HC Deb 04 April 1989 vol 150 cc44-50

1. The Control of Pollution Act 1974 as it applies to Scotland is amended in accordance with the provisions of this Schedule.

2. In subsection (4) of section 4 (meaning of "land"), for the words "in a stream" there shall be substituted the words "in controlled waters".

3. In subsection (9) of section 11, for the words "relevant waters" there shall be substituted the words "controlled waters".

4. For sections 31 to 42 there shall be substituted the following sections—

General provisions

Waters to which Part II applies

30A.—(1) This part applies to any waters (in this Part referred to as 'controlled waters') of any of the following classes—

  1. (a) relevant territorial waters, that is to say, subject to subsection (5) below, the waters which extend seaward for three miles from the baselines from which the breadth of the territorial sea adjacent to Scotland is measured;
  2. (b) coastal waters, that is to say, any waters which are within the area which extends landward from those baselines as far as the limit of the highest tide or, in the case of the waters of any relevant river or watercourse, as far as the fresh-water limit of the river or watercourse, together with the waters of any enclosed dock which adjoins waters within that area;
  3. (c) inland waters, that is to say, the waters of any relevant loch or pond or of so much of any relevant river or watercourse as is above the fresh-water limit:
  4. (d) ground waters, that is to say, any waters contained in underground strata, or in—
    1. (i) a well, borehole or similar work sunk into underground strata, including any adit or passage constructed in connection with the well, borehole or work for facilitating the collection of water in the well, borehole or work; or
    2. (ii) any excavation into underground strata where the level of water in the excavation depends wholly or mainly on water entering it from the strata.

(2) The Secretary of State—

  1. (a) shall deposit maps with each river purification authority showing what appear to him to be the fresh-water limits of every relevant river or watercourse in the area of that authority; and
  2. (b) may from time to time, if he considers it appropriate to do so be reason of any change of what appears to him to be the fresh-water limit of any river or watercourse, deposit a map showing a revised limit for that river or watercourse;
and in subsection (1) above 'fresh-water limit', in relation to any river or watercourse, means the place for the time being shown as the fresh-water limit of that river or watercourse in the latest map deposited for that river or watercourse under this subsection.

(3) It shall be the duty of each river purification authority to keep any maps deposited with it under subsection (2) above available, at all reasonable times, for inspection by the public free of charge.

(4) in this section—

(5) The Secretary of State may by order provide—

  1. (a) that any area of the territorial sea adjacent to Scotland is to he treated as if it were an area of relevant territorial waters for the purposes of this Part;
  2. (b) that any loch or pond which does not discharge into a relevant river or watercourse or into a relevant loch or pond is to be treated for those purposes as a relevant loch or pond.

(6) The power of the Secretary of State to make an order under subsection (5) above shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament; and such an order may—

  1. (a) contain such supplemental, consequential and transitional provision as the Secretary of State considers appropriate; and
  2. (b) for the purposes of any provision made by virtue of paragraph (a) above, make different provision for different cases, including different provision in relation to different persons, circumstance or localities.

Classification of quality of waters

30B.—(1) The Secretary of State may, in relation to any description of controlled waters (being a description applying to some or all of the waters of a particular class or of two or more different classes), by regulations prescribe a system of classifying the quality of those waters according to criteria specified in the regulations.

(2) The criteria specified in regulations under this section in relation to any classification shall consist of one or more of the following, that is to say—

  1. (a) general requirements as to the purposes for which the waters to which the classification is applied are to be suitable;
  2. (b) specific requirements as to the substances that are to be present in or absent from the water and as to the concentrations of substances which are or are required to be present in the water;
  3. (c) specific requirements as to other characteristics of those waters;
and for the purposes of any such classification regulations under this section may provide that the question whether prescribed requirements are satisfied may be determined by reference to such samples as may be prescribed.

Water quality objectives

30C.—(1) For the purpose of maintaining and improving the quality of controlled waters the Secretary of State may, by serving a notice on a river purification authority specifying—

  1. (a) one or more of the classifications for the time being prescribed under section 30B above; and
  2. (b) in relation to each specified classification, a date, establish the water quality objectives for any waters within the area of that authority which are, or are included in, waters of a description prescribed for the purposes of that section.

(2) The water quality objectives for any waters to which a notice under this section relates shall be the satisfaction by those waters, on and at all times after each date specified in the notice, of the requirements which at the time of the notice were the requirements for the classification in relation to which that date is so specified.

(3) Where the Secretary of State has established water quality objectives under this section for any waters he may review objectives for those waters if—

  1. (a) five years or more have elapsed since the service of the last notice under subsection (1) or (6) of this section to he served in respect of those waters; or
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  2. (b) the river purification authority on which that notice has been served, after consultation with such persons as it considers appropriate, requests a review;
and the Secretary of State shall not exercise his power to establish objectives for any waters by varying the existing objectives for those waters except in consequence of such a review.

(4) Where the Secretary of State proposes to exercise his power under this section to establish or vary the objectives for any waters in the area of a river purification authority he shall—

  1. (a) give notice to that authority setting out his proposal and specifying the period (not being less than three months from the date of publication of the notice) within which representations with respect to the proposal may be made; and
  2. (b) consider any representations which are duly made; and if he decides, after considering any such representations, to exercise his power to establish or vary those objectives, he may do so either in accordance with the proposal contained in the notice or in accordance with that proposal as modified in such manner as he considers appropriate.

(5) A notice under subsection (4) above shall be given—

  1. (a) by publishing the notice in such manner as the Secretary of State considers appropriate for bringing it to the attention of persons likely to he affected by it; and
  2. (b) by serving a copy of the notice on the authority.

(6) If, on a review under this section or in consequence of any representations made following such a review for the purposes of subsection (4) above, the Secretary of State decides that the water quality objectives for any waters in the area of a river purification authority should remain unchanged, he shall serve notice of that decision on that authority.

General duties to achieve and maintain objectives etc.

30D.—(1) It shall be the duty of the Secretary of State and of each river purification authority to exercise the powers conferred on him or it by or under the following provisions of this Part or the provisions of the Rivers (Prevention of Pollution) (Scotland) Acts 1951 and 1965 in such manner as ensures, so far as it is practicable by the exercise of those powers to do so, that the water quality objectives specified for any waters in a notice under section 30C above are achieved at all times.

(2) It shall be the duty of each river purification authority, for the purposes of the carrying out of its functions under the following provisions of this Part or the provisions of the Rivers (Prevention of Pollution) (Scotland) Acts 1951 and 1965, to monitor the extent of pollution in controlled waters.

Control of entry of polluting matter and effluents into water

Control of pollution of rivers and coastal waters etc.

31.—(1) Subject to subsections (2) and (3) of this section, a person shall be guilty of an offence if he causes or knowingly permits—

  1. (a) any poisonous, noxious or polluting matter to enter controlled waters; or
  2. (b) any matter to enter any inland waters so as to tend (either directly or in combination with other matter which he or another person causes or permits to enter those waters) to impede the proper flow of the waters in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or of the consequences of such pollution; or
  3. (c) any solid waste matter to enter controlled waters

(2) A person shall not be guilty of an offence by virtue of the preceding subsection if—

  1. (a) the entry in question is authorised by, or is a consequence of an act authorised by, a disposal licence or a consent given by the Secretary of State or a river purification authority in pursuance of this Act and the entry or act is in accordance with the conditions, if any, to which the licence or consent is subject; or
  2. (b) the entry in question is authorised by, or is a consequence of an act authorised by—
    1. (i) section 33 of the Water (Scotland) Act 1980 (which among other things relates to 47 temporary discharges by water authorities in connection with the construction of works) or any prescribed enactment, or
    2. (ii) any provisions of a local Act or statutory order which expressly confers powers to discharge effluent into water, or
    3. (iii) any licence granted under Part II of the Food and Environment Protection Act 1985; or
  3. (c) the entry in question is caused or permitted in an emergency in order to avoid danger to the public and—
    1. (i) he takes all such steps as are reasonably practicable in the circumstances for minimising the extent of the entry in question and of its polluting effects; and
    2. (ii) as soon as reasonably practicable after the entry occurs, particulars of the entry are furnished to the river purification authority in whose area it occurs; or
  4. (d) the matter in question is trade or sewage effluent discharged as mentioned in paragraph (a) of subsection (1) of section 32 or matter discharged as mentioned in paragraph (b) or (c) of that subsection and the entry in question is not from a vessel;
and a person shall not be guilty of an offence by virtue of the preceding subsection by reason only of his permitting water from an abandoned mine to enter controlled waters.

(3) A person shall not by virtue of paragraph (b) or (c) of subsection (1) of this section be guilty of an offence by reason of his depositing the solid refuse of a mine or quarry on any land so that it falls or is carried into inland waters if—

  1. (a) he deposits the refuse on the land with the consent (which shall not be unreasonably withheld) of the river purification authority in whose area the land is situated; and
  2. (b) no other site for the deposit is reasonably practicable; and
  3. (c) he takes all reasonably practicable steps to prevent the refuse from entering those inland waters.

(4) Where it appears to the Secretary of State that, with a view to preventing poisonous, noxious or polluting matter from entering any controlled waters, it is appropriate to prohibit or restrict the carrying on in a particular area of activities which he considers are likely to result in pollution of the waters, then, subject to subsection (5) below, he may by regulations—

  1. (a) designate that area; and
  2. (b) provide that prescribed activities shall not be carried on at any place within the area except with the consent (which shall not be unreasonably withheld) of the river purification authority in whose area the place is situated and in accordance with any reasonable conditions to which the consent is subject;
  3. (c) provide that a contravention of the regulations shall be an offence and prescribe the maximum penalty for the offence; and
  4. (d) make provision for the imposition by river purification authorities of charges in respect of the consent mentioned in paragraph (b) above.

(5) It shall be the duty of the Secretary of State, before he makes any regulations under subsection (4) above—

  1. (a) to publish in the Edinburgh Gazette and in at least one newspaper circulating in the area in question a copy of the proposed regulations and a notice specifying—
    1. (i) a period of not less than twenty-eight days, beginning with the date on which the notice is first published, within which objections to the proposed regulations may be made, and
    2. (ii) the person to whom such objections may be made; and
  2. (b) to consider any objections to the proposed regulations which are made within that period and, if such an objection is so made by a prescribed person and is not withdrawn, to cause a local inquiry to be held in pursuance of section 96 of this Act with respect to the proposed regulations;
and the Secretary of State may, after considering any such objections as are mentioned in paragraph (b) of this subsection and the report of any person appointed to hold a local inquiry with respect to the proposed regulations, make the regulations either in the form in which a copy of them was published in pursuance of this subsection or in that form with such modifications as he considers appropriate.

(6) A river purification authority may by byelaws make such provision as the authority considers appropriate for prohibiting or regulating the washing or cleaning, in any controlled waters in its area, of things of a kind specified in the byelaws; and a person who contravenes any byelaws made by virtue of this subsection shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale or such smaller sum as is specified in the byelaws.

(7) A person guilty of an offence by virtue of subsection (1) of this section shall be liable—

  1. (a) on summary conviction, to imprisonment for a term not exceeding three months or a fine not exceeding the statutory maximum or both;
  2. (b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.

(8) The maximum penalty prescribed in pursuance of subsection (4) of this section shall not exceed the penalties specified in paragraphs (a) and (b) of the preceding subsection.

(9) In subsection (2) of this section—

Requirements to take precautions against pollution

31A.—(1) The Secretary of State may by regulations make provision—

  1. (a) for prohibiting a person from having custody or control of any poisonous, noxious or polluting matter unless prescribed works and prescribed precautions and other steps have been carried out or take for the purpose of preventing the matter from entering controlled waters;
  2. (b) for requiring a person who already has custody or control of, or makes use of, any such matter to carry out such works for that purpose as may be prescribed.

(2) Without prejudice to the generality of the power conferred by subsection (1) above, regulations under that subsection may—

  1. (a) confer power on the river purification authorities—
    1. (i) to determine for the purposes of the regulations the circumstances in which a person is required to carry out works or take any precautions or other steps; and
    2. (ii) by notice to that person, to impose the requirement and to specify or describe the works, precautions or other steps which that person is required to carry out or take;
  2. (b) provide for appeals to the Secretary of State against notices served by a river purification authority in pursuace of provision made by virtue of paragraph (a) above; and
  3. (c) provide that a contravention of the regulations shall be an offence the penalty for which shall be—
    1. (i) on summary conviction, imprisonment for a term not exceeding three months or to a fine not exceeding the statutory maximum or to both.
    2. (ii) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

Control of discharge of trade and sewage effluent etc. into rivers and coastal waters etc.

32.—(1) Subject to subsections (3) to (5) of this section, a person shall be guilty of an offence if he causes or knowingly permits—

  1. (a) any trade effluent or sewage effluent to be discharged—
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    1. (i) into any controlled waters, or
    2. (ii) from land in Scotland through a pipe into the sea out-side the seaward limits of controlled waters, or
    3. (iii) from a building or from plant on to or into any land or into any waters of a loch or pond which are not inland waters;
  2. or
  3. (b) any matter other than trade or sewage effluent to be discharged into controlled waters from a sewer as defined by section 59(1) of the Sewerage (Scotland) Act 1968 or from a drain as so defined; or
  4. (c) any matter other than trade or sewage effluent to be discharged into controlled waters from a drain which a roads authority is obliged or entitled to keep open by virtue of section 31 of the Roads (Scotland) Act 1984, and in respect of which the river purification authority in whose area the discharge occurs has, not later than the beginning of the period of three months ending with the date of the discharge, served on the roads authority a notice stating that this paragraph is to apply to the drain,
unless the discharge is made with the consent in pursuance of section 34 of this Act of the river purification authority in whose area the discharge occurs (or, in a case falling within paragraph (a)(ii) of this subsection, of the river purification authority whose area includes the point at which the pipe passes or first passes into or under controlled waters from the sea outside them) and is in accordance with the conditions, if any, to which the consent is subject.

(2) Where any sewage effluent is discharged as mentioned in paragraph (a) of the preceding sub section from any works or sewer vested in a local authority and the authority did not cause or knowingly permit the discharge but was bound to receive into the works or sewer, either unconditionally or subject to conditions which were observed, matter included in the discharge, the authority shall be deemed for the purposes of that subsection to have caused the discharge.

(3) The Secretary of State may—

  1. (a) by an order made before subsection (1) of, this section comes into force provide that that subsection shall not, while the order is in force, apply to discharges which are of a kind or in an area specified in the order and for which, if this Act had not been passed, consent in pursuance of the Rivers (Prevention of Pollution) (Scotland) Acts 1951 and 1965 would not have been required;
  2. (b) by order vary or revoke any order in force by virtue of the preceding paragraph;
and an order made by virtue of this subsection may require any river purification authority specified in the order to publish in a manner so specified such information about the order as is so specified.

(4) Subsection (1) of this section shall not apply to any discharge which—

  1. (a) is from a vessel; or
  2. (b) is authorised by a licence granted under Part II of the Food and Environment Protection Act 1985, and a person shall not be guilty of an offence under subsection (1) if—
    1. (i) the discharge is caused or permitted in an emergency in order to avoid danger to the public;
    2. (ii) he takes all such steps as are reasonably practicable in the circumstances for minimising the extent of the discharge and of its polluting effects; and
    3. (iii) as soon as reasonably practicable after the discharge occurs, particulars of the discharge are furnished to the river purification authority in whose area it occurs.

(5) A local authority shall not be guilty of an offence by virtue of subsection (1) of this section by reason only of the fact that a discharge from a sewer or works vested in the authority contravenes conditions of a consent relating to the discharge if—

  1. (a) the contravention is attributable to a discharge which another person caused or permitted to be made into the sewer or works; and
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  2. (b) the authority either was not bound to receive the discharge into the sewer or works or was bound to receive it there subject to conditions but the conditions were not observed; and
  3. (c) the authority could not reasonably have been expected to prevent the discharge into the sewer or works;
and a person shall not be guilty of such an offence in consequence of a discharge which he caused or permitted to be made into a sewer or works vested in local authority if the authority was bound to receive the discharge there either unconditionally or subject to conditions which were observed.

(6) In subsection (2) of I his section and the preceding subsection, "local authority" means a local authority within the meaning of the Sewerage (Scotland) Act 1968.

(7) A person who is guilty of an offence by virtue of subsection (1) of this section shall be liable—

  1. (a) on summary conviction, to imprisonment for a term not exceeding three months or a fine not exceeding the statutory maximum or both;
  2. (b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.

Control of sanitary appliances in vessels.

33.—(1) A river purification authority may by byelaws make such provision as the authority, considers appropriate for prohibiting or regulating the keeping or use, on any controlled waters in the area of the authority, of vessels of a kind specified in the byelaws which are provided with sanitary appliances; and a person who contravenes any byelaw made by virtue of this section shall be guilty of an offence.

(2) The Secretary of State may by order provide that any byelaws specified in the order which were made by virtue of section 25(1)(c) of the Rivers (Prevention of Pollution) (Scotland) Act 1951 (byelaws) shall have effect, with such modifications (if any) as are so specified, as if made by virtue of the preceding subsection.

(3) In this section "sanitary appliance" means a water closet or other prescribed appliance (except a sink, bath and a shower-bath) which is designed to permit polluting matter to pass into the water on which the vessel in question is for the time being situated.

(4) A person guilty of an offence by virtue of any of the preceding provisions of this section shall be liable on summary conviction to a fine of an amount not exceeding level 4 on the standard scale or such smaller sum as may be specified in the byelaws.