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PART III
CONTAMINATED LAND
Interpretation of Part III
49.
- (1) In this Part -
"appropriate person" means any person who is an appropriate person, determined in accordance with Article 54, to bear responsibility for any thing which is to be done by way of remediation in any particular case;
"charging notice" means a notice under Article 61(3);
"contaminated land" is any land which appears to a district council in whose district it is situated to be in such a condition, by reason of substances in, on or under the land, that -
(a) significant harm is being caused or there is a significant possibility of such harm being caused; or
(b) pollution of waterways or underground strata is being, or is likely to be, caused;
and, in determining whether any land appears to be such land, a district council shall, subject to paragraph (2), act in accordance with guidance issued by the Department in accordance with Article 69 with respect to the manner in which that determination is to be made;
"enforcing authority" means -
(a) in relation to a special site, the Department;
(b) in relation to contaminated land other than a special site, the district council in whose district the land is situated;
"pollution of waterways or underground strata" means the entry into waterways or underground strata of any poisonous, noxious or polluting matter or any solid waste matter;
(a) the doing of anything for the purpose of assessing the condition of -
(i) the contaminated land in question;
(ii) any waterways or underground strata affected by that land; or
(iii) any land adjoining or adjacent to that land;
(b) the doing of any works, the carrying out of any operations or the taking of any steps in relation to any such land or waters for the purpose -
(i) of preventing or minimising, or remedying or mitigating the effects of, any significant harm, or any pollution of waterways or underground strata, by reason of which the contaminated land is such land; or
(ii) of restoring the land, waterways or underground strata to their former state; or
(c) the making of subsequent inspections from time to time for the purpose of keeping under review the condition of the land, waterways or underground strata;
"remediation declaration" means a document prepared and published under Article 56(6);
"remediation notice" means a notice under Article 53(1);
"remediation statement" means a document prepared and published under Article 56(7);
"required to be designated as a special site" shall be construed in accordance with Article 51(8);
"special site" means any contaminated land -
(a) which has been designated as such a site under Article 51(7) or 52(4); and
(b) whose designation as such has not been terminated by the Department under Article 62(4);
"waterways" has the same meaning as in section 30(1) of the Water Act (Northern Ireland) 1972;
"underground strata" has the same meaning as in section 30(1) of the Water Act (Northern Ireland) 1972.
(2) For the purposes of this Part, the questions -
(a) what harm is to be regarded as "significant",
(b) whether the possibility of significant harm being caused is "significant",
(c) whether pollution of waterways or underground strata is being, or is likely to be caused,
shall be determined in accordance with guidance issued for the purpose by the Department in accordance with Article 69.
(3) Without prejudice to the guidance that may be issued under paragraph (2), guidance under sub-paragraph (a) of that paragraph may make provision for different degrees of importance to be assigned to, or for the disregard of, -
(a) different descriptions of living organisms or ecological systems;
(b) different descriptions of places; or
(c) different descriptions of harm to health or property, or other interference;
and guidance under sub-paragraph (b) of that paragraph may make provision for different degrees of possibility to be regarded as "significant" (or as not being "significant") in relation to different descriptions of significant harm.
(4) Waterways or underground strata are "affected by" contaminated land if (and only if) it appears to the enforcing authority that the contaminated land in question is, for the purposes of paragraph (1), in such a condition, by reason of substances in, on or under the land, that significant harm to, or pollution of, those waterways or underground strata is being, or is likely to be caused.
Identification of contaminated land
50.
- (1) Every district council shall cause its district to be inspected for the purpose -
(a) of identifying contaminated land; and
(b) of enabling the council to decide whether any such land is land which is required to be designated as a special site.
(2) In performing its functions under paragraph (1) a district council shall act in accordance with any guidance issued for the purpose by the Department in accordance with Article 69.
(3) If a district council identifies any contaminated land in its district, it shall give notice of that fact to -
(a) the Department;
(b) the owner of the land;
(c) on who appears to the council to be in occupation of the whole or any part of the land; and
(d) each person who appears to the council to be an appropriate person;
and any notice given under this paragraph shall state by virtue of which sub-paragraph (a) to (d) it is given.
(4) If, at any time after a district council has given any person a notice under paragraph (3)(d) in respect of any land, it appears to the enforcing authority that another person is an appropriate person, the enforcing authority shall give notice to that other person -
(a) of the fact that the district council has identified the land in question as contaminated land; and
(b) that he appears to the enforcing authority to be an appropriate person.
Identification and designation of special sites
51.
- (1) If at any time it appears to a district council that any contaminated land in its district might be land which is required to be designated as a special site, the council -
(a) shall decide whether or not the land is land which is required to be so designated; and
(b) if the council decides that the land is land which is required to be so designated, shall -
(i) give notice of that decision to the Department and to the relevant persons; and
(ii) send to the Department a statement of its reasons for reaching the decision.
(2) For the purposes of this Article, "the relevant persons" at any time in the case of any land are the persons who at that time fall within sub-paragraphs (a) to (c), that is to say -
(a) the owner of the land;
(b) any person who appears to the district council concerned to be in occupation of the whole or any part of the land; and
(c) each person who appears to the council to be an appropriate person.
(3) Before making a decision under paragraph (1)(a) in any particular case, a district council shall request the advice of the Department, and in making its decision shall have regard to any advice given by the Department in response to the request.
(4) If at any time the Department considers that any contaminated land is land which is required to be designated as a special site, the Department may give notice of that fact to the district council in whose district the land is situated.
(5) Where notice under paragraph (4) is given to a district council, the council shall decide whether the land in question -
(a) is land which is required to be designated as a special site, or
(b) is not land which is required to be so designated,
and shall give notice of that decision to the Department and to the relevant persons and shall send to the Department a statement of its reasons for reaching the decision.
(6) Where a district council makes a decision falling within paragraph (1)(b) or (5)(a), the decision shall, subject to Article 52, take effect from -
(a) the expiration of the period of 21 days from the day on which the notice required by virtue of paragraph (1)(b)(i) or, as the case may be, (5)(a) is given to the Department;
(b) if the Department gives notice to the district council in question that it agrees with the decision, the date of the giving of that notice;
whichever first occurs, and where a decision takes effect under this paragraph, the council shall give notice of that fact to the relevant persons.
(7) Where a decision that any land is land which is required to be designated as a special site takes effect in accordance with paragraph (6), the notice given under paragraph (1)(b)(i) or, as the case may be, (5)(a) shall have effect, as from the time when the decision takes effect, as the designation of that land as such a site.
(8) For the purposes of this Part, land is required to be designated as a special site if, and only if, it is land of a description prescribed for the purposes of this paragraph.
(9) Without prejudice to the generality of the power to prescribe any description of land for the purposes of paragraph (8), the Department, in deciding whether to prescribe a particular description of contaminated land for those purposes, may, in particular, have regard to -
(a) whether land of the description in question appears to the Department to be land which is likely to be in such a condition, by reason of substances in, on or under the land that -
(i) serious harm would or might be caused, or
(ii) serious pollution of waterways or underground strata would be, or would be likely to be, caused; or
(b) whether the district council is likely to have expertise in dealing with the kind of significant harm, or pollution of waterways or underground strata, by reason of which land of the description in question is contaminated land.
Referral of special site decisions to the Planning Appeals Commission
52.
- (1) In any case where -
(a) a district council gives notice of a decision to the Department under Article 51(1)(b)(i) or (5)(b), but
(b) before the expiration of the period of 21 days from the day on which that notice is so given, the Department gives the council notice that it disagrees with the decision, together with a statement of its reasons for disagreeing,
the council shall refer the decision to the Planning Appeals Commission.
(2) Part III of Schedule 2 shall have effect where a decision is referred to the Planning Appeals Commission under paragraph (1).
(3) Where a decision is referred to the Planning Appeals Commission under paragraph (1) -
(a) the council shall give notice of that referral to the Department and to the relevant persons;
(b) the Planning Appeals Commission shall confirm or reverse the decision with respect to the whole or any part of the land to which it relates;
(c) the council shall give notice of the decision of the Planning Appeals Commission on the referral to the Department and to the relevant persons; and
(d) the decision shall not take effect until the day after that on which the notice required by sub-paragraph (c) has been given to the persons there mentioned and shall then take effect as confirmed or reversed by the Planning Appeals Commission.
(4) Where a decision which takes effect in accordance with paragraph (3)(d) is to the effect that at least some land is land which is required to be designated as a special site, the notice given under paragraph (3)(c) shall have effect, as from the time when the decision takes effect, as the designation of that land as such a site.
(5) In this Article "the relevant persons" has the same meaning as in Article 51.
Duty of enforcing authority to require remediation of contaminated land, etc.
53.
- (1) In any case where -
(a) any land has been designated as a special site under Article 51(7) or 52(4), or
(b) a district council has identified any contaminated land (other than a special site) in its district,
the enforcing authority shall, in accordance with such procedure as may be prescribed and subject to the following provisions of this Part, serve on each person who is an appropriate person a notice (a "remediation notice") specifying what that person is to do by way of remediation and the periods within which he is required to do each of the things so specified.
(2) Different remediation notices requiring the doing of different things by way of remediation may be served on different persons in consequence of the presence of different substances in, on or under any land or waters.
(3) Where two or more persons are appropriate persons in relation to any particular thing which is to be done by way of remediation, the remediation notice served on each of them shall state the proportion, determined under Article 54(7), of the cost of doing that thing which each of them respectively is liable to bear.
(4) hings by way of remediation which the enforcing authority may do, or require to be done, under this Part are things which it considers reasonable, having regard to -
(a) the cost which is likely to be involved; and
(b) the seriousness of the harm, or pollution of waterways or underground strata, in question.
(5) In determining for any purpose of this Part -
(a) what is to be done (whether by an appropriate person, a district council or any other person) by way of remediation in any particular case,
(b) the standard to which any land is, or waterways or underground strata are, to be remediated pursuant to the notice, or
(c) what is, or is not, to be regarded as reasonable for the purposes of paragraph (4),
a district council shall have regard to any guidance issued for the purpose by the Department.
(6) Regulations may make provision for or in connection with -
(a) the form or content of remediation notices; or
(b) any steps of a procedural nature which are to be taken in connection with, or in consequence of, the service of a remediation notice.
Determination of the appropriate person to bear responsibility for remediation
54.
- (1) This Article has effect for the purpose of determining who is the appropriate person to bear responsibility for any particular thing which the enforcing authority determines is to be done by way of remediation in any particular case.
(2) Subject to the following provisions of this Article, any person, or any of the persons, who caused or knowingly permitted the substances, or any of the substances, by reason of which the contaminated land in question is such land to be in, on or under that land is an appropriate person.
(3) A person shall only be an appropriate person under paragraph (2) in relation to things which are to be done by way of remediation which are to any extent referable to substances which he caused or knowingly permitted to be present in, on or under the contaminated land in question.
(4) If no person has, after reasonable inquiry, been found who is under paragraph (2) an appropriate person to bear responsibility for the things which are to be done by way of remediation, the owner or occupier for the time being of the contaminated land in question is an appropriate person.
(5) If, in consequence of paragraph (3), there are things which are to be done by way of remediation in relation to which no person has, after reasonable inquiry, been found who is an appropriate person under paragraph (2), the owner or occupier for the time being of the contaminated land in question is an appropriate person in relation to those things.
(6) Where two or more persons would, apart from this paragraph, be appropriate persons in relation to any particular thing which is to be done by way of remediation, the enforcing authority shall determine whether any, and if so which, of them is to be treated as not being an appropriate person in relation to that thing.
(7) Where two or more persons are appropriate persons in relation to any particular thing which is to be done by way of remediation, they shall be liable to bear the cost of doing that thing in proportions determined by the enforcing authority.
(8) For the purposes of paragraphs (6) or (7), where the enforcing authority is a district council, any determination made by the council shall be in accordance with guidance issued for the purposes of those paragraphs which shall be issued in accordance with Article 69.
(9) A person who has caused or knowingly permitted any substance ("substance A") to be in, on or under any land shall also be taken for the purposes of this Article to have caused or knowingly permitted there to be in, on or under that land any substance which is there as a result of a chemical reaction or biological process affecting substance A.
(10) A thing which is to be done by way of remediation may be regarded for the purposes of this Part as referable to the presence of any substance notwithstanding that the thing in question would not have to be done -
(a) in consequence only of the presence of that substance in any quantity; or
(b) in consequence only of the quantity of that substance which any particular person caused or knowingly permitted to be present.
Grant of, and compensation for, rights of entry, etc.
55.
- (1) A remediation notice may require an appropriate person to do things by way of remediation, notwithstanding that he is not entitled to do those things.
(2) Any person whose consent is required before any thing required by a remediation notice may be done shall grant, or join in granting, such rights in relation to any of the relevant land or waters as will enable the appropriate person to comply with any requirements imposed by the remediation notice.
(3) Before serving a remediation notice, the enforcing authority shall reasonably endeavour to consult every person who appears to the authority -
(a) to be the owner or occupier of any of the relevant land or waters, and
(b) to be a person who might be required by paragraph (2) to grant, or join in granting, any rights,
concerning the rights which that person may be so required to grant.
(4) Paragraph (3) shall not preclude the service of a remediation notice in any case where it appears to the enforcing authority that the contaminated land in question is in such a condition, by reason of substances in, on or under the land, that there is imminent danger of serious harm, or serious pollution of waterways or underground strata, being caused.
(5) A person who grants, or joins in granting, any rights under paragraph (2) shall be entitled, on making an application within such period as may be prescribed and in such manner as may be prescribed to such person as may be prescribed, to be paid by the appropriate person compensation of such amount as may be determined in such manner as may be prescribed.
(6) Without prejudice to the generality of the regulations that may be made under paragraph (5), regulations by virtue of that paragraph may make such provision in relation to compensation under this Article as may be made by regulations under paragraph (4) of Article 7 in relation to compensation under that Article.
(7) In this Article, "relevant land or waters" means -
(a) the contaminated land in question;
(b) any waterways or underground strata affected by that land; or
(c) any land adjoining or adjacent to that land or those waterways or underground strata.
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