pays principle;
(b) provides an incentive for users to use water resources efficiently; and
(c) ensures an adequate contribution from water users of the different water uses disaggregated into appropriate categories, including at least:

(i) industry;
(ii) household; and
(iii) agriculture.

6.  When making a charging scheme SEPA may have regard to the social, environmental and economic effects of cost recovery and the geographical and climatic conditions of the areas affected by the carrying on of controlled activities.

7.  A charging scheme:

(a) shall specify, in relation to any charge prescribed by the scheme, the description of the person who is liable to pay the charge; and
(b) may provide that it shall be a condition of an authorisation that any charge prescribed is paid in accordance with the scheme.

8.  In making a charging scheme SEPA shall secure that the amounts recovered by way of charges prescribed by the charging scheme are the amounts which, taking one year with another need to be recovered by it to meet the costs and expenses which it incurs in carrying out, or having others carry out, its functions under the Act, and these Regulations.

9.  Without prejudice to paragraph 6(b), if it appears to SEPA that any charges due and payable to it in respect of an authorisation have not been paid, it may suspend or revoke the authorisation to the extent that it authorises the carrying on of a controlled activity.

10.  A charging scheme may:

(a)make different provision for different cases, including different provision in relation to different persons, circumstances or localities;
(b) provide for the times at which and the manner in which, the charges prescribed by the scheme are to be paid;
(c) revoke or amend any previous charging scheme;
(d) contain supplemental, incidental, consequential or transitional provision for the purposes of the scheme.

11.  SEPA shall not make a charging scheme unless the provisions of the scheme have been approved by the Scottish Ministers.

12. The Scottish Ministers shall, when approving a charging scheme, take account of the principle of recovery of the costs of water services, including environmental and resource costs, having regard to the economic analysis carried out in accordance with Annex III of the Directive, and in accordance with the polluter pays principle.

13.  Before submitting a proposed charging scheme to the Scottish Ministers for their approval under paragraph 11, SEPA 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 its proposals may be made to the Scottish Ministers.

14.  Where any proposed charging scheme has been submitted to the Scottish Ministers for approval under paragraph 11, the Scottish Ministers 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 them and not withdrawn; and
(b) have regard to the matters specified in this Schedule.

15.  It shall be the duty of SEPA to take such steps as it considers appropriate for bringing the provisions of the charging scheme made by it which is for the time being in force to the attention of persons likely to be affected by them.

SCHEDULE 2 Regulation 10(1)
General Binding Rules