Northern Ireland Assembly Flax Flower Logo

WASTE AND CONTAMINATED LAND (AMENDMENT) BILL

EXPLANATORY AND FINANCIAL MEMORANDUM

INTRODUCTION

1. This Explanatory and Financial Memorandum has been prepared by the Department of the Environment in order to assist the reader of the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly.

2. The Memorandum needs to be read in conjunction with the Bill. It is not, and is not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause or schedule does not seem to require an explanation or comment, none is given.

BACKGROUND AND POLICY OBJECTIVES

3. The Bill makes a number of amendments to Part 2 of the Waste and Contaminated Land ( Northern Ireland) Order 1997 (“the 1997 Order”). These were generated from a number of sources including previous engagement with key stakeholders and commitments made in the 2006 Northern Ireland Waste Management Strategy. They are designed to clarify and strengthen the existing statutory framework for waste on land. They also legislate for a partnership approach between the Department of the Environment (“the Department”) and local government in tackling illegal waste activity.

4. The Bill also makes some changes to the legislative framework contained in Part 3 of the 1997 Order for the management of land which has been contaminated by pollution. This part of the Order has not yet been commenced; these amendments mainly reflect lessons learned through experience of operating the legislation in England and Wales. They include an amended definition of contaminated land that more accurately reflects the definition of controlled waters applicable in England and Wales; and the introduction of the notion of “significant” pollution of waterways or underground strata or the “significant possibility” of such pollution.

5. In addition, the Bill includes a minor amendment to the Producer Responsibility Obligations ( Northern Ireland) Order 1998 to provide an inclusive definition of the Department’s powers of entry and inspection.

CONSULTATION

6. On 6 April 2009, the Department launched a public consultation on its proposals for new primary legislation. The responses that were received were mainly from councils or from groups representing councils.

7. The majority of responses that were received expressed support for the Department’s policy proposals.

OPTIONS CONSIDERED

8. The Bill contains a broad range of amendments to the existing legislative framework for the management of waste and contaminated land. In the course of policy development, the Department assessed the viability of alternative approaches, including the option of proceeding without legislative change. For each issue, the proposals contained in the Bill were identified as the preferred options.

OVERVIEW

9. The Bill contains 14 clauses and 2 Schedules.

COMMENTARY ON CLAUSES

Waste
Clause 1 – Fixed penalty notices for offences under Article 4

This clause deals with offences relating to unauthorised or harmful deposit, treatment or disposal etc of waste – as provided for under Article 4 of the 1997 Order. It enables the Department or relevant district council to issue a notice to a perceived offender, offering him the opportunity to pay a fixed penalty as an alternative to court action.

The powers are intended to be used for less serious waste offences. However they are discretionary; the Department or district councils can choose instead to prosecute any offences under Article 4 through the courts.

District councils will be able to use any funds raised through these fixed penalties to cover the costs of enforcement and clean up of illegally deposited waste.

Clause 2 – Detention of seized property

Articles 5E and 42 of the 1997 Order give Departmental enforcement officers the powers in certain circumstances to seize vehicles and other property suspected of being used in illegal waste activity. Articles 5F and 42A specify that subordinate legislation is necessary to give effect to these powers and that the required regulations must set out how the Department will deal with seized property.

This clause allows the Department to include in the regulations powers to retain property for a certain period after seizure. The Department must apply to a magistrates’ court if it wishes to keep the property for longer than this prescribed period. However any person claiming entitlement to the seized property must be given an opportunity to be heard by the court, before it makes a decision on the Department’s application.

Clause 3 – Offence of failing to pay charge for subsistence of licence

Article 15 of the 1997 Order makes provision for the Department to charge for its range of waste management licensing activities. This clause creates new offences of:

  1. a failure to pay subsistence fees; and
  2. continued non payment after a conviction for the offence described in (i) above.
Clause 4 – Powers to require removal of waste unlawfully deposited

Articles 28 and 28A of the 1997 Order give district councils powers to deal with waste unlawfully deposited in their areas. They enable councils to serve a notice on the occupier or in certain specified circumstances, the owner of land requiring him to remove illegal waste or take remedial action.

This clause extends to the Department the power to issue such notices. It also enables a notice under Article 28 to be served on the person believed to have illegally deposited the waste on the land. This person has the same rights of appeal as those currently provided to owners and occupiers and the existing penalties apply in the event of failure to comply with such a notice.

Clause 5 – Councils to enforce Articles 4 and 5 of 1997 Order

This clause gives councils the same enforcement powers as the Department in relation to breaches of Article 4 (prohibition on unauthorised or harmful deposit, treatment or disposal, etc., of waste) and Article 5 (Duty of care, etc., as respects waste) of the 1997 Order. However the power to make and enforce regulations under Article 5(7) of the 1997 Order (requirements in relation to the making and retention of or the furnishing of documents or copies of documents) remains solely with the Department.

Clause 6 – Right of entry with heavy equipment or to domestic premises

This clause removes the requirement, as set out in Article 72 of the 1997 Order, for enforcement officers investigating illegal waste offences to give 24 hours notice before they can enter residential premises or bring heavy machinery onto premises.

Enforcement officers must continue to obtain a court warrant by virtue of Schedule 4 of the 1997 Order, or alternatively must have permission from a person occupying the premises.

Contaminated land
Clause 7 – Contaminated land: pollution of waterways and underground strata

This clause revises the definition of “contaminated land” for the purposes of Part 3 of the 1997 Order. The addition of “underground strata” means that the contaminated land regime now covers pollution to waterways and waters contaminated within underground strata in the saturation zone only. It does not cover those waters in direct contact with the ground or subsoil within the unsaturated zone.

Clause 8 – Appeals against remediation notices

This clause provides for an appeal against a remediation notice, issued by either the Department or a council, to be heard by the Planning Appeals Commission.

Clause 9 – Interaction with other provisions

This clause means that the contaminated land regime cannot be used in circumstances where land has been contaminated by the deposit of controlled waste. In these circumstances, enforcement action should be taken under Regulations 24 and 26(2) of the Pollution Prevention and Control Regulations ( Northern Ireland) 2003.

Producer responsibility obligations
Clause 10 – Producer responsibility obligation regulations

The Producer Responsibility Obligations ( Northern Ireland) Order 1998 gives the Department powers to make regulations obliging certain persons to undertake the re-use, recovery and recycling of products or materials. These powers include provision for entry and inspection, so that the Department can carry out its functions under the regulations.

This clause amends existing legislation in order to provide a more precise definition of the Department’s powers of entry and inspection.

Supplementary
Clause 12 – Commencement

This clause allows the Department to bring the various clauses of the Bill into operation on a day or days to be appointed by commencement order.

Schedules
Schedule 1 - Amendments

This Schedule contains a number of amendments to the 1997 Order. It includes an amendment to Article 27(2) designed to ensure that the Order covers the illegal deposit of waste in, on, over or under land.

FINANCIAL EFFECTS OF THE BILL

10. The new enforcement powers for district councils and the Department are likely to lead to an increased number of prosecutions and therefore to have cost implications, certainly in the short term. However, many of these powers are discretionary and some have the potential for cost recovery - for example councils issuing fixed penalties for illegal waste offences will be able to offset receipts against their enforcement costs.

11. The other provisions in the Bill are not expected to have any significant financial effect.

HUMAN RIGHTS ISSUES

12.The Department believes that the provisions in the Bill are compatible with the Human Rights Act 1998.

EQUALITY IMPACT ASSESSMENT

13.Under the terms of Section 75 of the Northern Ireland Act 1998, the Department carried out screening for equality impact and is satisfied that the provisions in the Bill will not lead to discriminatory or negative differential impact on any of the Section 75 groups.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

14. The Department did not complete a Regulatory Impact Assessment in respect of the provisions in the Bill as they do not give rise to any associated costs or savings on business, charities, social economy enterprises or the voluntary sector.

LEGISLATIVE COMPETENCE

15. The Minister of the Environment had made the following statement under section 9 of the Northern Ireland Act 1998:

“In my view the Waste and Contaminated Land (Amendment) Bill would be within the legislative competence of the Northern Ireland Assembly.”

SECRETARY OF STATE CONSENT

16. The Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill.