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Enforcement
Powers of entry and
inspection
25.
- (1) Any person duly authorised by the Department may at any
reasonable time enter any premises for the purpose of performing, whether
in relation to those premises or not, any functions conferred on the
Department under this Part.
(2) Any person
duly authorised by the Department may at any reasonable
time -
(a) enter any premises for the purpose of determining whether, and
if so in what manner, any functions conferred on the Department under
this Part are to be performed in relation to those premises, or whether
any provision of this Part or of any regulations made under this Part
has been complied with; and
(b) carry out such inspections,
surveys, measurements and tests on any premises entered by that person
or of any articles found on any such premises, and take away such
samples of water or effluent or of any land or articles, as the
Department -
(i) considers appropriate for the purpose mentioned in
sub-paragraph (a); and
(ii) has authorised that person to carry
out or take away.
(3) The Department may by regulations make
provision as to the procedure to be followed in connection with the taking
of, and the dealing with, samples under paragraph
(2).
(4) The powers which by virtue of
paragraph (2) are conferred in relation to any premises for the purpose of
enabling the Department to determine whether any provision of this Part or
of any regulations made under this Part 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 and keep monitoring and other
apparatus there.
(5) The Department may, after consulting the
occupier of any land or owner of any vehicle, vessel or mobile plant from
which effluent is discharged, fix the points at which samples are to be
taken of effluent passing into a waterway or underground
strata.
(6) If it is shown to the
satisfaction of a justice of the peace on sworn complaint in
writing -
(a) that admission to any premises which any person is entitled to
enter under this Article has been refused to that person, or that
refusal is apprehended, or that the premises are unoccupied or that the
occupier is temporarily absent, or that the case is one of urgency, or
that an application for admission would defeat the object of the entry;
and
(b) that there is reasonable ground for entry upon the
premises for the purpose for which entry is required;
the justice may by warrant under his hand authorise that person to
enter the premises, if need be by
force.
(7) A warrant granted under
paragraph (6) shall continue in force until the purpose for which entry is
required has been satisfied.
(8) The power
conferred by paragraph (2)(b) shall be exercisable for the purpose of
inspecting any documents in the possession of any body relating to the
functions of the body, and the person carrying out any such inspection may
take copies of, or extracts from, any such
documents.
Supplementary provisions as to powers of entry and
inspection
26.
- (1) A person authorised under Article 25 to enter any
premises shall, if so required, produce evidence of his authority before
so entering.
(2) A person so authorised may
take with him onto the premises in question such other persons, and such
equipment, as may be necessary.
(3)
Admission to any land used for residential purposes, and admission with
heavy equipment to any other land, shall not except in an emergency be
demanded under Article 25 unless 7 days' notice of the intended entry has
been given to the occupier.
(4) Any person
who, in the exercise of his powers under Article 25, enters any premises
which are unoccupied or premises of which the occupier is temporarily
absent, shall leave the premises as effectually secured against
trespassers as he found them.
(5) Any
person who intentionally obstructs a person acting in the exercise of his
powers under Article 25 shall be guilty of an offence and liable on
summary conviction to a fine not exceeding level 3 on the standard
scale.
(6) If any person assaults a person
acting in the exercise of his powers under Article 25 he shall be guilty
of an offence and shall be liable on summary conviction to a fine not
exceeding level 3 on the standard scale or to imprisonment for a term not
exceeding 6 months or to both such fine and such
imprisonment.
(7) Where in the exercise of
any power conferred by Article 25 any damage is caused to premises or to
chattels, any person interested in the premises or chattels shall be
entitled to compensation in respect of the damage from the Department; and
where in consequence of the exercise of any such power any person is
disturbed in his enjoyment of any premises or chattels, he shall be
entitled to compensation in respect of the disturbance from the
Department.
(8) Any dispute as to a
person's entitlement to compensation under paragraph (7) or the amount of
it shall be determined by the Lands
Tribunal.
(9) If any person who, under
Article 25, is admitted into a factory, workshop or workplace discloses to
any person any information obtained by him therein with regard to any
manufacturing process or trade secret he shall, unless the disclosure is
made in the performance of his duty, be liable on summary conviction to a
fine not exceeding level 3 on the standard scale, or to imprisonment for a
term not exceeding 3 months, or both.
Evidence in connection
with certain pollution offences
27. - (1) Information obtained in consequence of
the exercise of a right conferred by Article 25, with or without the
consent of any person, shall be admissible in evidence against that or any
other person.
(2) Without prejudice to the
generality of paragraph (1), information obtained by means of monitoring
or other apparatus installed on any premises in the exercise of a right
conferred by Article 25, with or without the consent of any person in
occupation of the premises, shall be admissible in evidence in any
proceedings against that or any other
person.
(3) In any legal proceedings it
shall be presumed, until the contrary is shown, that any sample of
effluent taken at a point fixed under Article 25(5) or an inspection
chamber or manhole or other place provided in compliance with a condition
imposed under this Part in relation to any waterway or underground stratum
is a sample of what was passing from premises to that waterway or
stratum.
(4) Information provided or
obtained pursuant to or by virtue of a condition attached to a discharge
consent (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.
(5) For the purposes of
paragraphs (2) and (4), apparatus shall be presumed in any proceedings to
register or record accurately, unless the contrary is shown or the consent
otherwise provides.
(6)
Where -
(a) by virtue of a condition attached to a discharge consent, an
entry is required to be made in any record as to the observance of any
condition of the consent, and
(b) the entry has not been
made,
that fact shall be admissible in any proceedings as evidence that that
condition has not been observed.
Power to obtain
information
28.
- (1) The Department may give directions requiring any person
who is abstracting water from any waterway or underground stratum or is
discharging effluent into any waterway or underground stratum to give such
information to the Department as to the abstraction or discharge, at such
times and in such form, as may be specified in the
directions.
(2) A person to whom a
direction under paragraph (1) is given may, within 28 days from the date
the direction is given to him, appeal to the Appeals
Commission.
(3) Any person who fails to
comply with any direction given under paragraph (1) shall be guilty of an
offence and liable on summary conviction to a fine not exceeding level 2
on the standard scale.
(4) Any direction
given under paragraph (1) shall be in writing and may be varied or revoked
by a subsequent direction.
Penalties for false
information
29. Any
person who -
(a) in giving any information which he is required to give under
this Part, knowingly or recklessly makes a statement which is false or
misleading in a material particular; or
(b) for the purpose of
obtaining any discharge consent or any variation of such a consent,
knowingly or recklessly makes a statement which is false or misleading
in a material particular,
shall be guilty of an offence and liable -
(i) on conviction on indictment, to imprisonment for a term not
exceeding 2 years, or to a fine, or to both;
(ii) on summary
conviction, to imprisonment for a term not exceeding 3 months, or to a
fine not exceeding the statutory maximum.
Registers and other information
Pollution control register
30. - (1) The Department shall, in accordance with
regulations, maintain registers containing prescribed particulars of or
relating to -
(a) any notices of water quality objectives or other notices
published or served under Article 6;
(b) any notices served under
Article 8 and any convictions for offences under that
Article;
(c) applications made for discharge consents;
(d)
discharge consents given by the Department and the conditions, if any,
to which the consents are subject;
(e) applications made to the
Department for the variation of discharge consents;
(f)
enforcement notices served under Article 12;
(g) revocations
under paragraph 5 of Schedule 1 of discharge consents;
(h)
appeals under Article 13;
(i) convictions, for offences under
Article 9, of persons who have the benefit of discharge
consents;
(j) information obtained or furnished in pursuance of
conditions of discharge consents;
(k) works notices;
(l)
appeals under Article 17(7);
(m) convictions for offences under
Article 19;
(n) any matter about which particulars are required
to be kept in any register under Article 20 of the Industrial Pollution
Control (Northern Ireland) Order 1997 (particulars about authorisations
for prescribed processes, etc.) by the chief inspector appointed under
that Order;
(o) the following, that is to
say -
(i) particulars of sampling points fixed under Article
25(5);
(ii) samples of water or effluent taken by the
Department for the purposes of any of the provisions of this
Part;
(iii) information produced by analyses of those
samples;
(iv) such information with respect to samples of water
or effluent taken by any other person, and the analyses of those
samples as is acquired by the Department from any person under
arrangements made by the Department for the purposes of any of those
provisions; and
(v) the steps taken in consequence of any such
information as is mentioned in any of heads (ii) to (iv);
(p) such other matters relating to the quality of water or the
pollution of water as may be prescribed.
(2) Where information of any description is
excluded from any register by virtue of Article 32, a statement shall be
entered in the register indicating the existence of information of that
description.
(3) The Department
shall -
(a) ensure that the contents of registers maintained under this
Article are available, at all reasonable times, for inspection by the
public free of charge; and
(b) afford members of the public
reasonable facilities for obtaining from the Department, on payment of
reasonable charges, copies of entries in any of the
registers.
(4) A register maintained under this Article
shall, in favour of a person charged with an offence under this Part, be
conclusive evidence as to the terms of any discharge consent, or any
condition to which such a consent is subject, as that consent, or that
condition, as the case may be, has effect for the time
being.
Exclusion from registers of information affecting
national security
31.
- (1) No information shall be included in a register maintained
under Article 30 if and so long as, in the opinion of the Secretary of
State, the inclusion in such a register of that information, or
information of that description, would be contrary to the interests of
national security.
(2) The Secretary of
State may, for the purpose of securing the exclusion from registers of
information to which paragraph (1) applies, give to the Department
directions -
(a) specifying information, or descriptions of information, to be
excluded from its registers; or
(b) specifying descriptions of
information to be referred to the Secretary of State for his
determination;
and no information referred to the Secretary of State in pursuance of
sub-paragraph (b) shall be included in any such register until the
Secretary of State determines that it should be so
included.
(3) The Department shall notify
the Secretary of State of any information it excludes from a register in
pursuance of directions given under paragraph
(2).
(4) A person may, as respects any
information which appears to him to be information to which paragraph (1)
may apply, give a notice to the Secretary of State specifying the
information and indicating its apparent nature; and, if he does
so -
(a) he shall notify the Department that he has done so;
and
(b) no information so notified to the Secretary of State
shall be included in any such register until the Secretary of State has
determined that it should be so included.
(5) Any direction given under paragraph (2)
shall be in writing and may be varied or revoked by a subsequent
direction.
Exclusion from registers of certain confidential
information
32.
- (1) No information relating to the affairs of any individual
or business shall, without the consent of that individual or the person
for the time being carrying on that business, be included in a register
maintained under Article 30, if and so long as the
information -
(a) is, in relation to him, commercially confidential;
and
(b) is not required to be included in the register in
pursuance of a specification under paragraph (10);
but information is not commercially confidential for the purposes of
this Article unless it is determined under this Article to be so by the
Department, or, on appeal, by the Appeals
Commission.
(2) Where information is
furnished to the Department for the purpose of -
(a) an application for a discharge consent or for the variation of
such a consent,
(b) complying with any condition of a discharge
consent, or
(c) complying with a direction under Article
28,
then, if the person furnishing it applies to the Department to have the
information excluded from any register maintained under Article 30, on the
ground that it is commercially confidential (as regards himself or another
person), the Department shall determine whether the information is or is
not commercially confidential.
(3) A
determination under paragraph (2) must be made within the period of 14
days from the date of the application and if the Department fails to make
a determination within that period it shall be treated as having
determined that the information is commercially
confidential.
(4) Where it appears to the
Department that any information (other than information furnished in
circumstances within paragraph (2)) which has been obtained by the
Department under any statutory provision might be commercially
confidential, the Department shall -
(a) give to the person to whom or whose business it relates notice
that that information is required to be included in a register
maintained under Article 30, unless excluded under this Article;
and
(b) give him 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 the Department for the purpose of justifying any
such objection;
and, if any representations are made, the Department shall, having
taken the representations into account, determine whether the
information is or is not commercially confidential.
(5) Where, under paragraph (2) or (4), the
Department determines that information is not commercially
confidential -
(a) the information shall not be entered on the register until the
end of the period of 21 days from the date on which the determination is
notified to the person concerned; and
(b) that person may appeal
to the Appeals Commission against the decision;
and, where an appeal is brought in respect of any information, the
information shall not be entered on the register until the end of the
period of 7 days from the day on which the appeal is finally determined or
withdrawn.
(6) If either party to an appeal
under paragraph (5) so requests, the appeal shall be or continue in the
form of a hearing which must be held in
private.
(7) Paragraphs (3) to (6) of
Article 8 of the Water and Sewerage Services (Northern Ireland) Order 1973
shall not apply in relation to any appeal under paragraph
(5).
(8) The Appeals Commission shall
notify the Department and the appellant of its decision on an appeal under
paragraph (5).
(9) The decision of the
Appeals Commission on an appeal under paragraph (5) shall be final, except
on a point of law.
(10) The Department may
specify information, or descriptions of information, which the public
interest requires to be included in a register maintained under Article 30
notwithstanding that the information may be commercially
confidential.
(11) Information excluded
from a register shall be treated as ceasing to be commercially
confidential for the purposes of this Article at the expiry of the period
of 4 years from the date of the determination by virtue of which it was
excluded; but the person who furnished it may apply to the Department for
the information to remain excluded from the register on the ground that it
is still commercially confidential and the Department shall determine
whether or not that is the case.
(12)
Paragraphs (5) to (9) shall apply in relation to a determination under
paragraph (11), as they apply in relation to a determination under
paragraph (2) or (4).
(13) The Department
may by regulations substitute for the period for the time being specified
in paragraph (3) such other period as the Department considers
appropriate.
(14) Information is, for the
purposes of any determination under this Article, commercially
confidential, in relation to any individual or person, if its being
contained in the register would prejudice to an unreasonable degree the
commercial interests of that individual or person.
Maps of
fresh-water limits of waterways
33. - (1) The Department shall -
(a) maintain maps showing what appear to the Department to be the
fresh-water limits of every waterway; and
(b) make such maps
available, at all reasonable times, for inspection by the public free of
charge.
(2) This Article does not apply to any waterway
of a description specified in an order made by the Department subject to
negative resolution.
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