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Northern Ireland Orders in Council |
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You are here: BAILII >> Databases >> Northern Ireland Orders in Council >> The Waste and Contaminated Land (Northern Ireland) Order 1997 (N.I. 19) URL: http://www.bailii.org/nie/legis/num_orders/1997/19972778(j).html |
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Restrictions and prohibitions on serving remediation notices 56. - (1) Before serving a remediation notice, the enforcing authority shall reasonably endeavour to consult -
(b) the owner of any land to which the notice relates, (c) any person who appears to that authority to be in occupation of the whole or any part of the land, and (d) any person of such other description as may be prescribed,
concerning what is to be done by way of remediation.
(ii) ending with the expiration of the period of 3 months from the day on which the notice required by paragraph (3)(d) or, as the case may be, paragraph (4) of Article 50 is given to that person in respect of that land;
(b) if a decision falling within sub-paragraph (b) of Article 51(1) is made in relation to the contaminated land in question, the period beginning with the making of the decision and ending with the expiration of the period of 3 months beginning with -
(ii) in a case where the decision is referred to the Planning Appeals Commission under Article 52, the day on which the district council gives the notice required by paragraph (3)(c) of that Article;
(c) if the Department gives a notice under paragraph (4) of Article 51 to a district council in relation to the contaminated land in question, the period beginning with the day on which that notice is given and ending with the expiration of the period of 3 months beginning with -
(ii) in a case where the council makes a decision falling within paragraph (5)(b) of that Article and the Department fails to give notice under sub-paragraph (b) of Article 52(1), the day following the expiration of the period of 21 days mentioned in that sub-paragraph; or (iii) in a case where the council makes a decision falling within Article 51(5)(b) which is referred under Article 52 to the Planning Appeals Commission, the day on which the council gives the notice required by paragraph (3)(c) of that Article.
(4) Neither paragraph (1) nor paragraph (3) shall preclude the service of a remediation notice in any case where it appears to the enforcing authority that the 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.
(b) the authority is satisfied that appropriate things are being, or will be, done by way of remediation without the service of a remediation notice on that person; (c) it appears to the authority that the person on whom the notice would be served is the authority itself; or (d) the authority is satisfied that the powers conferred on it by Article 60 to do what is appropriate by way of remediation are exercisable.
(6) Where the enforcing authority is precluded under Article 53(4) or (5) from specifying in a remediation notice any particular thing by way of remediation which it would otherwise have specified in such a notice, the authority shall prepare and publish a document (a "remediation declaration") which shall record -
(b) the grounds on which the authority is satisfied that it is precluded from specifying that thing in such a notice.
(7) In any case where the enforcing authority is precluded, by virtue of sub-paragraph (b), (c) or (d) of paragraph (5), from serving a remediation notice, the responsible person shall prepare and publish a document (a "remediation statement") which shall record -
(b) the name and address of the person who is doing, has done, or is expected to do, each of those things; and (c) the periods within which each of those things is being, or is expected to be, done.
(8) For the purposes of paragraph (7), the "responsible person" is -
(b) in a case where the condition in sub-paragraph (c) or (d) of that paragraph is satisfied, the enforcing authority.
(9) If a person who is required under paragraph (8)(a) to prepare and publish a remediation statement fails to do so within a reasonable time after the date on which a remediation notice specifying the things there mentioned could, apart from paragraph (5), have been served, the enforcing authority may itself prepare and publish the statement and may recover its reasonable costs of doing so from that person.
(b) the authority is not precluded by any other provision of this Part from serving a remediation notice on the appropriate person,
the authority shall serve a remediation notice on that person; and any such notice may be so served without any further endeavours by the authority to consult persons under paragraph (1), if and to the extent that that person has been consulted under that paragraph concerning the things which will be specified in the notice.
(b) who has not caused or knowingly permitted the substances in question to be in, on or under that land,
to do anything by way of remediation to any land or waters (other than land or waters of which he is the owner or occupier) in consequence of land A appearing to be in such a condition, by reason of the presence of those substances in, on or under it, that significant harm is being caused, or there is a significant possibility of such harm being caused, or that pollution of waterways or underground strata is being, or is likely to be caused.
(b) who has not caused or knowingly permitted the substances in question to be in, on or under that land,
to do anything by way of remediation in consequence of any further land in, on or under which those substances or any of them appear to be or to have been present as a result of their escape from land A ("land B") appearing to be in such a condition, by reason of the presence of those substances in, on or under it, that significant harm is being caused, or there is a significant possibility of such harm being caused, or that pollution of waterways or underground strata is being, or is likely to be caused, unless he is also the owner or occupier of land B.
(b) another person ("person B") who has not caused or knowingly permitted those substances to be in, on or under that land becomes the owner or occupier of that land, and (c) the substances, or any of the substances, mentioned in sub-paragraph (a) appear to have escaped to other land,
no remediation notice shall require person B to do anything by way of remediation to that other land in consequence of the apparent acts or omissions of person A, except to the extent that person B caused or knowingly permitted the escape.
(b) if it was served by the Department, to the Planning Appeals Commission;
and in the following provisions of this Article "the appellate authority" means the court of summary jurisdiction or, as the case may be, the Planning Appeals Commission.
(b) subject to that, may confirm the remediation notice, with or without modification, or quash it.
(5) Where an appellate authority confirms a remediation notice, with or without modification, it may extend the period specified in the notice for doing what the notice requires to be done.
(b) prescribe the cases in which a remediation notice is, or is not, to be suspended until the appeal is decided, or until some other stage in the proceedings; (c) prescribe the cases in which the decision on an appeal may in some respects be less favourable to the appellant than the remediation notice against which he is appealing; (d) prescribe the cases in which the appellant may claim that a remediation notice should have been served on some other person and prescribe the procedure to be followed in those cases.
Offences of not complying with a remediation notice
(b) where an appropriate person has entered into a written agreement with the enforcing authority for that authority to do, at the cost of that person, that which he would otherwise be required to do under this Part by way of remediation; (c) where a person on whom the enforcing authority serves a remediation notice fails to comply with any of the requirements of the notice; (d) where the enforcing authority is precluded by Article 57 from including something by way of remediation in a remediation notice; (e) where the enforcing authority considers that, were it to do some particular thing by way of remediation, it would decide under paragraph (2) of Article 61 or any guidance issued under that paragraph, -
(ii) to seek so to recover only a portion of that cost;
(f) where no person has, after reasonable inquiry, been found who is an appropriate person in relation to any particular thing.
(4) Subject to Article 53(4) and (5), for the purposes of this Article, the things which it is appropriate for the enforcing authority to do by way of remediation are -
(b) in a case falling within sub-paragraph (b) of that paragraph, anything specified in, or determined under, the agreement mentioned in that sub-paragraph; (c) in a case falling within sub-paragraph (c) of that paragraph, anything which the person mentioned in that sub-paragraph was required to do under the remediation notice; (d) in a case falling within sub-paragraph (d) of that paragraph, anything by way of remediation which the enforcing authority is precluded by Article 57 from including in a remediation notice; (e) in a case falling within sub-paragraph (e) or (f) of that paragraph, the particular thing mentioned in the sub-paragraph in question.
(5) In this Article "the relevant land or waters" means -
(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.
Recovery of, and security for, the cost of remediation by the enforcing authority
(b) where the enforcing authority is a district council, to any guidance issued by the Department for the purposes of this paragraph.
(3) Paragraph (4) shall apply in any case where -
(ii) who caused or knowingly permitted the substances, or any of the substances, by reason of which the land is contaminated land to be in, on or under the land; and
(b) the enforcing authority serves a notice under this paragraph (a "charging notice") on that person.
(4) Where this paragraph applies -
(b) subject to the following provisions of this Article, the cost and accrued interest shall be a charge on the premises mentioned in paragraph (3)(a)(i).
(5) A charging notice shall -
(b) state the effect of paragraph (4) and the rate of interest determined by the authority under that paragraph; and (c) state the effect of paragraphs (7) and (8).
(6) On the date on which an enforcing authority serves a charging notice on a person, the authority shall also serve a copy of the notice on every other person who, to the knowledge of the authority, has an interest in the premises capable of being affected by the charge.
(b) where an appeal is brought under paragraph (8), as from the final determination or (as the case may be) the withdrawal, of the appeal,
until the cost and interest are recovered.
(b) order that the notice is to have effect with the substitution of a different amount for the amount originally specified in it; or (c) order that the notice is to be of no effect.
(10) Regulations may make provision with respect to -
(b) the procedure on any such appeal.
(11) A charge under this Article may be recovered by the same means and in the like manner in all respects as if it were a mortgage by deed created by the owner of the estate in favour of the enforcing authority and, for the recovery thereof, the enforcing authority may exercise the powers conferred by sections 19, 21 and 22 of the Conveyancing Act 1881 on mortgages by deed.
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| © Crown copyright 1997 | Prepared
20 January 1998
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