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Special sites
62.
- (1) If, in a case where a district council has served a remediation notice, the contaminated land in question becomes a special site, the Department may adopt the remediation notice and, if it does so, -
(a) it shall give notice of its decision to adopt the remediation notice to the appropriate person and to the district council;
(b) the remediation notice shall have effect, as from the time at which the Department decides to adopt it, as a remediation notice given by the Department; and
(c) the validity of the remediation notice shall not be affected by -
(i) the contaminated land having become a special site;
(ii) the adoption of the remediation notice by the Department; or
(iii) anything in sub-paragraph (b).
(2) Where a district council has, by virtue of Article 60, begun to do any thing, or any series of things, by way of remediation -
(a) the council may continue doing that thing, or that series of things, by virtue of that Article, notwithstanding that the contaminated land in question becomes a special site; and
(b) Article 61 shall apply in relation to the reasonable cost incurred by the council in doing that thing or those things as if that council were the enforcing authority.
(3) If and so long as any land is a special site, the Department may from time to time inspect that land for the purpose of keeping its condition under review.
(4) If it appears to the Department that a special site is no longer land which is required to be designated as such a site, the Department may give notice to the district council in whose district the site is situated, terminating the designation of the land in question as a special site as from such date as may be specified in the notice.
Registers
63.
- (1) Every enforcing authority shall maintain a register containing prescribed particulars of or relating to -
(a) remediation notices served by that authority;
(b) appeals against any such remediation notices;
(c) remediation statements or remediation declarations prepared and published under Article 56;
(d) appeals against charging notices served by that authority;
(e) notices under paragraph (1)(b)(i) or (5)(a) of Article 51 which have effect by virtue of paragraph (7) of that Article as the designation of any land as a special site;
(f) notices under paragraph (3)(c) of Article 52 which have effect by virtue of paragraph (4) of that Article as the designation of any land as a special site;
(g) notices given by or to the enforcing authority under Article 62(4) terminating the designation of any land as a special site;
(h) notices given to that authority by persons -
(i) on whom a remediation notice has been served, or
(ii) who are or were required by virtue of Article 56(8)(a) to prepare and publish a remediation statement,
of what they claim has been done by them by way of remediation;
(j) notices given to that authority by owners or occupiers of land -
(i) in respect of which a remediation notice has been served, or
(ii) in respect of which a remediation statement has been prepared and published,
of what they claim has been done on the land in question by way of remediation;
(k) convictions for such offences under Article 59 as may be prescribed;
(l) such other matters relating to contaminated land as may be prescribed;
but that duty is subject to Articles 64 and 65.
(2) The form of, and the descriptions of information to be contained in, notices for the purposes of paragraph (1)(h) or (j) may be prescribed.
(3) No entry made in a register under paragraph (1)(h) or (j) constitutes a representation by the body maintaining the register or, in a case where the entry is made under paragraph (6), the authority which sent the copy of the particulars in question under paragraph (4)or (5) -
(a) that what is stated in the entry to have been done has in fact been done; or
(b) as to the manner in which it has been done.
(4) Where any particulars are entered on a register maintained under this Article by the Department, the Department shall send a copy of those particulars to the district council in whose district is situated the land to which the particulars relate.
(5) In any case where -
(a) any land is treated under Article 68(2) as situated in the district of a district council other than the district council in whose district it is in fact situated, and
(b) any particulars relating to that land are entered on the register maintained under this Article by the district council in whose district the land is so treated as situated,
that council shall send a copy of those particulars to the district council in whose district the land is in fact situated.
(6) Where a district council receives a copy of any particulars sent to it under paragraph (4) or (5), it shall enter those particulars on the register maintained by it under this Article.
(7) Where information of any description is excluded by virtue of Article 65 from any register maintained under this Article, a statement shall be entered in the register indicating the existence of information of that description.
(8) Each enforcing authority shall -
(a) secure that the registers maintained by it under this Article are available, at all reasonable times, for inspection by the public free of charge; and
(b) afford to members of the public facilities for obtaining copies of entries, on payment of reasonable charges;
and, for the purposes of this paragraph, places may be prescribed at which any such registers or facilities as are mentioned in sub-paragraph (a) or (b) are to be available or afforded to the public under the sub-paragraph in question.
(9) Registers under this Article may be kept in any form.
Exclusion from registers of information affecting national security
64.
- (1) No information shall be included in a register maintained under Article 63 if and so long as, in the opinion of the Secretary of State, the inclusion in the 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 enforcing authorities directions -
(a) specifying information, or descriptions of information, to be excluded from their 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 enforcing authority shall notify the Secretary of State of any information which it excludes from the register in pursuance of directions 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 enforcing authority 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.
Exclusion from registers of certain confidential information
65.
- (1) No information relating to the affairs of any individual or business shall be included in a register maintained under Article 63, without the consent of that individual or the person for the time being carrying on that business, 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 directions under paragraph (5);
but information is not commercially confidential for the purposes of this Article unless it is determined under this Article to be so by the enforcing authority or, on appeal, by the Planning Appeals Commission.
(2) Where it appears to an enforcing authority that any information which has been obtained by the authority under any provision of this Part might be commercially confidential, the authority shall -
(a) give to the person to whom or whose business it relates notice that that information is required to be included in the register 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 authority for the purpose of justifying any such objection;
and, if any representations are made, the enforcing authority shall, having taken the representations into account, determine whether the information is or is not commercially confidential.
(3) Where, under paragraph (2), an authority determines that information is not commercially confidential -
(a) the information shall not be entered in the register until the end of the period of 21 days from the date on which the determination is notified to the person concerned;
(b) that person may appeal to the Planning Appeals Commission against the decision;
and, where an appeal is brought in respect of any information, the information shall not be entered in the register until the end of the period of 7 days from the day on which the appeal is finally determined or withdrawn.
(4) Paragraphs (6) to (8) of Article 36 shall apply in relation to appeals under paragraph (3) as they apply in relation to appeals under paragraph (5) of that Article.
(5) The Department may give to enforcing authorities which are district councils directions as to specified information, or descriptions of information, which the public interest requires to be included in registers maintained under Article 63 notwithstanding that the information may be commercially confidential.
(6) Information excluded from a register shall be treated as ceasing to be commercially confidential for the purpose 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 appeal to the authority for the information to remain excluded from the register on the ground that it is still commercially confidential and the authority shall determine whether or not that is the case.
(7) Paragraphs (3) and (4) shall apply in relation to a determination under paragraph (6) as they apply in relation to a determination under paragraph (2).
(8) 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.
(9) For the purposes of paragraph (8), there shall be disregarded any prejudice to the commercial interests of any individual or person so far as relating only to the value of the contaminated land in question or otherwise to the ownership or occupation of that land.
Reports by the Department on the state of contaminated land
66.
- (1) The Department shall, from time to time, prepare and publish a report on the state of contaminated land in Northern Ireland.
(2) A district council shall, at the written request of the Department, furnish the Department with such information to which this paragraph applies as the Department may require for the purpose of enabling it to perform its functions under paragraph (1).
(3) The information to which paragraph (2) applies is such information as the district council may have, or may reasonably be expected to obtain, with respect to the condition of contaminated land in its district, being information which the council has acquired or may acquire in the exercise of its functions under this Part.
Guidance by the Department concerning contaminated land
67.
- (1) The Department may issue guidance to any district council with respect to the exercise or the performance of the council's functions under this Part in relation to any particular contaminated land; and in exercising or performing those functions in relation to that land the council shall have regard to any such guidance so issued.
(2) A district council shall, at the written request of the Department, furnish the Department with such information to which this paragraph applies as the Department may require for the purpose of enabling it to issue guidance for the purposes of paragraph (1).
(3) The information to which paragraph (2) applies is such information as the district council may have, or may reasonably be expected to obtain, with respect to any contaminated land in its district, being information which the council has acquired, or may acquire, in the exercise of its functions under this Part.
Supplementary provisions
68.
- (1) Where it appears to a district council that two or more different sites, when considered together, are 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,
this Part shall apply in relation to each of those sites, whether or not the condition of the land at any of them, when considered alone, appears to the council to be such 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.
(2) Where it appears to a district council that any land outside, but adjoining or adjacent to, its district is in such a condition, by reason of substances in, on or under the land, 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 within its district -
but this paragraph is without prejudice to the functions of the district council in whose district the land is in fact situated.
(3) A person acting in a relevant capacity -
(a) shall not thereby be personally liable, under this Part, to bear the whole or any part of the cost of doing any thing by way of remediation, unless that thing is to any extent referable to substances whose presence in, on or under the contaminated land in question is a result of any act done or omission made by him which it was unreasonable for a person acting in that capacity to do or make; and
(b) shall not thereby be guilty of an offence under or by virtue of Article 59 unless the requirement which has not been complied with is a requirement to do some particular thing for which he is personally liable to bear the whole or any part of the cost.
(4) In paragraph (3), "person acting in a relevant capacity" means -
(a) a person acting as an insolvency practitioner, within the meaning of Article 3 of the Insolvency (Northern Ireland) Order 1989 (including that Article as it applies in relation to an insolvent partnership by virtue of any order made under Article 365 of that Order);
(b) the official receiver acting in a capacity in which he would be regarded as acting as an insolvency practitioner within the meaning of Article 3 of the Insolvency (Northern Ireland) Order 1989 if paragraph (5) of that Article were disregarded;
(c) the official receiver acting as a receiver or manager;
(d) a person acting as a special manager under Article 151 or 341 of the Insolvency (Northern Ireland) Order 1989;
(e) a person acting as a receiver or receiver and manager -
(i) under any statutory provision; or
(ii) by virtue of his appointment as such by an order of a court or by any other instrument.
Supplementary provisions with respect to guidance by the Department
69.
- (1) Any power of the Department to issue guidance under this Part shall only be exercisable after consultation with such bodies or persons as the Department may consider it appropriate to consult in relation to the guidance in question.
(2) A draft of any guidance proposed to be issued under Article 49(1) or (2), 50(2) or 54(6) or (7) shall be laid before the Assembly.
(3) If within the statutory period beginning with the day on which a copy of the guidance is laid before the Assembly the Assembly so resolves, no further proceedings shall be taken thereon but without prejudice to the laying before the Assembly of a new draft.
(4) The Department shall arrange for any guidance issued by it under this Part to be published in such manner as the Department considers appropriate.
Interaction of this Part with other statutory provisions
70.
- (1) A remediation notice shall not be served if and to the extent that it appears to the enforcing authority that the powers of the chief inspector under Article 27 of the Industrial Pollution Control (Northern Ireland) Order 1997 (power of chief inspector to remedy harm) may be exercised in relation to -
(a) the significant harm (if any), and
(b) the pollution of waterways and underground strata (if any),
by reason of which the contaminated land in question is such land.
(2) Nothing in this Part shall apply in relation to any land in respect of which there is for the time being in force a site licence under Part II, except to the extent that any significant harm, or pollution of waterways or underground strata, by reason of which that land would otherwise fall to be regarded as contaminated land is attributable to causes other than -
(a) breach of the conditions of the licence; or
(b) the carrying on, in accordance with the conditions of the licence, of any activity authorised by the licence.
(3) If, in a case falling within paragraph (1) or (8) of Article 28, the land in question is contaminated land, or becomes such land by reason of the deposit of the controlled waste in question, a remediation notice shall not be served in respect of that land by reason of that waste or any consequences of its deposit, if and to the extent that the powers of a district council under that Article may be exercised in relation to that waste or the consequences of its deposit.
(4) No remediation notice shall require a person to do anything the effect of which would be to impede or prevent the making of a discharge in pursuance of a consent given under section 5 of the Water Act (Northern Ireland) 1972 (pollution offences) or Part V of the Water and Sewerage Services (Northern Ireland) Order 1973 (trade effluents).
This Part and radioactivity
71.
Except as provided by regulations, nothing in this Part applies in relation to harm, or pollution of waterways or underground strata, so far as attributable to any radioactivity possessed by any substance; but regulations may -
(a) provide for prescribed provisions of this Part to have effect with such modifications as the Department considers appropriate for the purpose of dealing with harm, or pollution of waterways or underground strata, so far as attributable to any radioactivity possessed by any substances; or
(b) make such modifications of the Radioactive Substances Act 1993 or any other statutory provision as the Department considers appropriate.
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