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PART II

WASTE ON LAND

Meaning of "fit and proper person"
     3.  - (1) The following provisions apply for the purposes of the discharge by the Department of any function under this Part which requires the Department to determine whether a person is or is not a fit and proper person to hold a waste management licence.

    (2) Whether a person is or is not a fit and proper person to hold a licence is to be determined by reference to the carrying on by him of the activities which are or are to be authorised by the licence and the fulfilment of the requirements of the licence.

    (3) Subject to paragraph (4), a person shall be treated as not being a fit and proper person if it appears to the Department - 

    (a) that he or another relevant person has been convicted of a prescribed offence;

    (b) that the management of the activities which are or are to be authorised by the licence are not or will not be in the hands of a technically competent person; or

    (c) that the person who holds or is to hold the licence has not made and either has no intention of making or is in no position to make financial provision adequate to discharge the obligations arising from the licence.

    (4) The Department may, if it considers it proper to do so in any particular case, treat a person as a fit and proper person notwithstanding that paragraph (3)(a) applies in his case.

    (5) Regulations may prescribe the qualifications and experience required of a person for the purposes of paragraph (3)(b).

    (6) For the purposes of paragraph (3)(a), another relevant person shall be treated, in relation to the licence holder or proposed licence holder, as the case may be, as having been convicted of a prescribed offence if - 

    (a) any person has been convicted of a prescribed offence committed by him in the course of his employment by the holder or, as the case may be, the proposed holder of the licence or in the course of the carrying on of any business by 2 or more persons in partnership one of such persons was the holder or, as the case may be, the proposed holder of the licence;

    (b) a body corporate has been convicted of a prescribed offence committed when the holder or, as the case may be, the proposed holder of the licence was a director, manager, secretary or other similar officer of that body corporate; or

    (c) where the holder or, as the case may be, the proposed holder of the licence is a body corporate, a person who is a director, manager, secretary or other similar officer of that body corporate - 

      (i) has been convicted of a prescribed offence; or

      (ii) was a director, manager, secretary or other similar officer of another body corporate at a time when a prescribed offence for which that other body corporate has been convicted was committed.

      Prohibition on unauthorised or harmful depositing, treatment or disposal of waste

Prohibition on unauthorised or harmful deposit, treatment or disposal, etc., of waste
    
4.  - (1) Subject to paragraphs (2) and (3) a person shall not - 

    (a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence;

    (b) treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of - 

      (i) in or on any land, or

      (ii) by means of any mobile plant,

    except under and in accordance with a waste management licence;

    (c) treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health.

    (2) Paragraph (1) does not apply in relation to household waste from a domestic property which is treated, kept or disposed of within the curtilage of the dwelling by or with the permission of the occupier of the dwelling.

    (3) Paragraph (1)(a), (b) or (c) do not apply in prescribed cases.

    (4) When making regulations under paragraph (3) the Department shall have regard in particular to the expediency of excluding from the controls imposed by waste management licences - 

    (a) any deposits which are small enough or of such a temporary nature that they may be so excluded;

    (b) any means of treatment or disposal which are innocuous enough to be so excluded;

    (c) cases for which adequate controls are provided by another statutory provision.

    (5) Where controlled waste is carried in and deposited from a vehicle, the person who controls or is in a position to control the use of the vehicle shall, for the purposes of paragraph (1)(a), be treated as knowingly causing the waste to be deposited whether or not he gave any instructions for this to be done.

    (6) A person who contravenes paragraph (1) or any condition of a waste management licence shall be guilty of an offence.

    (7) It shall be a defence for a person charged with an offence under this Article to prove - 

    (a) that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence; or

    (b) that he acted under instructions from his employer and neither knew nor had reason to suppose that the acts done by him constituted a contravention of paragraph (1); or

    (c) that the acts alleged to constitute the contravention were done in an emergency in order to avoid danger to human health in a case where - 

      (i) he took all such steps as were reasonably practicable in the circumstances for minimising pollution of the environment and harm to human health; and

      (ii) particulars of the acts were furnished to the Department as soon as reasonably practicable after they were done.

    (8) Except in a case falling within paragraph (9), a person guilty of an offence under this Article shall be liable - 

    (a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding £20,000 or to both; and

    (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine or to both.

    (9) A person guilty of an offence under this Article in relation to special waste shall be liable - 

    (a) on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding £20,000 or to both;

    (b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or to a fine or to both.

    Duty of care, etc., as respects waste

Duty of care, etc., as respects waste
    
5.  - (1) Subject to paragraph (2), any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, shall take all such measures applicable to him in that capacity as are reasonable in the circumstances - 

    (a) to prevent any contravention by any other person of Article 4;

    (b) to prevent the escape of the waste from his control or that of any other person; and

    (c) on the transfer of the waste, to secure - 

      (i) that the transfer is only to an authorised person or to a person for authorised transport purposes; and

      (ii) that there is transferred such a written description of the waste as will enable other persons to avoid a contravention of that Article and to comply with this paragraph as respects the escape of waste.

    (2) Paragraph (1) does not apply to an occupier of domestic property as respects the household waste produced on the property.

    (3) The following are authorised persons for the purpose of paragraph (1)(c) - 

    (a) any district council;

    (b) any person who is the holder of a waste management licence under Article 6 or of a disposal licence under Article 7 of the Pollution Control and Local Government (Northern Ireland) Order 1978;

    (c) any person to whom Article 4(1) does not apply by virtue of regulations under paragraph (3) of that Article;

    (d) any person registered as a carrier of controlled waste under Article 39; and

    (e) any person who is not required to be so registered by virtue of regulations under Article 38(3).

    (4) Regulations may amend paragraph (3) so as to add, whether generally or in such circumstances as may be prescribed, any person specified in the regulations, or any description of person so specified, to the persons who are authorised persons for the purposes of paragraph (1)(c).

    (5) The following are authorised transport purposes for the purposes of paragraph (1)(c) - 

    (a) the transport of controlled waste within the same premises between different places in those premises;

    (b) the transport to a place in Northern Ireland of controlled waste which has been brought from a country or territory outside Northern Ireland not having been landed in Northern Ireland until it arrives at that place; and

    (c) the transport by air or sea of controlled waste from a place in Northern Ireland to a place outside Northern Ireland.

    (6) For the purposes of paragraph (1)(c)(ii) - 

    (a) a transfer of waste in stages shall be treated as taking place when the first stage of the transfer takes place, and

    (b) a series of transfers between the same parties of waste of the same description shall be treated as a single transfer taking place when the first of the transfers in the series takes place.

    (7) Regulations may make provision imposing requirements on any person who is subject to the duty imposed by paragraph (1) as respects the making and retention of documents and the furnishing of documents or copies of documents.

    (8) Any person who fails to comply with paragraph (1) or with any requirement imposed under paragraph (7) shall be guilty of an offence and shall be liable - 

    (a) on summary conviction, to a fine not exceeding the statutory maximum; and

    (b) on conviction on indictment, to a fine.

    (9) The Department shall, after consultation with such persons or bodies as appear to the Department representative of the interests concerned, prepare and issue a code of practice for the purpose of providing to persons practical guidance on how to discharge the duty imposed on them by paragraph (1).

    (10) The Department may issue modifications of, or withdraw, a code of practice issued under paragraph (9); but where a code is withdrawn, the Department shall prepare and issue a new code under that paragraph in substitution for it.

    (11) The draft of the code prepared under paragraph (9) shall be laid before the Assembly.

    (12) If within the statutory period beginning with the day on which a copy of the draft 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.

    (13) A code of practice issued under paragraph (9) shall be admissible in evidence and if any provision of such a code appears to the court to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.

    (14) In this Article "broker" means a person who has control of controlled waste for the purposes of having carried out on behalf of another person any of the activities mentioned in paragraph (1).

Waste Management Licences

Waste management licences: general
    
6.  - (1) A waste management licence is a licence granted by the Department authorising the treatment, keeping or disposal of any specified description of controlled waste in or on specified land or the treatment or disposal of any specified description of controlled waste by means of specified mobile plant.

    (2) A licence shall be granted to the following person, that is to say - 

    (a) in the case of a licence relating to the treatment, keeping or disposal of waste in or on land, to the person who is in occupation of the land; and

    (b) in the case of a licence relating to the treatment or disposal of waste by means of mobile plant, to the person who operates the plant.

    (3) A licence shall be granted on such terms and subject to such conditions as appear to the Department to be appropriate and the conditions may relate - 

    (a) to the activities which the licence authorises, and

    (b) to the precautions to be taken and works to be carried out in connection with or in consequence of those activities;

and accordingly requirements may be imposed in the licence which are to be complied with before the activities which the licence authorises have begun or after the activities which the licence authorises have ceased.

    (4) Conditions may require the holder of a licence to carry out works or do other things notwithstanding that he is not entitled to carry out the works or do the thing and any person whose consent would be required shall grant, or join in granting, the holder of the licence such rights in relation to the land as will enable the holder of the licence to comply with any requirements imposed on him by the licence.

    (5) Conditions may relate, where waste other than controlled waste is to be treated, kept or disposed of, to the treatment, keeping or disposal of that other waste.

    (6) Regulations may make provision as to the conditions which are, or are not, to be included in a licence.

    (7) Any person who - 

    (a) intentionally makes a false entry in any record required to be kept under any condition of a licence, or

    (b) with intent to deceive, forges or uses a licence or makes or has in his possession a document so closely resembling a licence as to be likely to deceive,

shall be guilty of an offence and shall be liable - 

      (i) on summary conviction, to a fine not exceeding the statutory maximum;

      (ii) on conviction on indictment, to imprisonment for a term not exceeding 2 years, or to a fine or to both.

    (8) A licence may not be surrendered by the holder except in accordance with Article 13.

    (9) A licence is not transferable by the holder but the Department may transfer it to another person under Article 14.

    (10) A licence shall continue in force until it is revoked entirely by the Department under Article 12 or it is surrendered or its surrender is accepted under Article 13.

Compensation where rights granted pursuant to Article 6(4) or 12(9)
    
7.  - (1) This Article applies in any case where - 

    (a) the holder of a licence is required - 

      (i) by the conditions of the licence; or

      (ii) by a requirement imposed under Article 12(8),

    to carry out any works or do any other thing which he is not entitled to carry out or do;

    (b) a person whose consent would be required has, pursuant to the requirements of Article 6(4) or 12(9), granted, or joined in granting, to the holder of the licence any rights in relation to any land; and

    (c) those rights, or those rights together with other rights, are such as will enable the holder of the licence to comply with any requirements imposed on him by the licence or, as the case may be, under Article 12(8).

    (2) In a case where this Article applies, any person who has granted, or joined in granting, the rights in question shall be entitled to be paid compensation under this Article by the holder of the licence.

    (3) Regulations shall provide for the descriptions of loss and damage for which compensation is payable under this Article.

    (4) Regulations may - 

    (a) provide for the basis on which any amount to be paid by way of compensation under this Article is to be assessed;

    (b) without prejudice to the generality of paragraph (3) and sub-paragraph (a), provide for compensation under this Article to be payable in respect of - 

      (i) any effect of any rights being granted, or

      (ii) any consequence of the exercise of any rights which have been granted;

    (c) provide for the times at which any entitlement to compensation under this Article is to arise or at which any such compensation is to become payable;

    (d) provide for the persons or bodies by whom, and the manner in which, any dispute - 

      (i) as to whether any, and (if so) how much and when, compensation under this Article is payable; or

      (ii) as to the person to or by whom it shall be paid,

    is to be determined;

    (e) provide for when or how applications may be made for compensation under this Article;

    (f) without prejudice to the generality of sub-paragraph (d), provide for when or how applications may be made for the determination of any such disputes as are mentioned in that sub-paragraph;

    (g) without prejudice to the generality of sub-paragraphs (e) and (f), prescribe the form in which any such applications as are mentioned in those sub-paragraphs are to be made;

    (h) make provision similar to any provision made by Article 18 of the Land Compensation (Northern Ireland) Order 1982;

    (i) include such incidental, supplemental, consequential or transitional provision as the Department considers appropriate.

 
© Crown copyright 1997
Prepared 20 January 1998

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