'SCHEDULE PERIODIC REVIEW OF MINERAL PLANNING PERMISSIONS (Hansard, 11 July 1995)

HL Deb 11 July 1995 vol 565 cc1613-24 1613

§ Duty to carry out periodic reviews

§ 1. The mineral planning authority shall, in accordance with the provisions of this Schedule, cause periodic reviews to be carried out of the mineral permissions relating to a mining site.

§ Interpretation

§ 2.—(1) For the purposes of this Schedule— first review date", in relation to a mining site, shall, subject to paragraph 5 below, be ascertained in accordance with paragraph 3 below; mineral permission" means any planning permission, other than a planning permission granted by a development order, for minerals development;

1614 "mineral planning authority"—

(a)as respects England and Wales, means a mineral planning authority within the meaning of the 1990 Act, and
(b)as respects Scotland, means a planning authority for the purposes of the 1972 Act;

"mining site" means—

(a)in a case where it appears to the mineral planning authority to be expedient to treat as a single site the aggregate of the land to which any two or more mineral permissions relate, the aggregate of the land to which those permissions relate; and
(b)in any other case, the land to which a mineral permission relates;

"old mining permission" has the meaning given—

(a)as respects England and Wales, by section 22(1) of the 1991 Act, and
(b)as respects Scotland, by section 49H(1) of the 1972 Act; and

"owner", in relation to any land—

(a) as respects England and Wales, means any person who—

(i)is the estate owner in respect of the fee simple, or
(ii)is entitled to a tenancy granted or extended for a term of years certain of which not less than seven years remains unexpired; and

(b) as respects Scotland, has the meaning given by paragraph 10(1) of Schedule 10A to the 1972 Act.

§ (2) In determining whether it appears to them to be expedient to treat as a single site the aggregate of the land to which two or snore mineral permissions relate a mineral planning authority shall have regard to any guidance issued for the purpose by the Secretary of State.

§ (3) Any reference (however expressed) in this Schedule to a mining site being a site to which relates—

(a)an old mining permission; or
(b)a mineral permission,

is a reference to the mining site, or some part of it, being the land to which the permission relates.

§ (4) For the purposes of this Schedule, an application made under paragraph 6 below is finally determined when—

(a)the proceedings on the application, including any proceedings on or in consequence of an application under section 288 of the 1990 Act or section 233 of the 1972 Act, have been determined, and
(b)any time for appealing under paragraph 9(1) below, or applying or further applying under paragraph 6 below, (where there is a right to do so) has expired.

§ The first review date

§ 3.—(1) Subject to sub-paragraph (7) below, in a case where the mineral permissions relating to a mining site include an old mining permission, the first review date means—

(a)the date falling fifteen years after the date upon which, pursuant to an application made under paragraph 2 of Schedule 2 to the 1991 Act or, as the case may be, paragraph 2 of Schedule 10A to the 1972 Act, the conditions to which that old mining permission is to be subject are finally determined under that Schedule; or
(b)where there are two or more old mining permissions relating to that site, and the date upon which those conditions are finally determined is not the same date for each of those permissions, the date falling fifteen years after the date upon which was made the last such final determination to be so made in respect of any of those permissions,

1615 and paragraph 10(2) of Schedule 2 to the 1991 Act or, as the case may be, paragraph 10(2) of Schedule 10A to the 1972 Act (meaning of "finally determined") shall apply for the purposes of this sub-paragraph as it applies for the purposes of section 22 of and Schedule 2 to the 1991 Act or, as the case may be, section 49H of and Schedule 10A to the 1972 Act.

§ (2) Subject to sub-paragraph (7) below, in the case of a mining site which is a dormant or Phase I or II site within the meaning of Schedule (Review of old mineral planning permissions) to this Act, the first review date means the date falling fifteen years after the date upon which, pursuant to an application made under paragraph 8 of that Schedule, there is determined under that paragraph the conditions to which the relevant planning permissions (within the meaning of that Schedule) relating to the site are to be subject.

§ (3) Subject to sub-paragraphs (4) and (7) below, in the case of a mining site—

(a)which is not a dormant or Phase I or II site within the meaning of Schedule (Review of old mineral planning permissions) to this Act; and
(b)to which no old mining permission relates,

the first review date is the date falling fifteen years after the date upon which was granted the most recent mineral permission which relates to the site.

§ (4) Where, in the case of a mining site falling within sub-paragraph (3) above, the most recent mineral permission relating to that site relates, or the most recent such permissions (whether or not granted on the same date) between them relate, to part only of the site, and in the opinion of the mineral planning authority it is expedient, for the purpose of ascertaining, under that sub-paragraph, the first review date in respect of that site, to treat that permission or those permissions as having been granted at the same time as the last of the other mineral permissions relating to the site, the first review date for that site shall be ascertained under that sub-paragraph accordingly.

§ (5) A mineral planning authority shall, in deciding whether they are of such an opinion as is mentioned in sub-paragraph (4) above, have regard to any guidance issued by the Secretary of State for the purpose.

§ (6) Subject to sub-paragraph (7) below, in the case of a mining site—

(a)to which relates a mineral permission in respect of which an order has been made under section 97 of the 1990 Act or section 42 of the 1972 Act, or
(b)in respect of which, or any part of which, an order has been made under paragraph 1 of Schedule 9 to the 1990 Act or section 49 of the 1972 Act,

the first review date shall be the date falling fifteen years after the date upon which the order took effect or, in a case where there is more than one such order, upon which the last of those orders to take effect took effect.

§ (7) In the case of a mining site for which the preceding provisions of this paragraph have effect to specify two or more different dates as the first review date, the first review date shall be the latest of those dates.

§ Service of notice of first periodic review

§ 4.—(1) The mineral planning authority shall, in connection with the first periodic review of the mineral permissions relating to a mining site, no later than 12 months before the first review date, serve notice upon each person appearing to them to be the owner of any land, or entitled to an interest in any mineral, included in that site.

§ (2) A notice required to be served under sub-paragraph (1) above shall—

(a)specify the mining site to which it relates;
(b)identify the mineral permissions relating to that site;
(c)state the first review date;
(d)state that the first review date is the date by which an application must be made for approval of the conditions to which the mineral permissions 1616 relating to the site are to be subject and explain the consequences which will occur if no such application is made by that date; and
(e)explain the right to apply for postponement of the first review date and give the date by which such an application has to be made.

§ (3) Where, in relation to any land or mineral included in a mining site, the mineral planning authority—

(a)has served notice on any person under sub-paragraph (1) above; and
(b)has received no application under paragraph 6 below from that person by the date falling eight weeks before the first review date,

the authority shall serve a written reminder on that person.

§ (4) A reminder required to be served under sub-paragraph (3) above shall—

(a)indicate that the land or mineral in question is included in a mining site;
(b)comply with the requirements of sub-paragraph (2) (a) to (d) above; and
(c)be served on the person in question on or before the date falling four weeks before the first review date.

§ (5) Sub-paragraph (1) above shall not require the mineral planning authority to serve notice under that sub-paragraph upon any person whose identity or address for service is not known to and cannot practicably, after reasonable inquiry, be ascertained by them, but in any such case the authority shall cause to be firmly affixed, to each of one or more conspicuous objects on the land or, as the case may be, on the surface of the land above the interest in question, a copy of the notice which they would (apart from the provisions of this sub-paragraph) have had to serve under that sub-paragraph on the owner of that land or interest.

§ (6) If, in a case where sub-paragraph (5) above applies, no person makes an application to the authority under paragraph 6 below in respect of the mining site which includes the land or interest in question by the date falling eight weeks before the first review date, the authority shall cause to be firmly affixed, to each of one or more conspicuous objects on the land or, as the case may be, on the surface of the land above the interest in question, a copy of the written reminder that would, in a case not falling within sub-paragraph (5) above, have been served under sub-paragraph (3) above.

§ (7) Where by sub-paragraph (5) or (6) above a copy of any notice is required to be affixed to an object on any land that copy shall—

(a) be displayed in such a way as to be easily visible and legible;
(b) be first displayed—

(i)in a case where the requirement arises under sub-paragraph (5) above, no later than 12 months before the first review date; or
(ii)in a case where the requirement arises under sub-paragraph (6) above, no later than the date falling four weeks before the first review date; and

(c) be left in position for at least the period of 21 days from the date when it is first displayed, but where the notice is, without fault or intention of the authority, removed, obscured or defaced before that period has elapsed, that requirement shall be treated as having been complied with if the authority has taken reasonable steps for protection of the notice and, if need be, its replacement.

§ (8) In sub-paragraphs (5) and (6) above, any reference to a conspicuous object on any land includes, in a case where the person serving a notice considers that there are no or insufficient such objects on the land, a reference to a post driven into or erected upon the land by the person serving the notice for the purpose of having affixed to it a copy of the notice in question.

1617

§ Application for postponement of the first review date

§ 5.—(1) Any person who is the owner of any land, or of any interest in any mineral, comprised in a mining site may, no later than the day upon which expires the period of three months from the day upon which notice was served upon him under paragraph 4 above, apply under this paragraph to the mineral planning authority for the postponement of the first review date.

§ (2) An application under this paragraph shall be in writing and shall set out—

(a)the conditions to which each mineral permission relating to the site is subject;
(b)the applicant's reasons for considering those conditions to be satisfactory; and
(c)the date which the applicant wishes to have substituted for the first review date.

§ (3) Where the mineral planning authority receive an application made under this paragraph—

(a)if they consider the conditions referred to in sub-paragraph (2) (a) above to be satisfactory they shall agree to the first review date being postponed in which event they shall determine the date to be substituted for that date;
(b)in any other case they shall refuse the application.

§ (4) When a mineral planning authority determine an application made under this paragraph, they shall notify the applicant in writing of their decision and, in a case where they have agreed to the postponement of the first review date, shall notify the applicant of the date which they have determined should be substituted for the first review date.

§ (5) Where, within the period of three months of the mineral planning authority having received an application under this paragraph, or within such extended period as may at any time be agreed upon in writing between the applicant and the authority, the authority have not given notice, under sub-paragraph (4) above, to the applicant of their decision upon the application, the authority shall be treated as having, at the end of that period or, as the case may be, that extended period—

(a)agreed to the first review date being postponed; and
(b)determined that the date referred to in sub-paragraph (2) (c) above be substituted for the first review date.

§ Application to determine the conditions to which the

mineral permissions relating to a mining site are to be

subject

§ 6.—(1) Any person who is the owner of any land, or who is entitled to an interest in a mineral, may, if that land or mineral is or forms part of a mining site, apply to the mineral planning authority to determine the conditions to which the mineral permissions relating to that site are to he subject.

§ (2) An application under this paragraph shall be in writing and shall—

(a)identify the mining site in respect of which the application is made and state that the application is made in connection with the first periodic review of the mineral permissions relating to that site;
(b)specify the land or minerals comprised in the site of which the applicant is the owner or, as the case may be, in which the applicant is entitled to an interest;
(c)identify the mineral permissions relating to the site;
(d)identify, and give an address for, each other person that the applicant knows or, after reasonable inquiry, has cause to believe to be an owner of any land, or entitled to any interest in any mineral, comprised in the site;
(e)set out the conditions to which the applicant proposes the permissions referred to in paragraph (c) above should be subject; and
(f) be accompanied by the appropriate certificate (within the meaning of sub-paragraph (3) or (4) below).

§ (3) For the purposes of sub-paragraph (2) above, as respects England and Wales the appropriate certificate is such a certificate—

(a)as would be required, under section 65 of the 1990 Act and any provision of a development order made by virtue of that section, to accompany the application if it were an application for planning permission for minerals development, but
(b)with such modifications as are required for the purposes of this paragraph,

and section 65(6) of the 1990 Act shall also have effect in relation to any certificate purporting to be the appropriate certificate.

§ (4) For the purposes of sub-paragraph (2) above, the appropriate certificate is, as respects Scotland, each of the certificates which would be required, under or by virtue of sections 23 and 24 of the 1972 Act (notice etc. of applications for planning permission), to accompany the application if it were an application for planning permission for minerals development, but with such modifications as are required for the purposes of this paragraph; and sections 23(3) and 24(5) of that Act (offences) shall have effect in relation to any certificate purporting to be the appropriate certificate.

§ (5) Where the mineral planning authority receive an application under this paragraph in relation to a mining site they shall determine the conditions to which each mineral permission relating to the site is to be subject.

§ (6) The conditions imposed by virtue of a determination under sub-paragraph (5) above—

(a)may include any conditions which may be imposed on a grant of planning permission for minerals development;
(b)may be in addition to, or in substitution for, any existing conditions to which the permission in question is subject.

§ (7) In determining that a mineral permission is to be subject to any condition relating to development for which planning permission is granted by a development order, the mineral planning authority shall have regard to any guidance issued for the purpose by the Secretary of State.

§ (8) Subject to sub-paragraph (9) below, where, within the period of three months of the mineral planning authority having received an application under this paragraph, or within such extended period as may at any time be agreed upon in writing between the applicant and the authority, the authority have not given notice to the applicant of their decision upon the application, the authority shall be treated as having at the end of that period or, as the case may be, that extended period, determined that the conditions to which any mineral permission to which the application relates is to be subject are those specified in the application as being proposed in relation to that permission; and any such permission shall, from that time, have effect subject to those conditions.

§ (9) Where a mineral planning authority, having received an application under this paragraph, are of the opinion that they are unable to determine the application unless further details are supplied to them, they shall within the period of one month from having received the application give notice to the applicant—

(a)stating that they are of such opinion; and
(b)specifying the further details which they require,

and where the authority so serve such a notice the period of three months referred to in sub-paragraph (8) above shall run not from the authority having received the application but from the time when the authority have received all the further details specified in the notice.

§ (10) Without prejudice to the generality of sub-paragraph (9) above, the further details which may be specified in a notice under that sub-paragraph include any— 1619

(a)information, plans or drawings; or
(b)evidence verifying any particulars of details supplied to the authority in respect of the application in question,

which it is reasonable for the authority to request for the purpose of enabling them to determine the application.

§ Permissions ceasing to have effect

§ 7. Where no application under paragraph 6 above in respect of a mining site has been served on the mineral planning authority by the first review date, or by such later date as may at any time be agreed upon in writing between the applicant and the authority, each mineral permission—

(a)relating to the site; and
(b)identified in the notice served in relation to the site under paragraph 4 above,

shall cease to have effect, except insofar as it imposes any restoration or aftercare condition, on the day following the first review date or, as the case may be, such later agreed date.

§ Reference of applications to the Secretary of State

§ 8.—(1) The Secretary of State may give directions requiring applications made under paragraph 6 above to any mineral planning authority to be referred to him for determination instead of being dealt with by the authority.

§ (2)A direction under sub-paragraph (1) above may relate either to a particular application or to applications of a class specified in the direction.

§ (3)Where an application is referred to the Secretary of State in accordance with a direction under sub-paragraph (1) above—

(a)subject to paragraph (b) below, paragraph 6(5) and (6) above, and paragraph 11 below so far as relating to applications under paragraph 6 above, shall apply, with any necessary modifications, to his determination of the application as they apply to the determination of applications by the mineral planning authority;
(b)before determining the application the Secretary of State must, if either the applicant or the mineral planning authority so wish, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose; and
(c)the decision of the Secretary of State on the application shall be final.

§ Appeals

§ 9.—(1) Where on an application under paragraph 6 above the mineral planning authority determine conditions that differ in any respect from the proposed conditions set out in the application, the applicant may appeal to the Secretary of State.

§ (2)An appeal under sub-paragraph (1) above must be made by giving notice of appeal to the Secretary of State, before the end of the period of six months beginning with the determination, on a form supplied by or on behalf of the Secretary of State for use for that purpose, and giving, so far as reasonably practicable, the information required by that form.

§ (3)Paragraph 6 of Schedule 2 to the 1991 Act (determination of appeals) shall, as respects England and Wales, apply to appeals under sub-paragraph (1) above as it applies to appeals under paragraph 5 of that Schedule.

§ (4)As respects England and Wales, sections 284 to 288 of the 1990 Act shall have effect as if the action mentioned in section 284(3) of that Act included any decision of the Secretary of State—

(a)on an appeal under sub-paragraph (1) above; or
(b)on an application under paragraph 6 above referred to him under paragraph 8 above.

1620

§ (5) Paragraph 6 of Schedule 10A to the 1972 Act (determination of appeals) shall, as respects Scotland, apply to appeals under sub-paragraph (1) above as it applies to appeals under paragraph 5 of that Schedule.

§ (6) As respects Scotland, sections 231 to 233 of the 1972 Act shall have effect as if the action mentioned in section 231(3) included any decision of the Secretary of State—

(a)on an appeal under sub-paragraph (1) above; or
(b)on an application under paragraph 6 above referred to him under paragraph 8 above.

§ (7) As respects Scotland, Schedule 7 to the 1972 Act shall apply to appeals under sub-paragraph (1) above.

§ Time from which conditions determined under this

Schedule are to take effect

§ 10.—(1) Where an application has been made under paragraph 6 above in respect of a mining site, each of the mineral permissions relating to the site shall, from the time when the application is finally determined, have effect subject to the conditions to which it is determined under this Schedule that that permission is to be subject.

§ (2) Sub-paragraph (1) above is without prejudice to paragraph 6(8) above.

§ Two or more applicants

§ 11.—(1) Where a mineral planning authority have received from any person a duly made application under paragraph 5 or 6 above—

(a)that person may not make any further application under the paragraph in question in respect of the same site; and
(b)if the application has been determined, whether or not in the case of an application under paragraph 6 above it has been finally determined, no other person may make an application under the paragraph in question in respect of the same site.

§ (2) Where—

(a)a mineral planning authority have received from any person in respect of a mineral site a duly made application under paragraph 5 or 6 above; and
(b)the authority receives from another person a duly made application under the paragraph in question in respect of the same site,

then for the purpose of the determination of the applications and any appeal against such a determination, this Schedule shall have effect as if the applications were a single application received by the authority on the date on which the later application was received by the authority and references to the applicant shall be read as references to either or any of the applicants.

§ Second and subsequent periodic reviews

§ 12.—(1) In this paragraph, in relation to a mining site, but subject to paragraph 5 above as applied by sub-paragraph (2) below, "review date" means—

(a)in the case of the second periodic review, the date falling fifteen years after the date upon which was finally determined an application made under paragraph 6 above in respect of the site; and
(b)in the case of subsequent periodic reviews, the date falling fifteen years after the date upon which there was last finally determined under this Schedule an application made in respect of that site under paragraph 6 above as applied by sub-paragraph (2) below.

§ (2) Paragraphs 4 to 11 above shall apply in respect of the second or any subsequent periodic review of the mineral permissions relating to a mining site as they apply to the first such periodic review, but as if—

(a)any reference in those paragraphs to the "first review date" were a reference to the review date; and
(b)the references in paragraphs 4(1) and 6(2) (a) above to the first periodic review were references to the periodic review in question.

1621

§ Compensation

§ 13.—(1) This paragraph applies where—

(a)an application made under paragraph 6 above in respect of a mining site is finally determined; and
(b)the conditions to which the mineral permissions relating to the site are to be subject, as determined under this Schedule, differ in any respect from the proposed conditions set out in the application; and
(c)the effect of the new conditions, except insofar as they are restoration or aftercare conditions, as compared with the effect of the existing conditions, except insofar as they were restoration or aftercare conditions, is to restrict working rights in respect of the site.

§ (2) For the purposes of this paragraph— the new conditions", in relation to a mining site, means the conditions, determined under this Schedule, to which the mineral permissions relating to the site are to be subject; and the existing conditions", in relation to a mining site, means the conditions to which the mineral permissions relating to the site were subject immediately prior to the final determination of the application made under paragraph 6 above in respect of that site.

§ (3) For the purposes of this paragraph, working rights are restricted in respect of a mining site if any of—

(a)the size of the area which may be used for the winning and working of minerals or the depositing of mineral waste;
(b)the depth to which operations for the winning and working of minerals may extend;
(c)the height of any deposit of mineral waste;
(d)the rate at which any particular mineral may be extracted;
(e)the rate at which any particular mineral waste may be deposited;
(f)the period at the expiry of which any winning or working of minerals or depositing of mineral waste is to cease; or
(g)the total quantity of minerals which may be extracted from, or of mineral waste which may be deposited on, the site,

is restricted or reduced in respect of the mining site in question.

§ (4) In a case to which this paragraph applies, but subject to sub-paragraph (7) below, as respects England and Wales, Parts IV and XI of the 1990 Act and, as respects Scotland, Parts VIII and XI of the 1972 Act, shall have effect as if an order made under section 97 of the 1990 Act or, as the case may be, section 42 of the 1972 Act—

(a)had been confirmed by the Secretary of State under section 98 of the 1990 Act or, as the case may be, section 42 of the 1972 Act at the time when the application in question was finally determined; and
(b)as so confirmed, had effect to modify those permissions to the extent specified in sub-paragraph (6) below.

§ (5) For the purposes of this paragraph, the order referred to in sub-paragraph (6) above is one whose only effect adverse to the interests of any person having an interest in the land or minerals comprised in the mineral site is to restrict working rights in respect of the site to the same extent as the relevant restriction.

§ (6) For the purposes of section 116 of the 1990 Act and section 167A of the 1972 Act and of any regulations made under those sections, the permissions treated as being modified by the order mentioned in sub-paragraph (4) above shall be treated as if they were planning permissions for development which neither consists of nor includes any minerals development.'.

1622

§ 223 Schedule 12, page 181, leave out lines 37 to 39 and insert: '13. For section 14 of that Act (gratings) there shall be substituted—

§ "Screens.

§ 14.—(1) This section applies in any case where—

(a)by means of any conduit or artificial channel, water is diverted from waters frequented by salmon or migratory trout; and
(b)any of the water so diverted is used for the purposes of a water or canal undertaking or for the purposes of any mill or fish farm;

and in this section "the responsible person" means the owner of the water or canal undertaking or (as the case may be) the occupier of the mill or the owner or occupier of the fish farm.

§ (2) Where this section applies, the responsible person shall, unless an exemption from the obligation is granted by the Agency, ensure (at his own cost) that there is placed and maintained at the entrance of, or within, the conduit or channel a screen which—

(a)subject to subsection (4) below, prevents the descent of the salmon or migratory trout; and
(b)in a case where any of the water diverted is used for the purposes of a fish farm, prevents the egress of farmed fish from the fish farm by way of the conduit or channel.

§ (3) Where this section applies, the responsible person shall also, unless an exemption from the obligation is granted by the Agency, ensure (at his own cost) that there is placed and maintained across any outfall of the conduit or channel a screen which—

(a)prevents salmon or migratory trout from entering the outfall; and
(b)in a case where any of the water diverted is used for the purposes of a fish farm, prevents the egress of farmed fish from the fish farm by way of the outfall.

§ (4) Where a screen is placed within any conduit or channel pursuant to subsection (2) above, the responsible person shall ensure that a continuous by-wash is provided immediately upstream of the screen, by means of which salmon or migratory trout may return by as direct a route as practicable to the waters from which they entered the conduit or channel (and accordingly nothing in subsection (2) or (3) above applies in relation to a by-wash provided for the purposes of this subsection).

§ (5) Any screen placed, or by-wash provided, in pursuance of this section shall be so constructed and located as to ensure, so far as reasonably practicable, that salmon or migratory trout are not injured or damaged by it.

§ (6) No such screen shall be so placed as to interfere with the passage of boats on any navigable canal.

§ (7) Any exemption under subsection (2) or (3) above may be granted subject to conditions.

§ (8) If any person who is required to do so by this section fails to ensure that a screen is placed or maintained, or that a by-wash is provided, in accordance with the provisions of this section, he shall be guilty of an offence.

§ (9) In any proceedings for an offence under subsection (8) above, it shall, subject to subsection (10) below, be a defence for the person charged to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence by himself or a person under his control.

§ (10) If in any case the defence provided by subsection (9) above involves the allegation that the commission of the offence was due to an act or default of another person, or to reliance on information supplied by 1623 another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless—

(a)at least seven clear days before the hearing, and
(b)where he has previously appeared before a court in connection with the alleged offence, within one month of his first such appearance,

he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession.

§ (11) Any reference in subsection (10) above to appearing before a court includes a reference to being brought before a court.

§ (12)The obligations imposed by subsections (2) to (6) above, except so far as relating to farmed fish, shall not be in force during such period (if any) in each year as may be prescribed by byelaw.

§ (13)The obligations imposed by subsections (2) to (6) above on the occupier of a mill shall apply only where the conduit or channel was constructed on or after 18th July 1923.

§ (14)Any reference in this section to ensuring that a screen is placed and maintained includes, in a case where the screen takes the form of apparatus the operation of which prevents the passage of fish of the descriptions in question, a reference to ensuring that the apparatus is kept in continuous operation.

§ (15)In this section "by-wash" means a passage through which water flows.".'.

§ 224 Page 181, line 42, leave out 'in subsection (1),' and insert 'for the word "grating" or "gratings", wherever occurring (including in the side-note), there shall be substituted respectively the word "screen" or "screens".

§ (1A) In subsection (1) of that section (placing of gratings, deepening of channels etc.)'.

§ 225 Page 181, line 49, at end insert: '(3) At the end of that section there shall be added— (5) In this section "open", in relation to a screen which consists of apparatus, includes the doing of anything which interrupts, or otherwise interferes with, the operation of the apparatus.".'.

§ 226 Page 182, line 19, at end insert: '16A. In section 30 of that Act, the paragraph defining "fish farm" (which is superseded by amendments made by this Schedule) shall be omitted.'.

§ 227 Page 182, line 33, at end insert: '17A. After subsection (1A) of section 39 of that Act (application of Act to River Esk in Scotland) there shall be inserted— (1B) Sections 31 to 34 and 36(2) of this Act shall, subject to the modifications set out in subsection (1C) below, apply throughout the catchment area of the River Esk in Scotland but a water bailiff shall exercise his powers under those sections as so applied only in relation to an offence—

(a) against this Act;
(b) against section 1 of the Salmon and Freshwater Fisheries (Protection) (Scotland) Act 1951; or
(c) which is deemed to be an offence under this Act by virtue of section 211(6) of the Water Resources Act 1991,

which he has reasonable cause to suspect has been committed in a place to which this Act applies by virtue of subsection (1) (b) above.

§ (1C) The modifications referred to in subsection (1B) above are—

(a) references in sections 31 to 34 of this Act to "this Act" shall be construed as including references to section 1 of the Salmon and 1624 Freshwater Fisheries (Protection) (Scotland) Act 1951 (as applied to the River Esk by section 21 of that Act); and
(b) in section 33—

(i) references to a justice of the peace shall be construed as including references to a sheriff; and
(ii) in subsection (2), the reference to an information on oath shall be construed as including a reference to evidence on oath.".

§ 17B. In section 41(1) of that Act (general definitions) the following definitions shall be inserted at the appropriate places, that is to say—

(a) ""fish farm" has the same meaning as in the Diseases of Fish Act 1937;"; and
(b) ""screen" means a grating or other device which, or any apparatus the operation of which, prevents—

(a) the passage of salmon or migratory trout, and
(b) if the screen is required in connection with a fish farm, the passage of any fish farmed at that fish farm,

or any combination of devices or apparatus which, taken together, achieve that result;";

§ and the definition of "grating" shall be omitted.

§ 17C. In subsection (3) of section 43 of that Act (extent of Act to Scotland), after the words "(IA)" there shall be inserted the words ", (1B), (1C)".'.

§ 228 Page 183, line 10, at end insert: '(2) In sub-paragraph (3) (c) of that paragraph (byelaws for the purpose of determining for the purposes of the Salmon and Freshwater Fisheries Act 1975 the period of the year during which gratings need not be maintained) for the word "gratings" there shall be substituted the word "screens".'.

§ 229 Schedule 13, page 187, line 13, leave out from 'person' to 'shall' in line 14.

§ 230 Page 187, line 16, after 'mine' insert 'or an abandoned part of a mine'.

§ 231 Page 187, line 17, leave out 'if the mine in question became an abandoned mine' and insert 'to the owner or former operator of any mine or part of a mine if the mine or part in question became abandoned'.

§ 232 Page 187, line 18, at end insert: '(4A) In determining for the purposes of subsection (4) above whether a mine or part of a mine became abandoned before, on or after 31st December 1999 in a case where the mine or part has become abandoned on two or more occasions, of which—

(a) at least one falls on or before that date, and
(b) at least one falls after that date,

the mine or part shall be regarded as becoming abandoned after that date (but without prejudice to the operation of subsection (3) above in relation to that mine or part at, or in relation to, any time before the first of those occasions which falls after that date). (4B) Where, immediately before a part of a mine becomes abandoned, that part is the only part of the mine not falling to be regarded as abandoned for the time being, the abandonment of that part shall not be regarded for the purposes of subsection (4) or (4A) above as constituting the abandonment of the mine, but only of that part of it.'.

§ 233 Page 187. leave out lines 38 and 39.

§ 234 After Schedule 16, insert the following Schedule:—