Article 9(3).
DISCHARGE CONSENTS
Application for
consent
1.
- (1) An application for a discharge
consent -
(a) shall be made to the Department on a form provided for the
purpose by the Department; and
(b) must be advertised by or on
behalf of the applicant in such manner as may be required by
regulations.
(2) Regulations may provide that any
advertising of an application as is required under sub-paragraph (1)(b)
may, in any case, be dispensed with if, in that case, it appears to the
Department to be appropriate for that advertising to be dispensed
with.
(3) The applicant for a discharge
consent must provide to the Department, either on, or together with, the
form mentioned in sub-paragraph (1)(a) such information as may be
prescribed for the purpose, but, subject to paragraph 2(3) and without
prejudice to the effect (if any) of any other contravention of the
requirements of this Schedule in relation to an application under this
paragraph, a failure to provide information in pursuance of this
sub-paragraph shall not invalidate an
application.
(4) The Department may give
the applicant notice requiring him to provide it with such further
information of any description specified in the notice as the Department
may require for the purpose of determining the
application.
(5) An application made in
accordance with this paragraph which relates to proposed discharges at two
or more places may be treated by the Department as separate applications
for consents for discharges at each of those places.
Consideration and determination of
applications
2.
- (1) On an application under paragraph 1 the Department shall
be under a duty, if the requirements -
(a) of that paragraph, and
(b) of any regulations made under
that paragraph,
are complied with, to consider whether to give the consent applied for,
either unconditionally or subject to conditions, or to refuse
it.
(2) Subject to the following provisions
of this Schedule, on an application made in accordance with paragraph 1,
the applicant may treat the consent applied for as having been refused if
it is not given within the period of 4 months beginning with the day on
which the application is received or within such longer period as may be
agreed in writing between the Department and the
applicant.
(3) Where any person, having
made an application to the Department for a discharge consent, has failed
to comply with -
(a) his obligation under paragraph 1(1)(b) to advertise the
application; or
(b) his obligation under paragraph 1(3) or (4) to
provide information to the Department,
the Department may refuse to proceed with the application, or refuse to
proceed with it until the application has been advertised or, as the case
may be, the information has been
provided.
(4) The conditions subject to
which a consent may be given under this paragraph shall be such conditions
as the Department may think fit and a consent may be given under this
paragraph subject to different conditions in respect of different
periods.
(5) The Department may, by
regulations, substitute for any period for the time being specified in
sub-paragraph (2), such other period as it thinks
fit.
(6) Where an application is made under
paragraph 1, the Department shall give notice of its decision on that
application to -
(a) the person making the application;
(b) the Foyle
Fisheries Commission, where the discharge is to be, or is being, made in
the Londonderry Area;
(c) the Fisheries Conservancy Board for
Northern Ireland, where the discharge is to be, or is being, made
outside that Area.
Public inquiries
3. - (1) For the purpose of
considering representations made in respect of an application made under
paragraph 1, the Department may direct the Appeals Commission to hold a
public local inquiry.
(2) Where the Appeals
Commission is directed to hold an inquiry under this
paragraph -
(a) the inquiry shall be held by such member of the Appeals
Commission as the Chief Commissioner may appoint in that
behalf;
(b) the Chief Commissioner may, after consultation with
the Appeals Commission and the Department, appoint an assessor to sit
with the member appointed under head (a) at the inquiry to advise him on
any matters arising;
(c) notwithstanding heads (a) and (b), any
report on the inquiry shall be made by the Appeals
Commission.
(3) The Appeals Commission may pay to any
assessor appointed under sub-paragraph (2)(b) such fees and allowances as
the Commission, with the approval of the Department, may
approve.
(4) Where any representations made
in respect of an application made under paragraph 1 are, in the opinion of
the Department, relevant to a public local inquiry to be held by the
Planning Appeals Commission under Article 31 of the Planning Order (major
planning applications), the Department may direct that those
representations shall be considered by that
inquiry.
(5) The Department shall give
notice of any direction made under sub-paragraph (1) or (4)
to -
(a) the person making the application;
(b) the Foyle
Fisheries Commission where the discharge to which the application
relates is to be made in the Londonderry Area;
(c) the Fisheries
Conservancy Board for Northern Ireland, where the discharge to which the
application relates is to be made outside that area;
and (without prejudice to section 23 of the Interpretation Act
(Northern Ireland) 1954) that person and the Foyle Fisheries Commission
or, as the case may be, the Board shall be entitled to appear and be heard
at the relevant inquiry.
(6) The Department
shall give notice of any direction under sub-paragraph (4) to the person
who made the application under the Planning Order which is the subject of
the public local inquiry to which the notice
relates.
(7) Paragraph 2(2) shall not apply
to an application made under paragraph 1 where the Department makes a
direction under sub-paragraph (1) or (4) of this
paragraph.
(8) Where the Department makes a
direction under paragraph (1) or (4) in relation to an application, it
shall in determining the application consider the report on the public
local inquiry held by the Appeals Commission or, as the case may be, the
Planning Appeals Commission.
(9) In this
paragraph, "the Planning Order" means the Planning (Northern Ireland)
Order 1991.
Consents without
applications
4.
- (1) If it appears to the Department -
(a) that a person has discharged effluent or other matter in
contravention of Article 9; and
(b) that a similar contravention
by that person is likely,
the Department may, if it thinks fit, serve on him an instrument in
writing giving its consent for the purposes of that Article, subject to
any conditions specified in the instrument, for discharges of a
description so specified.
(2) Where a
discharge consent has been given under this paragraph, the Department
shall give notice of its decision to give that consent
to -
(a) the Foyle Fisheries Commission, where the discharge is to be, or
is being, made in the Londonderry Area;
(b) the Fisheries
Conservation Board for Northern Ireland, where the discharge is to be,
or is being, made outside that area.
(3) A discharge consent given under this
paragraph shall not relate to any discharge which occurred before the
instrument containing the consent was served on the recipient of the
instrument.
(4) Sub-paragraph (4) of
paragraph 2 shall have effect in relation to a consent given under this
paragraph as it has effect in relation to a consent given under that
paragraph.
(5) Where a discharge consent
has been given under this paragraph, the Department shall publish notice
of the consent in such manner as may be prescribed and send copies of the
instrument containing the consent to such bodies or persons as may be
prescribed.
(6) It shall be the duty of the
Department to consider any representations with respect to a discharge
consent under this paragraph as are made to it in such manner, and within
such period, as may be prescribed and have not been
withdrawn.
(7) Where notice of a discharge
consent is published by the Department under sub-paragraph (5) the
Department shall be entitled to recover the expenses of publication from
the person on whom the instrument containing the consent was
served.
Revocation of consents and alteration and imposition of
conditions
5.
- (1) The Department may from time to time review any discharge
consent given under paragraph 2 or 4 and the conditions (if any) to which
the consent is subject.
(2) Subject to such
restrictions on the exercise of the power conferred by this sub-paragraph
as are imposed under paragraph 6, where the Department has reviewed a
discharge consent under this paragraph, it may by a notice served on the
person making a discharge in pursuance of the consent -
(a) revoke the consent;
(b) make modifications of the
conditions of the consent; or
(c) in the case of an unconditional
consent, provide that it shall be subject to such conditions as may be
specified in the notice.
(3) If on a review under sub-paragraph (1) it
appears to the Department that no discharge has been made in pursuance of
the discharge consent to which the review relates at any time during the
preceding 12 months, the Department may revoke the discharge consent by a
notice served on the holder of the
consent.
(4) If it appears to the
Department appropriate to do so -
(a) for the purposes of enabling Her Majesty's Government in the
United Kingdom to give effect to any Community obligation or to any
international agreement to which the United Kingdom is for the time
being a party;
(b) for the protection of public health or of
flora and fauna dependent on an aquatic environment; or
(c) in
consequence of any representations made to it or otherwise,
the Department may, subject to such restrictions on the exercise of the
power conferred by virtue of paragraph (c) as are imposed under paragraph
6, at any time, in relation to a discharge consent given under paragraph 2
or 4, by a notice served on the person making a discharge in pursuance of
the consent, do anything mentioned in sub-paragraph (2)(a) to
(c).
(5) Where the Department, in relation
to a discharge consent given under paragraph 2 or 4, has served a notice
on any person by virtue of sub-paragraph (2) or (4) (except a notice which
only revokes a consent), the Department shall give notice stating the
effect of the first-mentioned notice on -
(a) the Foyle Fisheries Commission where the discharge to which the
notice relates is made or to be made in the Londonderry Area;
(b)
the Fisheries Conservancy Board for Northern Ireland where the discharge
to which the notice relates is made or to be made outside that
area.
(6) The Department shall be liable to pay
compensation to any person in respect of any loss or damage sustained by
that person as a result of action taken by the Department in relation to
any discharge consent by virtue of sub-paragraph (4)(b)
if -
(a) in taking that action the Department does anything which, apart
from sub-paragraph (4), it would be precluded from doing by a
restriction imposed under paragraph 6; and
(b) the action is not
shown to have been taken in consequence of -
(i) a change of circumstances which could not reasonably have been
foreseen at the beginning of the period to which the restriction
relates; or
(ii) consideration by the Department of material
information which was not reasonably available to the Department at
the beginning of that period.
(7) For the purposes of sub-paragraph (6)
information is material, in relation to a discharge consent, if it relates
to any discharge made or to be made by virtue of the consent, to the
interaction of any such discharge with any other discharge or to the
combined effect of the matter discharged and any other matter.
Restriction on variation and revocation of consent and previous
variation
6.
- (1) Each instrument signifying the consent of the Department
under paragraph 2 or 4 shall specify a period during which no notice by
virtue of paragraph 5(2) or (4)(c) shall be served in respect of the
consent except, in the case of a notice doing anything mentioned in
paragraph 5(2)(b) or (c), with the agreement of the holder of the
consent.
(2) Each notice served by the
Department by virtue of paragraph 5(2) or (4)(c) (except a notice which
only revokes a consent) shall specify a period during which a subsequent
such notice which alters the effect of the first-mentioned notice shall
not be served except, in the case of a notice doing anything mentioned in
paragraph 5(2)(b) or (c), with the agreement of the holder of the
discharge consent.
(3) The period specified
under sub-paragraph (1) or (2) in relation to any discharge consent shall
not, unless the person who proposes to make or makes discharges in
pursuance of the consent otherwise agrees, be less than the period of 4
years beginning -
(a) in the case of a period specified under sub-paragraph (1), with
the day on which the discharge consent takes effect; and
(b) in
the case of a period specified under sub-paragraph (2), with the day on
which the notice specifying that period is served.
(4) A restriction imposed under sub-paragraph
(1) or (2) shall not prevent the service by the Department of a notice by
virtue of paragraph 5(2) or (4)(c) in respect of a discharge consent given
under paragraph 4 if -
(a) the notice is served not more than 3 months after the beginning
of the period prescribed under paragraph 4(6) for the making of
representations with respect to the consent; and
(b) the
Department considers, in consequence of any representations received by
it within that period, that it is appropriate for the notice to be
served.
(5) A restriction imposed under sub-paragraph
(1) or (2) shall not prevent the service by the Department of a notice by
virtue of paragraph 5(2)(b) or (c) or (4)(c) in respect of a discharge
consent given under paragraph 4 if the holder has applied for a variation
under paragraph 7.
Applications for
variation
7.
- (1) The holder of a discharge consent given under paragraph 2
or 4 may apply to the Department, on a form provided for the purpose by
the Department, for the variation of the
consent.
(2) The provisions of paragraphs 1
to 3 shall apply (with the necessary modifications) to applications under
sub-paragraph (1), and to the variation of consents in pursuance of such
applications, as they apply to applications for, and the grant of,
discharge consents.
Transfer of consents
8. - (1) A discharge consent given under paragraph 2 or
4 may be transferred by the holder to a person who proposes to carry on
the discharges in place of the holder.
(2)
On the death of the holder of a discharge consent given under paragraph 2
or 4, the consent shall, subject to sub-paragraph (4), be regarded as
property forming part of the deceased's personal estate, whether or not it
would be so regarded apart from this sub-paragraph, and shall accordingly
vest in his personal representatives.
(3)
If a bankruptcy order is made against the holder of a discharge consent
given under paragraph 2 or 4, the consent shall, subject to sub-paragraph
(4), be regarded for the purposes of any of Parts VIII to X of the
Insolvency (Northern Ireland) Order 1989 (insolvency of individuals;
bankruptcy) as property forming part of the bankrupt's estate, whether or
not it would be so regarded apart from this sub-paragraph, and shall
accordingly vest as such in the trustee in
bankruptcy.
(4) Notwithstanding anything in
the foregoing provisions of this paragraph, a discharge consent given
under paragraph 2 or 4 (and the obligations arising out of, or incidental
to, such a consent) shall not be capable of being
disclaimed.
(5) A discharge consent given
under paragraph 2 or 4 which is transferred to, or which vests in, a
person under this paragraph shall have effect on and after the date of the
transfer or vesting as if it had been granted to that person under
paragraph 2 or 4, subject to the same conditions as were attached to it
immediately before that date.
(6) Where a
discharge consent given under paragraph 2 or 4 is transferred under
sub-paragraph (1), the person from whom it is transferred shall give
notice of that fact to the Department not later than the end of the period
of 21 days beginning with the date of the
transfer.
(7) Where a discharge consent
given under paragraph 2 or 4 vests in any person as mentioned in
sub-paragraph (2) or (3), that person shall give notice of that fact to
the Department not later than the end of the period of 15 months beginning
with the date of the vesting.
(8)
If -
(a) a discharge consent given under paragraph 2 or 4 vests in any
person as mentioned in sub-paragraph (2) or (3), but
(b) that
person fails to give the notice required by sub-paragraph (7) within the
period there mentioned,
the consent, to the extent that it permits the making of any
discharges, shall cease to have effect.
(9)
A person who fails to give a notice which he is required by sub-paragraph
(6) or (7) to give shall be guilty of an offence and
liable -
(a) on conviction on indictment, to a fine or to imprisonment for a
term not exceeding 2 years, or to both;
(b) on summary
conviction, to a fine not exceeding the statutory maximum.
Article 23(4).
ORDERS CONFERRING COMPULSORY POWERS FOR EXECUTING
WORKS
1. Before making an
order under Article 23(2) the Department shall prepare a draft of the
order and publish at least once in each of two successive weeks, in one or
more newspapers circulating in the locality where the waterway or land to
which the order relates is situated or the engineering or building
operations are to be carried out, a notice -
(a) stating the general effect of the order as prepared in
draft;
(b) specifying a place where a copy of the draft order and
of any relevant map or plan may be inspected by any person free of
charge at all reasonable times during the period of 28 days beginning
with the date of the first publication of the notice;
(c) stating
that any person may, within that period, by notice in writing to the
Department object to the making of the order.
2. Not later than the date on which the
notice is first published in pursuance of paragraph 1, the Department
shall serve a copy of the notice on every person appearing to the
Department to have an estate in any land which may be substantially
affected by the exercise of any compulsory powers if the order were made
in the terms of the draft which may be inspected under paragraph
1(b).
3. The Department shall also
publish in the Belfast Gazette a notice stating that the draft order has
been prepared, specifying a place where a copy of the draft order and of
any relevant map or plan may be inspected, and giving the name of any
newspaper in which the notice under paragraph 1 was published and the date
of an issue containing the notice.
4. The Department shall, at the request of any person, furnish him
with a copy of the draft order on payment of such charge as the Department
thinks reasonable.
5. The
Department may make the order in the terms of the draft or in those terms
as altered in such manner as it thinks fit; but where the Department
proposes to make any significant alteration and considers that any persons
are liable to be adversely affected by it, the Department shall give and
publish such additional notices as appear to the Department to be
necessary for informing those persons of the effect of the
alterations.
6. - (1) If
before the end of the period of 28 days referred to in paragraph 1, or of
25 days from the publication in the Belfast Gazette of the notice under
paragraph 3, or of any period specified in notices under paragraph 5,
notice in writing of an objection is received by the Department from any
person on whom a notice is served under this Schedule, or from any other
person appearing to the Department to be affected by the order as prepared
in draft or as proposed to be altered, and the objection is not met or
withdrawn, the Department, before making the order shall, unless it is
satisfied that the objections are solely of a frivolous or vexatious
nature or relate solely to the amount of compensation, cause an inquiry to
be held by the Appeals Commission and consider the report on that
inquiry.
(2) Sub-paragraphs (2) and (3) of
paragraph 3 of Schedule 1 apply in relation to an inquiry under this
paragraph as they apply in relation to an inquiry under sub-paragraph (1)
of that paragraph.
7.
- (1) If the value of any estate in land to which this
sub-paragraph applies is depreciated by the coming into operation of the
order or anything done in pursuance of it, the person entitled to that
estate shall be entitled to compensation from the Department of an amount
equal to the amount of the
depreciation.
(2) Sub-paragraph (1) applies
to any estate in any land in respect of which compulsory powers are
exercisable by virtue of the order, and to any estate in any land which,
on the date on which the order comes into operation, is held with any of
that land.
(3) Where the person entitled to
an estate in land to which sub-paragraph (1) applies sustains loss or
damage which -
(a) is attributable to the coming into operation of the order or
anything done in pursuance of it; and
(b) does not consist of
depreciation of the value of his estate; and
(c) is loss or
damage for which, if his estate in the land in respect of which
compulsory powers are exercised by virtue of the order had been vested
under Article 24 in pursuance of a vesting order made before the date on
which the order comes into operation, he would have been entitled to
compensation by way of compensation for disturbance;
he shall be entitled to compensation from the Department in respect of
that loss or damage, in addition to compensation under sub-paragraph
(1).
(4) A person who suffers damage (other
than the depreciation of an estate in land) which is attributable to the
operation of the order or anything done in pursuance of it shall be
entitled to recover compensation from the Department in respect of the
damage.
(5) Sections 31 to 33(1) of the
Land Development Values (Compensation) Act (Northern Ireland) 1965 shall
have effect in relation to compensation payable by virtue of this
paragraph as they have effect in relation to Part III compensation within
the meaning of that Act or for the purposes of Part III of that Act,
subject to the modification that for any reference to a compensatable
estate there shall be substituted a reference to any estate in
land.