Statutory Instruments of the Scottish Parliament

"the Act" means the Water Environment and Water Services (Scotland) Act 2003;

"an application" means an application made in accordance with regulation 12;

"authorisation" means an authorisation granted under regulation 7, 8 or 9;

"controlled activity" is any activity referred to in regulation 4(1);

(a) the activity authorised;

(b) any conditions imposed under paragraph (2); and

(c) the date of authorisation.

(a) any charge prescribed in accordance with Schedule 5; and

(b) such information in such form as SEPA may reasonably require.

(a) the variations being made to the authorisation; and

(b) the date on which the variations are to take effect which shall not be less than 3 months from the date on which the notice was served.

(a) contravene regulation 5;

(b) fail to comply with or contravene a general binding rule;

(c) fail to comply with or contravene a registration (including any condition imposed);

(d) fail to comply with or contravene a water use licence (including any condition imposed);

(e) obstruct an authorised person in the exercise of that person's powers under regulation 27(4) and Schedule 6;

(f) fail to comply with any requirement imposed in the exercise of that person's powers under regulation 27(4) and Schedule 6;

(g) fail or refuse to provide facilities or assistance or any information or to permit any inspection reasonably required by an authorised person in the exercise of that person's powers or duties under or by virtue of regulation 27(4) and Schedule 6;

(h) prevent any other person from appearing before an authorised person, or answering any question to which an authorised person may require an answer, pursuant to regulation 27(4) and Schedule 6;

(i) pretend to be a person authorised in accordance with regulation 27(4);

(j) fail to comply with the requirements of a notice issued under regulation 28(2);

(k) fail to comply with the requirements of an information notice under regulation 32(2);

(l) make a statement which that person knows to be false or misleading in a material particular, or recklessly to make a statement which is false or misleading in a material particular, where the statement is made–


(i) in purported compliance with a requirement to furnish any information imposed by or under any provision of these Regulations; or

(ii) for the purpose of obtaining an authorisation issued under these Regulations to that or any other person, or the variation, transfer or surrender of an authorisation;



(m) intentionally make a false entry in any record required to be kept as a condition of an authorisation;

(n) with intent to deceive, forge or use a document issued or authorised to be issued under the condition of an authorisation or required for any purpose under a condition of such an authorisation or to make or have in that person's possession a document so closely resembling any such document so as to be likely to deceive; or

(o) cause or permit any other person to commit an offence under sub-paragraphs (a) to (n) above.

    (2) A person guilty of an offence under paragraph (1) shall be liable–

(a) on summary conviction–


(i) to a fine not exceeding £40,000 or to imprisonment for a term not exceeding 6 months, or to both; and

(ii) in the case of a continuing offence, to a further fine not exceeding £250 for every day during which the offence is continued after conviction;



(b) on conviction on indictment–



(i) to a fine or to imprisonment for a term not exceeding 5 years, or to both; and

(ii) in the case of a continuing offence to a further fine not exceeding £1,000 for every day during which the offence is continued after conviction.

(a) a person who has been refused the grant of an authorisation in accordance with regulation 15(3) or is deemed to have been refused the grant of an authorisation in accordance with regulation 16(3);

(b) a person who has been granted a form of authorisation under regulation 15 which is different from the form of authorisation which that person believes ought to have been granted;

(c) a person who is aggrieved by the terms and conditions attached to that person's authorisation in accordance with regulation 8 or 9;

(d) a person who has been served with a variation notice under regulation 20(2) or is aggrieved by the conditions attached to that variation notice;

(e) a person who has been refused the variation of an authorisation on request under regulation 21;

(f) a person whose application under regulation 22 for SEPA to effect the transfer of an authorisation has been refused; or who is aggrieved by the conditions attached to that person's authorisation to take account of such a transfer;

(g) a person whose application to surrender an authorisation under regulation 24(3) has been refused or who is aggrieved by the conditions attached to that authorisation in order to take account of the surrender;

(h) a person whose authorisation has been suspended or revoked (in whole or in part) under regulation 26;

(i) a person on whom a notice has been served under regulation 28(2), or who is aggrieved by the terms of that notice; and

(j) where SEPA has determined that information is not commercially confidential under Part VI, the person to whom, or whose business, that information relates,

(a) shall be in writing; and

(b) may be withdrawn, varied or revoked by a further notice in writing (whether before or after the notice has come into effect).

    (2) Any such notice may be served on or given to a person by leaving it at that person's proper address or by sending it by post to that person at that address.

    (3) Any such notice may–

(a) in the case of a body corporate, be served on the secretary or clerk of that body;

(b) in the case of a partnership, be served on or given to a partner or person having the control or management of the partnership business.

(a) organohalogen compounds and substances which may form such compounds in the aquatic environment;

(b) organophosphorus compounds;

(c) organotin compounds;

(d) substances which possess carcinogenic, mutagenic or teratogenic properties in or via the aquatic environment;

(e) mercury and its compounds;

(f) cadmium and its compounds;

(g) mineral oils and hydrocarbons;

(h) cyanides.

     2. A substance is not listed in this Schedule if it has been determined by SEPA to be inappropriate to be so listed on the basis of a low risk of toxicity, persistence and bioaccumulation.

     3. SEPA shall publish any determination it makes under paragraph 2 in such manner as it considers appropriate to bring it to the notice of persons affected by, likely to be affected by, or interested in the determination and shall make copies of the determination available to the public free of charge.

"channel width" means the straight-line distance that is between opposite bank-tops of a river, burn or ditch and which spans the bed of a river, burn or ditch, including any exposed bars and vegetated islands;

"minor bridge" means a bridge having no part of its structure within the channel of a river, burn or ditch and constructed for the purpose of supporting a footpath, cycle route or single-track road;

"oil" means any kind of oil and includes fuel oil, waste oil and hydraulic oil;

"revetment" means a modification to a bank of a river, burn or ditch that increases the resistance of the bank to lateral erosion;

"rip-rap" means irregular shaped stones placed along a bank of a river, burn or ditch for the purpose of increasing the resistance of the bank to erosion;

(a) the grant or imposition of an authorisation under regulations 8, 9 or 11

(b) the variation of any authorisation under regulations 20 or 21;

(c) the subsistence of an authorisation;

(d) the transfer of an authorisation to another person, under regulation 22;

(e) the surrender of an authorisation under regulation 24;

(f) the determination that information is confidential under regulation 35.

     3. A charging scheme may impose:

(a) a single charge in respect of the whole of any authorisation;

(b) separate charges in respect of different parts of any such authorisation;

(c) both such a single charge and such separate charges.

     4. A charging scheme may make such provision for charges as is reasonable or necessary to meet the requirements of paragraph 6, and may in particular provide for different charges to be payable according to:

(a) the description of the authorisation in question;

(b) the controlled activity in question;

(c) the scale on which the controlled activity is carried on;

(d) the description or amount of any substance to which the controlled activity in question relates;

(e) the number of different controlled activities carried on by the same person.

     5. A charging scheme:

(a) shall specify, in relation to any charge prescribed by the scheme, the description of the person who is liable to pay the charge;

(b) may provide that it shall be a condition of an authorisation that any charge prescribed is paid in accordance with the scheme;

(c) may, where appropriate, provide incentives to secure efficient and sustainable water use.

(a) any other person duly authorised by SEPA and, if the authorised person has reasonable cause to apprehend any serious obstruction in the execution of that person's duty, a constable; and

(b) any equipment or materials required for any purpose for which the power of entry is being exercised.

     3. To make such examination and investigation as may in the circumstances be necessary.

     4. As regards any premises which that person has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph 3.

     5. To take such measurements and photographs and make such recordings as that person considers necessary for the purpose of any examination or investigation under paragraph 3.

     6. To obtain and to take samples, or cause samples to be taken, of any articles or substances found in or on any premises which that person has power to enter, and of the air, water or land in, on, or in the vicinity of, the premises.

     7. To monitor–

(a) the water environment or any part of it; or

(b) the carrying on of controlled activities.

     8. To take steps for the measurement and recording of precipitation.

     9. To install and maintain gauges, or other apparatus and works connected therewith, for any of the purposes mentioned in paragraphs 7 and 8.

     10. To take such steps as may be necessary in order to obtain any information required for any of the purposes mentioned in paragraphs 7 or 8.

     11. In the case of any article or substance found in or on any premises which that person has power to enter, being an article or substance which appears to that person to have, or be likely to have, a significant adverse impact on the water environment, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it, unless that is necessary).

     12. In the case of any such article or substance as is mentioned in paragraph 11, to take possession of it and detain it for so long as is necessary for all or any of the following purposes namely:

(a) to examine it, or cause it to be examined, and to do, or cause to be done, to it anything which that person has power to do under that paragraph;

(b) to ensure that it is not tampered with before examination of it is completed;

(c) to ensure that it is available for use as evidence in any proceedings for an offence under these Regulations or in any other proceedings relating to a variation notice, revocation or suspension notice or enforcement notice under these Regulations.

     13. —(1) Subject to sub paragraph (2), to require any person whom he has reasonable cause to believe has any information relevant to any examination or investigation under paragraph 3 to answer such questions as the authorised person thinks fit to ask.

    (2) The person referred to in sub paragraph (1) may only be required to answer such questions in the absence of persons other than–

(a) a person nominated by that person to be present; and

(b) any person whom the authorised person may allow to be present.

     14. To require the production of, or where the information is recorded electronically, the furnishing of extracts from, any records which are–

(a) required to be kept under these Regulations ; or

(b) necessary for that person to see for the purposes of an examination or investigation under paragraph 3,

and to inspect and take copies of, or of any entry in, the records.

     15. To require any person to afford such facilities and assistance with respect to any matters or things within that person's control or in relation to which that person has responsibilities as are necessary to enable the authorised person to exercise any of the powers conferred by this regulation.

     16. To carry out borings or other works on any premises and to install, keep or maintain monitoring or other apparatus there.

(a) after the expiration of at least seven days' notice of the proposed entry given to a person who appears to the authorised person in question to be in occupation of the premises in question; and

(b) either–


(i) with the consent of a person who is in occupation of those premises; or

(ii) under the authority of a warrant by virtue of Part 3 to this Schedule.

     19. Except in an emergency, where an authorised person proposes to enter any premises and–

(a) entry has been refused and that person apprehends on reasonable grounds that the use of force may be necessary to effect entry; or

(b) that person apprehends on reasonable grounds that entry is likely to be refused and that the use of force may be necessary to effect entry,

any entry on to those premises by virtue of this regulation shall only be effected under the authority of a warrant issued in accordance with Part 3 of this Schedule.

     20. Where an authorised person proposes to exercise the power conferred by paragraph 11 in the case of an article or substance found on any premises, that person shall, if so requested by a person who at the time is present on and has responsibilities in relation to those premises, cause anything which is to be done by virtue of that power to be done in the presence of that person.

     21. Before exercising the power conferred by paragraph 11 in the case of any article or substance, an authorised person shall consult–

(a) such persons having duties on the premises where the article or substance is to be dismantled or subjected to the process or test; and

(b) such other persons,

as appear to that authorised person appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which that person proposes to do or cause to be done under the power.

     22. No answer given by a person in pursuance of a requirement imposed under paragraph 13 shall be admissible in evidence against that person in any criminal proceedings.

     23. Nothing in this schedule shall be taken to compel the production by any person of a document of which that person would on grounds of legal professional privilege be entitled to withhold production on an order for the production of documents in an action in the Court of Session.

     24. A person who enters any premises in the exercise of any power conferred by these Regulations must leave the premises as effectually secured against unauthorised entry as that person found them.

(a) there are reasonable grounds for the exercise in relation to any premises of a power under Part 1 of this Schedule; and

(b) one or more of the conditions specified in paragraph 26 is fulfilled in relation to those premises,

the sheriff or justice of the peace may by warrant authorise SEPA to designate a person to exercise the power in relation to those premises, in accordance with the warrant and, if need be, by force.

     26. The conditions mentioned in paragraph 25 are–

(a) that the exercise of the power in relation to the premises has been refused;

(b) that such a refusal is reasonably apprehended;

(c) that the premises are unoccupied;

(d) that the occupier is temporarily absent from the premises, and the case is one of urgency; or

(e) that an application for admission to the premises would defeat the object of the proposed entry.

     27. In a case where paragraph 25 applies, a justice of the peace or sheriff shall not issue a warrant under this Schedule by virtue only of being satisfied that the exercise of a power in relation to any premises has been refused, or that a refusal is reasonably apprehended, unless that person is also satisfied that the notice required by paragraph 18 has been given and that the period of that notice has expired.

     28. Every warrant under this Schedule shall continue in force until the purposes for which the warrant was issued have been fulfilled.

(a) taken by virtue of the powers under this Schedule at a gauge, measuring station or other place provided in compliance with a condition imposed in an authorisation, is a sample, taken in accordance with those powers, of what was passing to the water environment at the place and the time recorded;

(b) taken in exercise of the powers under this Schedule in circumstances that an authorised person has agreed with the operator or responsible person the time when, and the points at which, samples are to be taken, is a sample taken under that agreement and in accordance with those powers, of what was passing to the water environment at the place and time recorded.

     30. Subject to paragraph 22, information obtained in consequence of the exercise of a power under this Schedule, with or without the consent of any person, shall be admissible in evidence against that or any other person.

     31. Without prejudice to the generality of paragraph 30, information obtained by means of monitoring or other apparatus installed on any premises in the exercise of a power under this Schedule 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.

(a) the exercise by an authorised person of the powers in paragraphs 1, 2 or 16; or

(b) the failure of an authorised person to perform the duty imposed by paragraph 24,

unless the damage is attributable to the fault of the person who sustained it.

    (2) SEPA must compensate any person for damage or destruction of an article or substance in exercise of powers under paragraph 11 where that article or substance was found not to have a significant adverse impact on the water environment.

    (3) Any dispute as to a person's entitlement to compensation under paragraph (1) or (2), or as to the amount of such compensation, is to be determined by a single arbiter appointed by agreement between SEPA and the person claiming damage, or in default of agreement, by the President of the Lands Tribunal for Scotland.

    (4) An authorised person shall not be liable in any civil or criminal proceedings for anything done in purported exercise of any of the powers conferred on that person in accordance with regulation 27(4) if the court is satisfied that it was done in good faith and that there were reasonable grounds for doing it.

(a) any application made to SEPA for an authorisation;

(b) any notice to the applicant by SEPA under regulation 20 or 26;

(c) any advertisement published pursuant to regulation 13 and any representations made by any person in response to such an advertisement, other than representations which the person who made them requested should not be placed in the register;

(d) in a case where any such representations are omitted from the register at the request of the person who made them, a statement by SEPA that representations have been made which have been the subject of such a request (but such statement shall not identify the person who made the representations in question);

(e) any authorisation granted, or deemed to be granted, under these Regulations;

(f) any authorisation imposed by SEPA;

(g) any application made to SEPA for the variation, transfer or surrender of an authorisation;

(h) any variation, transfer and surrender of any authorisation granted by SEPA;

(i) any suspension or revocation of an authorisation granted by SEPA;

(j) any notice issued by SEPA withdrawing or modifying a variation notice, a notice of surrender or a notice of suspension or revocation .

(k) any enforcement notice, issued by SEPA;

(l) any notice issued by SEPA withdrawing or modifying any enforcement notice;

(m) any notice of appeal against a decision by SEPA or a notice served by it and of the documents relating to the appeal mentioned in paragraph 2(a), (d) and (e) of Schedule 9;

(n) any representations made by any person in response to a notice given under paragraph 6 of Schedule 9, except where the person making the representation has requested that the representation be omitted from the register;

(o) where paragraph (n) applies a statement that representations have been made which have been the subject of such a request (but such statement shall not identify the person who made the representations);

(p) any written notification of the determination by the Scottish Ministers of an appeal and any report accompanying any written notification;

(q) any monitoring information relating to the carrying on, or the causing or permitting of the carrying on, of a controlled activity under an authorisation granted by SEPA which has been obtained by it as a result of its own monitoring or furnished to it in writing by virtue of a condition of the authorisation or under regulation 32(2);

(r) in a case where any monitoring information is omitted from the register by virtue of regulation 34, a statement by SEPA, based on the monitoring information from time to time obtained by or furnished to it, indicating whether or not there has been compliance with any relevant condition of the authorisation;

(s) any other information furnished in compliance with a condition of the authorisation, a variation notice, enforcement notice, suspension notice or works notice, or by virtue of regulation 32(2);

(t) any direction given to SEPA under any provision of these Regulations; and

(u) convictions for offences under these Regulations.

     2. Where an application is withdrawn by the applicant at any time before it is determined, all particulars relating to that application which are already in the register shall be removed from the register not less than two months and not more than three months after the date of withdrawal of the application, and no further particulars relating to that application shall be entered in the register.

     3. Nothing in paragraph 1 shall require SEPA to keep in the register maintained by it–

(a) monitoring information relating to a particular controlled activity 6 years after that information was entered in the register; or

(b) information relating to a controlled activity which has been superseded by new information relating to that controlled activity 6 years after that new information was entered in the register.

     4. Paragraph 3(a) shall not apply to any aggregated monitoring data relating to specific impacts or classes of impacts on the water environment from controlled activities generally or from any class of controlled activities.

(a) a statement of the grounds of appeal;

(b) a copy of any relevant application;

(c) a copy of any relevant authorisation;

(d) a copy of any relevant correspondence between the appellant and SEPA;

(e) a copy of any decision or notice which is the subject matter of the appeal; and

(f) a statement indicating whether the appellant wishes the appeal to be in the form of a hearing or to be disposed of on the basis of written representations.

     3. An appellant may withdraw an appeal by notifying the Scottish Ministers in writing, and shall send a copy of that notification to SEPA.

     4. Subject to paragraph 5, notice of appeal in accordance with paragraph 1 is to be given–

(a) in the case of an appeal under regulation 46(a), (b) or (c), before the expiry of the period of three months beginning with the date of the decision or deemed decision which is the subject matter of the appeal;

(b) in the case of an appeal under regulation 46(h), before the date on which the revocation takes effect;

(c) in the case of an appeal under regulation 46(d), (e), (f),or (g) , before the expiry of the period of two months beginning with the date of the notice which is the subject matter of the appeal;

(d) in the case of an appeal under regulation 46 (i) or (j), before the expiry of 21 days beginning with the date of the notice which is the subject matter of the appeal.

     5. The Scottish Ministers may in a particular case allow notice of appeal to be given after the expiry of the periods mentioned in paragraph 4(a), (c), or (d).

     6. Subject to paragraph 9, SEPA shall, within 14 days of receipt of the copy of the notice of appeal sent in accordance with paragraph 1, give notice of it to–

(a) any person who made representations to SEPA with respect to the subject matter of the appeal; and

(b) any person who appears to SEPA to be affected or likely to be affected by, or have an interest in, the subject matter of the appeal.

     7. A notice under paragraph 6 shall–

(a) state that the notice of appeal has been given;

(b) state the name of the appellant and the address of the site where the controlled activity is being carried on;

(c) describe the application or authorisation to which the appeal relates; and

(d) state that representations with respect to the appeal may be made to the Scottish Ministers in writing by any recipient of the notice within a period of 21 days beginning with the date of the notice and that copies of any representations so made will be furnished to the appellant and to SEPA;

(e) explain that any such representations made by any person will be entered in a public register unless that person requests in writing that they should not be so entered, and that where such a request is made there will be included in the register a statement indicating only that representations have been made which have been the subject of such a request;

(f) state that if a hearing is to be held wholly or partly in public, a person mentioned in paragraph 6(a) or (b) who makes representations with respect to the appeal will be notified of the date of the hearing.

     8. SEPA shall, within 14 days of sending a notice under paragraph 6–

(a) notify the Scottish Ministers of the persons to whom and the date on which the notice was sent; and

(b) indicate whether it wishes the appeal to be in the form of a hearing or to be disposed of on the basis of written representations.

(a) assess the risk to the water environment posed by the carrying on of the authorised activity;

(b) assess what steps may be taken to ensure efficient and sustainable water use;

(c) apply the requirements of–


(i) the legislation referred to in Part 1 of Schedule 4; and

(ii) regulation 24(5); and



(d) have regard to the provisions of the legislation referred to in Part 2 of Schedule 4,

and shall take such steps under the authorising legislation as are necessary to ensure that the relevant authorisations comply with the requirements of these Regulations.

     17. The review required under paragraph 15, and the steps required under paragraph 16 shall be completed by 1st April 2010.

     18. Where, on or after 1st April 2006, an application for a relevant authorisation is made, or if made before that date has not been determined, in respect of an activity which is a controlled activity, the provisions of paragraph 19 and 20 apply.

     19. SEPA shall, when considering an application referred to in paragraph 18–

(a) assess the risk to the water environment posed by the carrying on of the authorised activity;

(b) assess what steps may be taken to ensure efficient and sustainable water use;

(c) apply the requirements of–


(i) the legislation referred to in Part 1 of Schedule 4; and

(ii) regulation 24(5); and



(d) have regard to the provisions of the legislation referred to in part 2 of Schedule 4,

and shall, if they grant the application, ensure that the relevant authorisation complies with the requirements of these Regulations.

     20. Where an application is granted in accordance with paragraph 19, it shall, for the purposes of regulation 5, be deemed to be an authorisation granted under these Regulations.

     21. In this Part–

(a) SEPA has not determined an application made under paragraph 23 on or before 1st April 2006; or

(b) SEPA has determined that application and the applicant has appealed against that determination,

the activity referred to in paragraph 22 shall, for the purposes of regulation 5, be deemed to be authorised under these Regulations in accordance with the description of the activity given in the application referred to in paragraph 23, until SEPA has determined the application, or the Scottish Ministers have determined the appeal, as the case may be.