'SCHEDULE (Hansard, 11 July 1995)

HL Deb 11 July 1995 vol 565 cc1624-30 1624

§ Delegation of appellate functions of the Secretary of State Section

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§ Interpretation

§ 1. In this Schedule— appointed person" means a person appointed under section 96(1) (a) of this Act; and appointment", in the case of any appointed person, means appointment under section 96(1) (a) of this Act.

§ Appointments

§ 2. An appointment under section 96(1) (a) of this Act must be in writing and—

(a) may relate to any particular appeal, matters or questions specified in the appointment or to appeals, matters or questions of a description so specified;
(b) may provide for any function to which it relates to be exercisable by the appointed person either unconditionally or subject to the fulfilment of such conditions as may be specified in the appointment; and
(c) may, by notice in writing given to the appointed person, be revoked at any time by the Secretary of State in respect of any appeal, matter or question which has not been determined by the appointed person before that time.

§ Powers of appointed person

§ 3. Subject to the provisions of this Schedule, an appointed person shall, in relation to any appeal, matter or question to which his appointment relates, have the same powers and duties as the Secretary of State, other than—

(a) any function of making regulations;
(b) any function of holding an inquiry or other hearing or of causing an inquiry or other hearing to be held; or
(c) any function of appointing a person for the purpose—

(i) of enabling persons to appear before and be heard by the person so appointed; or
(ii) of referring any question or matter to that person.

§ Holding of local inquiries and other hearings by appointed Persons

§ 4.—(1) If either of the parties to an appeal, matter or question expresses a wish to appear before and be heard by the appointed person, the appointed person shall give both of them an opportunity of appearing and being heard.

§ (2) Whether or not a party to an appeal, matter or question has asked for an opportunity to appear and be heard, the appointed person—

(a) may hold a local inquiry or other hearing in connection with the appeal, matter or question, and
(b) shall, if the Secretary of State so directs, hold a local inquiry in connection with the appeal, matter or question,

but this sub-paragraph is subject to sub-paragraph (3) below.

§ (3) No local inquiry shall be held by virtue of this Schedule in connection with an appeal under—

(a) section 42B(5) of the Control of Pollution Act 1974,
(b) section 22(5), 66(5) or 78LB(3) of the Environmental Protection Act 1990, or
(c) section 191B(5) of the Water Resources Act 1991,

(appeals against decisions that information is not commercially confidential), or any matter involved in such an appeal, and any hearing held by virtue of this Schedule in connection with any such appeal or matter must be held in private.

§ (4) Where an appointed person holds a local inquiry or other hearing by virtue of this Schedule, an assessor may be appointed by the Secretary of State to sit with the appointed 1626 person at the inquiry or hearing and advise him on any matters arising, notwithstanding that the appointed person is to determine the appeal, matter or question.

§ (5) Subject to paragraph 5 below, the costs of a local inquiry held under this Schedule shall be defrayed by the Secretary of State.

§ Local inquiries under this Schedule: evidence and costs

§ 5.—(1) In relation to England and Wales, subsections (2) to (5) of section 250 of the Local Government Act 1972 (local inquiries: evidence and costs) shall apply to local inquiries or other hearings held under this Schedule by an appointed person as they apply to inquiries caused to be held under that section by a Minister, but with the following modifications, that is to say—

(a) with the substitution in subsection (2) (evidence) for the reference to the person appointed to hold the inquiry of a reference to the appointed person;
(b) with the substitution in subsection (4) (recovery of costs of holding the inquiry) for the references to the Minister causing the inquiry to be held of references to the Secretary of State;
(c) taking the reference in that subsection to a local authority as including the Agency; and
(d) with the substitution in subsection (5) (orders as to the costs of the parties) for the reference to the Minister causing the inquiry to be held of a reference to the appointed person or the Secretary of State.

§ (2) In relation to Scotland, subsections (3) to (8) of section 210 of the Local Government (Scotland) Act 1973 (which relate to the costs of and holding of local inquiries) shall apply to local inquiries or other hearings held under this Schedule as they apply to inquiries held under that section, but with the following modifications, that is to say—

(a) with the substitution in subsection (3) (notice of inquiry) for the reference to the person appointed to hold the inquiry of a reference to the appointed person;
(b) with the substitution in subsection (4) (evidence) for the reference to the person appointed to hold the inquiry and, in paragraph (b), the reference to the person holding the inquiry of references to the appointed person;
(c) with the substitution in subsection (6) (expenses of witnesses etc.) for the references to the Minister causing the inquiry to he held of a reference to the appointed person or the Secretary of State;
(d) with the substitution in subsection (7) (expenses) for the references to the Minister of references to the appointed person or the Secretary of State;
(e) with the substitution in subsection (7A) (recovery of entire administrative expense)—

(i) for the first reference to the Minister of a reference to the appointed person or the Secretary of State;
(ii) in paragraph (a), for the reference to the Minister of a reference to the Secretary of State; and
(iii) in paragraph (h), for the reference to the Minister holding the inquiry of a reference to the Secretary of State;

(f) with the substitution in subsection (7B) (power to prescribe daily amount)—

(i) for the first reference to the Minister of a reference to the Secretary of State;
(ii) in paragraphs (a) and (c). for the references to the person appointed to hold the inquiry of references to the appointed person: and
(iii) in paragraph (d), for the reference to the Minister of a reference to the appointed person or the Secretary of State; and

(g) with the substitution in subsection (8) (certification of expenses) for the reference to the Minister, the reference to him and the reference to the Crown of references to the appointed person or the Secretary of State.

§ Revocation of appointments and making of new

Appointments

§ 6.—(1) Where under paragraph 2(c) above the appointment of the appointed person is revoked in respect of any appeal, matter or question, the Secretary of State shall, unless he proposes to determine the appeal, matter or question himself, appoint another person under section 96(1) (a) of this Act to determine the appeal, matter or question instead.

§ (2) Where such a new appointment is made, the consideration of the appeal, matter or question, or any hearing in connection with it, shall be begun afresh.

§ (3) Nothing in sub-paragraph (2) above shall require any person to be given an opportunity of making fresh representations or modifying or withdrawing any representations already made.

§ Certain acts and omissions of appointed person to be

treated as those of the Secretary of State

§ 7.—(1) Anything done or omitted to be done by an appointed person in, or in connection with, the exercise or purported exercise of any function to which the appointment relates shall be treated for all purposes as done or omitted to be done by the Secretary of State in his capacity as such.

§ (2) Sub-paragraph (1) above shall not apply—

(a) for the purposes of so much of any contract made between the Secretary of State and the appointed person as relates to the exercise of the function; or
(b) for the purposes of any criminal proceedings brought in respect of anything done or omitted to be done as mentioned in that sub-paragraph.'.

§ 235 Schedule 17, page 195, line 25, at end insert:

§ 'Part I

§ Enactments relating to England and Wales'.

§ 236 Page 197, line 36, at end insert:

§ 'Part II

§ Enactments relating to Scotland

§ The Sewerage (Scotland) Act 1968

§ For section 55 of the Sewerage (Scotland) Act 1968 (Crown application) there shall be substituted—

§ "Application of Act to Crown.

§ 55.—(1) Subject to the provisions of this section, this Act shall bind the Crown.

§ (2) No contravention by the Crown of any provision made by or under this Act shall make the Crown criminally liable; but the Court of Session may, on the application of a sewerage authority, declare unlawful any act or omission of the Crown which constitutes such a contravention.

§ (3) Notwithstanding anything in subsection (2) above, any provision made by or under this Act shall apply to persons in the public service of the Crown as it applies to other persons.

§ (4) If the Secretary of State certifies that it appears to him, as respects any Crown premises and any powers of entry exercisable in relation to them specified in the certificate, that it is requisite or expedient that, in the interests of national security, the powers should not be exercisable in relation to those premises, those powers shall not be exercisable in relation to those premises.

§ (5) Nothing in this section shall be taken as in any way affecting Her Majesty in her private capacity.

§ (6) In this section "Crown premises" means premises held by or on behalf of the Crown.".'.

§ 237 Page 198, line 9, at end insert:

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§ 'The Water (Scotland) Act 1980

§ . After section 110 of the Water (Scotland) Act 1980 there shall be inserted—

§ "Application of Act to Crown.

§ 110A.—(1) Subject to the provisions of this section, this Act shall bind the Crown.

§ (2) No contravention by the Crown of any provision made by or under this Act shall make the Crown criminally liable; but the Court of Session may, on the application of a water authority, declare unlawful any act or omission of the Crown which constitutes such a contravention.

§ (3) Notwithstanding anything in subsection (2) above, any provision made by or under this Act shall apply to persons in the public service of the Crown as it applies to other persons.

§ (5) Nothing in this section shall be taken as in any way affecting Her Majesty in her private capacity.

§ (6) Subject to subsections (4) and (5) above, the powers conferred by sections 16 to 18 above shall be exercisable in relation to land in which there is a Crown interest only with the consent of the appropriate authority.

§ (7) In this section— the appropriate authority" has the same meaning as it has in section 253(7) of the Town and Country Planning (Scotland) Act 1972; Crown interest" means an interest belonging to Her Majesty in right of the Crown, or belonging to a government department or held in trust for Her Majesty for the purposes of a government department; Crown premises" means premises held by or on behalf of the Crown.

§ (8) The provisions of subsection (7) of section 253 of the Town and Country Planning (Scotland) Act 1972 (questions relating to Crown application) as to the determination of questions shall apply for the purposes of this section.".

§ The Local Government etc. (Scotland) Act 1994

§ After section 125 of the Local Government etc. (Scotland) Act 1994 there shall be inserted—

§ "Application of Part II to Crown.

§ 125A.—(1) Subject to the provisions of this section, this Part of this Act shall bind the Crown.

§ (2) No contravention by the Crown of any provision made by or under this Part of this Act shall make the Crown criminally liable; but the Court of Session may, on the application of a new water and sewerage authority, declare unlawful any act or omission of the Crown which constitutes such a contravention.

§ (3) Notwithstanding anything in subsection (2) above, any provision made by or under this Part of this Act shall apply to persons in the public service of the Crown as it applies to other persons.

§ (4) Nothing in this section shall be taken as in any way affecting Her Majesty in her private capacity.

§ (5) Subject to subsection (4) above, the powers conferred by section 99 above shall be exercisable in relation to land in which there is a Crown interest only with the consent of the appropriate authority.

§ (6) In this section— 1629 the appropriate authority" has the same meaning as it has in section 253(7) of the Town and Country Planning (Scotland) Act 1972; Crown interest" means an interest belonging to Her Majesty in right of the Crown, or belonging to a government department or held in trust for Her Majesty for the purposes of a government department; Crown premises" means premises held by or on behalf of the Crown.

§ (7) The provisions of subsection (7) of section 253 of the Town and Country Planning (Scotland) Act 1972 (questions relating to Crown application) as to the determination of questions shall apply for the purposes of this section.".'.

§ 238 Schedule 18, page 199, line 31, at end insert: '() for the word "them" in each place where it occurs there shall be substituted the word "it";'.

§ 239 Page 200, line 19, at end insert:

§ 'The Public Records Act 1958

§ . In the First Schedule to the Public Records Act 1958 (definition of public records) in Part II of the Table at the end of paragraph 3 (organisations whose records are public records) there shall be inserted at the appropriate place the entry— The Environment Agency.".'.

§ 240 Page 200, line 21, leave out '52(3)' and insert '7(8)'.

§ 241 Page 200, line 21, after '1958' insert '(definitions etc. for the purposes of section 7) in paragraph (i) of the definition of "statutory water undertakers" for the words "National Rivers Authority" there shall be substituted the words "Environment Agency".

§ (2) In section 52(3) of that Act'.

§ 242 Page 202, line 50, at end insert:

§ 'The Prevention of Oil Pollution Act 1971

§ .—(1) The Prevention of Oil Pollution Act 1971 shall be amended in accordance with the following provisions of this paragraph.

§ (2) After section 11 (duty to report discharge of oil into waters of harbours) there shall be inserted—

§ "Certain provisions not to apply where a discharge or

escape is authorised under Part I of the Environmental

Protection Act 1990.

§ 11A.—(1) The provisions of sections 2(1) and (2A), 3(1) and 11(1) of this Act shall not apply to any discharge which is made under, and the provisions of section 11(1) of this Act shall not apply to any escape which is authorised by, an authorisation granted under Part I of the Environmental Protection 1990.

§ (2) This section does not extend to Northern Ireland."

§ (3) In section 25(1) (power to extend certain provisions of the Act to the Isle of Man etc.), after the words "other than section 3" there shall be inserted the word ", 11A".

§ The Town and Country Planning (Scotland) Act 1972

§ In Schedule 7 to the Town and Country Planning (Scotland) Act 1972 (determination of certain appeals by persons appointed by the Secretary of State), in paragraph 2, after sub-paragraph (f) there shall be inserted— (g) in relation to appeals under paragraphs 6(11) and (12) and 11(1) of Schedule (Review of old mineral planning permissions) and paragraph 9(1) of Schedule (Periodic review of mineral planning permissions)to the Environment Act 1995, paragraph 6 of Schedule 10A to this Act.".'.

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§ 243 Page 206, line 27, at end insert: In section 62(2) (a) of that Act (exceptions to restrictions on the operation of loudspeakers in streets), as it has effect in relation to England and Wales, for the words "National Rivers Authority" there shall be substituted the words "Environment Agency".'.

Earl Ferrers
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 210 to 243 en bloc.

§ Moved, That the House do agree with the Commons in their Amendments Nos. 210 to 243.—(Earl Ferrers.)

§ On Question, Motion agreed to.