Environmental Protection Act 1990

Part 1: establishes a general regime by which the Secretary of State, as of 2008 the Secretary of State for Environment, Food and Rural Affairs, can prescribe any process or substance and set limits on it respective of its emissions into the environment. Authorisation and enforcement was originally in the hands of HM Inspectorate of Pollution and local authorities but in 1996 became the responsibility of the Environment Agency (EA) and Scottish Environment Protection Agency (SEPA). Operation of a prescribed process is prohibited without approval and there are criminal sanctions against offenders.

The Act aims to control and reduce pollution

Part 2: sets out a regime for regulation|regulating and licensing the acceptable disposal of controlled waste on land.

Controlled waste is any household, industrial and commercial waste.[lower-alpha 1] Unauthorised or harmful depositing, treatment or disposal of controlled waste is prohibited with prohibition enforced by criminal sanctions. Further, there is a broad duty of care on importers, producers, carriers, keepers, treaters or disposers of controlled waste to prevent unauthorised or harmful activities. Breach of the duty of care is a crime.

The Act demands that the Secretary of State creates a National Waste Strategy for England and Wales, and that SEPA creates a strategy for Scotland. Local authorities have duties to collect controlled waste and to undertake recycling.

There are criminal penalties on households and businesses who fail to co-operate with the local authorities' arrangements. Enforcement of these penalties sometimes proves controversial.[2]

Part 2a: was inserted by the Environment Act 1995 and defines a scheme of identification and compulsory remedial action for contaminated land.

Part 3: defines a class of statutory nuisances over which the local authority can demand remedial action supported by criminal penalties.

Part 4: defines a set of criminal offences concerning litter.

Part 5: defines a regime of statutory notification and risk assessment for genetically modified organisms (GMOs). There are duties with respect to the import, acquisition, keeping, release or marketing of GMOs and the Secretary of State has the power to prohibit specific GMOs if there is a danger of environmental damage.

Part 6: of the Act created three new organisations: the Nature Conservancy Council for England, the Nature Conservancy Council for Scotland, and the Countryside Council for Wales. Since 1990, the English and Scottish councils have been the subject of considerable reorganisation and, as of 2008, only the Welsh council is still governed by the Act.

The Act superseded the requirements under section 1(1)(d) of the Health and Safety at Work etc. Act 1974 in respect of controlling noxious emissions.[lower-alpha 2]

In the operating year 2005/ 2006, the EA brought 880 prosecutions with an average fine of about £1,700, and 736 in 2006/2007 with an average fine of £6,773. There have also been sentences of imprisonment, including two of over sixteen months in 2006/ 2007.[3]

The Act implements the European Union Waste Framework Directive in England and Wales and Scotland.[4][5]

The Act was intended to strengthen pollution controls and support enforcement with heavier penalties. Before the Act there had been separate environmental regulation of air, water and land pollution and the Act brought in an integrated scheme that would seek the "best practicable environmental option". There was previously no uniform system of licensing or public right of access to information. The split of the Nature Conservancy Council (NCC) into English, Welsh and Scottish bodies was controversial. Purportedly forced on Secretary of State Chris Patten by Secretary of State for Scotland Malcolm Rifkind and forestry minister Lord Sanderson, some saw it as "punishment" for the vigorous opposition the NCC had mounted to afforestation in the Flow Country.[1]

The Secretary of State has the power to prescribe specific processes and substances by statutory instrument.[lower-alpha 3] The power was exercised by the Environmental Protection (Prescribed Processes and Substances) Regulations 1991[6] which have been amended several times. Further, the Secretary of State can make regulations to fix emission standards on prescribed processes and substances.[lower-alpha 4]

Once a process is prescribed, it can only be operated on authorisation from the enforcing authority.[lower-alpha 5] Applications must be made to the authority[lower-alpha 6] and the authority can refuse authorisation or give it subject to conditions.[lower-alpha 7] The authorisation is transferable to somebody else who takes over the undertaking provided that the enforcing authority is notified.[lower-alpha 8] The enforcing authority can revoke the authorisation[lower-alpha 9] or vary its conditions[lower-alpha 10] and the operator can apply to have the conditions varied.[lower-alpha 11]

The 1991 regulations were revoked for England and Wales by the Environmental Permitting (England and Wales) Regulations 2007.[7] Permitting is now regulated by the Environmental Permitting (England and Wales) Regulations 2010.[8] The 1991 regulations remain in force in Scotland, although they are in practice superseded by the Pollution Prevention and Control (Scotland) Regulations 2000 and 2012 made under the Pollution Prevention and Control Act 1999.

Contaminated land is "any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that":[lower-alpha 41]

• "Significant harm is being caused or there is a significant possibility of such harm being caused; or
• Significant pollution of the water environment is being caused or there is a significant possibility of such pollution being caused."

Contaminated land

The Act does not apply to contamination from radioactivity (s.78YC) but similar provisions have been made under subsequent regulations.[17][18]

Local authorities have a duty periodically to survey their locality and, using guidance defined by the Secretary of State,[19] to designate contaminated land as a special site, advising the EA or SEPA.[lower-alpha 42] The authority, EA or SEPA must then serve a remediation notice on the appropriate person.[lower-alpha 43]

The appropriate person responsible for remedial work is "any person, or any of the persons, who caused or knowingly permitted the substances" giving rise to the designation "to be in, on or under that land".[lower-alpha 44] If no such person can be identified after reasonable enquiries, the present owner or occupier is the appropriate person.[lower-alpha 45] Any persons controlling other land to which access is required for remediation must grant such access and may apply to the appropriate person for compensation.[lower-alpha 46] The appropriate person is deemed to be responsible for remediation of other land into which substances have escaped.[lower-alpha 47]

The appropriate person may appeal a notice within 21 days to:[lower-alpha 48]

• A magistrates' court, or a sheriff court in Scotland, where the notice was served by the local authority; or
• The Secretary of State, where the notice was served by the EA or SEPA.

There is a further right of appeal from the magistrates' court to the High Court.[20] but ultimately it is a crime not to comply with a notice.[lower-alpha 49] The local authority, EA or SEPA can perform the remedial work themselves if the appropriate person cannot be found, defaults or requests that they do so.[lower-alpha 50] The authority have discretion as to whether to make the appropriate person responsible for the costs.[lower-alpha 51]

Local authorities, the EA and SEPA must maintain a register of notices that is publicly available, save for reasons of confidentiality and national security.[lower-alpha 52]

Section 79 defines several statutory nuisances:

• Any premises in such a state as to be prejudicial to health or a nuisance;
• Smoke emitted from premises so as to be prejudicial to health or a nuisance;
• Fumes or gases emitted from premises so as to be prejudicial to health or a nuisance;
• Any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance;
• Any accumulation or deposit which is prejudicial to health or a nuisance;
• Any animal kept in such a place or manner as to be prejudicial to health or a nuisance;
• Noise emitted from premises so as to be prejudicial to health or a nuisance; and
• Noise that is prejudicial to health or a nuisance and is emitted from or caused by a vehicle, machinery or equipment on a highway, road, footway, square or court open to the public.

Some exclusions from these categories exist including contaminated land,[lower-alpha 53] activities of the armed forces,[lower-alpha 54] some categories of smoke and dark smoke,[lower-alpha 55] traffic[lower-alpha 56] and demonstrations.[lower-alpha 57]

Local authorities have a duty to make periodic inspections of their area or in response to a complaint from the public.[lower-alpha 58] The local authority shall serve an offending occupier with an abatement notice to cease the nuisance.[lower-alpha 59] The occupier can appeal the notice, within 21 days, to a magistrates' court, in England and Wales, or a sheriff court in Scotland.[lower-alpha 60] Otherwise, it is a crime to fail, without reasonable excuse, to comply with the notice,[lower-alpha 61] punishable on summary conviction by a fine at level 5 of the standard scale, rising by ten percent for every further day on which the nuisance continues.[lower-alpha 62] If the offence is committed by the occupier of business premises, the maximum fine is £40,000.[lower-alpha 63] Where the notice is not complied with, the local authority may take reasonable action to abate the nuisance and recover the expenses from the occupier,[lower-alpha 64] if necessary by installments or by making a charge on the property.[lower-alpha 65]

Any person aggrieved by a statutory nuisance may make a complaint to the magistrates or sheriff.[lower-alpha 66] The court can order the occupier to abate the damage and, in England and Wales only, impose a fine of up to level 5 on the standard scale.[lower-alpha 67] It is a crime, without reasonable excuse, to disobey such an order, punishable on summary conviction by a fine at level 5 of the standard scale, rising by ten percent for every further day on which the nuisance continues.[lower-alpha 68] Sch.3, s.2 provides a power to a magistrates' court to grant a warrant of entry to a local authority for ascertaining whether there exists a statutory nuisance, and taking any action or executing any work to abate it.[21]

Section 84 repeals local authority controls over offensive trades under the Public Health Act 1936.

Section 87 creates the criminal offence of leaving litter.

"If any person throws down, drops or otherwise deposits in, into or from any place to which this section applies, and leaves, any thing whatsoever in such circumstances as to cause, or contribute to, or tend to lead to, the defacement by litter of any place to which this section applies, he shall ... be guilty of an offence"

— Environmental Protect Act 1990 s.87(1)

There are exceptions where the person has lawful authorisation or consent.[lower-alpha 69] Offenders can, on summary conviction in a magistrates' court, be sentenced to a fine of up to level 4 on the standard scale.[lower-alpha 70]

There is also a system of fixed penalty notices.[lower-alpha 71] Local authorities and central government have duties to keep roads, highways and public spaces free from litter.[lower-alpha 72] Members of the public who are aggrieved by litter in public places can apply to a magistrates' court for an abatement notice to order the responsible public body to carry out its duties under section 89.[lower-alpha 73] Public authorities also have powers to issue litter abatement notices and litter clearing notices on the occupiers of certain (i.e. specific) premises to order clearing of litter.[lower-alpha 74] Occupiers can appeal against a notice to the magistrates' court within 21 days[lower-alpha 75] but it is otherwise a crime to disobey a notice, punishable on summary conviction to a fine of up to level 4 on the standard scale.[lower-alpha 76] A local authority may also issue street litter control notices to occupiers of certain (i.e. specific) premises, such as take away food establishments, to keep the street and public areas near to their premises clear of litter.[lower-alpha 77]

Local authorities have the power to designate land in order to prevent the distribution of free printed material, such as advertising flyers. Offenders face summary conviction in a magistrates' court and a fine of up to level 4 on the standard scale, seizure of the material or a fixed penalty notice[lower-alpha 78] Local authorities may seize abandoned shopping trolleys and luggage trolleys, returning them to their owner and imposing a statutory fee, or otherwise disposing of them.[lower-alpha 79]

Some of the provisions of this part were repealed and superseded by the Clean Neighbourhoods and Environment Act 2005.

Part V made a number of amendments to the Radioactive Substances Act 1960, including in relation to the appointment of inspectors and assistant inspectors, fees in respect of registrations, enforcement powers and application of the Act to Crown and United Kingdom Atomic Energy Authority premises.

It was repealed by the Radioactive Substances Act 1993,[22] which consolidated the 1960 Act.

Part VI contains provision intended to ensure that "all appropriate measures are taken to avoid damage to the environment which may arise from the escape or release from human control of genetically modified organisms".[23] These include limitations on the import, acquisition, keeping, release or marketing of GMOs.

• Environment Agency v Clark

Within the Environmental Protection Act

• Defra (1996). Waste Management, The Duty of Care, A Code of Practice (PDF). London: The Stationery Office. ISBN 0-11-753210-X. Archived from the original (PDF) on 31 January 2012. Retrieved 3 February 2012.
• Defra (2006). Contaminated Land: Environmental Protection Act 1990 (Defra Circular 1/2006 ed.). London: The Stationery Office. ISBN 0-11-243096-1.
• Tromans, S. (1991). Environmental Protection Act, 1990: Text and Commentary. London: Sweet & Maxwell. ISBN 0-421-44260-3.

• "Recycling and waste". Defra. 2008. Archived from the original on 7 July 2008. Retrieved 22 July 2008.