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Planning Advice Note 51: planning, environmental protection and regulation

Published: 20 Oct 2006
Part of:
Building, planning and design
ISBN:
0 7559 6259 1

Planning Advice Note (PAN) 51, (revised in 2006) supports the existing policy on the role of the planning system in relation to the environmental protection regimes.

66 page PDF

295.6kB

66 page PDF

295.6kB

Contents
Planning Advice Note 51: planning, environmental protection and regulation
Annex: Environmental Protection Regimes

66 page PDF

295.6kB

Annex: Environmental Protection Regimes

This Annex does not provide a definitive statement of the statutory framework, nor does it offer an authoritative interpretation of the legislation.

Introduction

1. Planning and environmental protection systems are separate, but complementary. For example, the planning system complements some pollution control policies by regulating the location of development, the control of some operations, and also, what happens after a development or use has ceased to operate. In practice, however, planning and environmental protection regimes have different powers and functions that can on occasions overlap, and it is in everyone's interest to minimise this. This Annex outlines ten environmental protection regimes that are administered by a number of organisations, and through a variety of mechanisms, including licensing and other authorisation procedures. It aims to help planning authorities, developers and the public understand the current range of environmental protection controls.

2. The environmental protection regimes included in this Annex are:

Pollution Prevention and Control
Protection of Water Environment (Controlled Activities)
Drinking Water Quality - public and private water supplies
Contaminated Land
Radioactive Substances
Statutory Nuisance including Noise
Litter
Light
Air Quality
Environmental Noise

Waste management licensing is addressed in National Planning Policy Guideline ( NPPG)10 Planning and Waste Management (under review) and PAN 63 which provides advice on the relationship with the planning system in paragraphs 10 - 12.). Emissions from landfill sites and incinerators are subject to licencing under PPC (see below). For controls administered by Scottish Natural Heritage ( SNH) and the Health and Safety Executive ( HSE) reference should be made to the main text.

3. The Annex has been designed so the environmental protection regimes have the same presentational format. The description of each regime is structured so that, where applicable, it begins with an introduction, followed by the main regulator(s), legislation, types of monitoring and fees, charges and registers. Exceptions have been made where more specific details are required. Public rights of access to environmental information are laid out in the Environmental Information Regulations 1992.

Pollution Prevention and Control ( PPC)

Introduction

1.1 The Pollution Prevention and Control (Scotland) Regulations 2000 ( PPC), which implement the Integrated Pollution Prevention and Control EC Directive, are designed to control emissions from industrial installations. The industries regulated under PPC include energy industries, production and processing of metals, mineral industries, chemical industries, waste management, food and drinks manufacture, paper and pulp manufacture, textiles and intensive farming. PPC replaces the IPC and LAPC regimes (under Part I of the Environmental Protection Act 1990) immediately for new and substantially changed installations, and for existing installations between 2001 and 2007.

1.2 The main objectives of PPC are:

  • to prevent or reduce emissions to air, water and land from installations;
  • to control emissions principally through setting emission limit values based on an assessment of Best Available Techniques ( BAT); and
  • to control the amount of waste produced by an installation, energy efficiency, noise, prevention of accidents and restoration of the site after use.

1.3 The underlying principle of PPC is that operators of permitted processes are required to use BAT. The determination of BAT should consider costs and advantages of different solutions to environmental problems, balancing a range of environmental factors across the life of the installation. BAT should consider both the technologies used and the way in which the installation is designed, built, maintained, operated and decommissioned.

Regulator

1.4 PPC is implemented and enforced by the Scottish Environment Protection Agency ( SEPA). SEPA regulates both Part A installations (activities that involve emissions to air, water and land) and Part B installations (emissions to air only).

Legislation

1.5 PPC is implemented by the Pollution Prevention and Control Act 1999. The detailed definitions of the industrial activities subject to the PPC are set out in Schedule 1 to the PPC Regulations ( SSI 2000 No. 323, as amended). Under regulation 6 of these regulations, it is an offence for an operator of an installation or mobile plant carrying out an activity prescribed in Schedule 1 to operate without a permit from SEPA. Anyone considering operating such a process should contact SEPA, who will advise on the procedure for applying for a permit. PPC permits may contain conditions covering the operation of the process, emission limit values and monitoring requirements. An operator is also required to notify SEPA of any proposed substantial change in the operation of an installation.

1.6 Regulation 17 of the PPC Regulations allows SEPA to serve a revocation notice on an operator, and under regulation 19 an enforcement notice if SEPA believes an operator has contravened or is likely to contravene any permit condition. Regulation 20 enables SEPA to issue a suspension notice if it believes that the operation of an installation "involves a risk of serious pollution". Regulation 30 sets out the offences under the regulations, which include operating an installation or mobile plant unless authorised by a permit granted by SEPA; failing to comply with a condition of a permit; failing to notify SEPA of a proposed change in the operation of an installation; failing to comply with the requirements of an enforcement notice or suspension notice; and making a false statement.

1.7 Regulation 22 allows operators to appeal to the Scottish Ministers in certain circumstances. These include where there has been a refusal to grant a permit; where an operator disagrees with the permit conditions; and where a revocation, variation, enforcement or suspension notice has been served.

Monitoring

1.8 Monitoring to demonstrate compliance with the conditions in a permit may be carried out by a combination of self-monitoring, in which case the conditions will include a requirement to monitor the process, and monitoring by regular inspection visits by SEPA.

Fees, Charges and Registers

1.9 Fees and charges are due to SEPA when an initial application for a permit is made to SEPA, and on an annual basis. SEPA's PPC charging scheme is detailed on its website ( www.sepa.org.uk).

1.10 Details of PPC permits are available for public inspection on registers maintained by SEPA. This includes details of the process, the results of routine monitoring and any comments made by statutory consultees. Information can be excluded from public registers on the grounds of commercial confidentiality and national security.

Protection of the Water Environment (Controlled Activities)

Introduction

2.1 A new wider system of control to protect the water environment from harm came into effect on April 1 2006 under The Water Environment (Controlled Activities) (Scotland) Regulations 2005 ( CAR). Controlled activities include all discharges of matter to the water environment, abstractions of water, impoundments of water and river engineering activities. The water environment includes all surface waters ( e.g. rivers and lochs), transitional waters ( e.g. estuaries), coastal waters (up to 3 miles out), groundwaters and wetlands.

2.2 Previous water pollution controls under COPA 1974 and the groundwater regulations have been replaced by CAR. Controls on diffuse pollution are expected to be made during 2006/07.

2.3 The Regulator for the protection of the water environment is SEPA. It is responsible for ensuring that all controlled activities are authorised under CAR or hold a relevant authorisation.

2.4 All authorisations must ensure adequate protection of the water environment and meet the objectives of the Water Framework Directive, the Water Environment and Water Services Act and the relevant River Basin Management Plan.

Legislation

2.5 The protection of the water environment is governed by several pieces of European and domestic legislation. The principal controls are covered within The Water Environment (Controlled Activities) (Scotland) Regulations 2005, also known as The Controlled Activities Regulations or CAR.

2.6 The Controlled Activities Regulations:

  • introduce a system of proportionate risk based controls for controlled activities to protect the water environment from harm and to promote the sustainable use of water;
  • introduce a requirement for all controlled activities to be authorised by virtue of either a general binding rule (as defined within CAR), a registration or a licence, unless the activity is regulated by a relevant authorisation such as a permit under the Pollution Prevention and Control Regulations 2000, as amended or a Waste Management Licence;
  • list controlled activities as:
    • discharge of matter liable to cause pollution to groundwater, wetlands, rivers, lochs, estuaries and coastal waters;
    • discharge, disposal or tipping onto land of substances listed in the Annex of the Groundwater Directive (80/68/ EEC);
    • abstraction of water from groundwater, wetlands, rivers, lochs, estuaries and coastal waters;
    • impoundment of water affecting wetlands, rivers, lochs, estuaries and coastal waters;
    • engineering activities directly affecting rivers, lochs and wetlands; and
    • groundwater recharge;
  • enable SEPA to take into account any management agreements that may exist between water users while determining any application for an authorisation;
  • define offences such as:
    • failing to comply with or contravening a general binding rule;
    • failing to comply with or contravening a registration of licence, including any condition imposed;
    • failing to comply with an enforcement notice issued;
  • enable SEPA to serve a works notice requiring the person responsible to take action (including the cessation of that activity) to prevent impact occurring or cease ongoing impact;
  • enable SEPA to carry out works to prevent impact occurring or cease ongoing impact; and
  • allow for Appeals to be made to Scottish Ministers in respect of conditions attached to an authorisation or where SEPA refuses an authorisation.

2.7 Any person found guilty of any such offence is liable to imprisonment or a fine of up to £40,000.

2.8 In administering and enforcing the Controlled Activities Regulations SEPA must apply the requirements of the following legislation:

  • The Water Framework Directive;
  • The Groundwater Directive (80/68/ EEC);
  • The Water Environment and Water Services Act 2003;
  • The Water Environment (Water Framework Directive) (Northumbria River Basin District) Regulations 2003;
  • The Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004; and
  • The Water Environment (Oil Storage) (Scotland) Regulations 2006.

Other Legislation

2.9 In administering and enforcing the Controlled Activities Regulations SEPA must have regard to, among others, the following pieces of legislation.

2.10 The Bathing Water (Classification) (Scotland) Regulations 1991:

  • enable Scottish Ministers to identify waters where bathing is explicitly authorised or where bathing is not prohibited and is traditionally practised by a large number of bathers; and
  • set quality standards in the form of maximum or minimum values for specific microbiological, physical and chemical characteristics.

2.11 SEPA monitors the quality of all identified bathing waters against the mandatory and guideline standards in the Regulations during the defined bathing season from the start of June until the middle of September.

2.12 The Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Regulations 2003 ( SSAFO):

  • require persons with control of a crop being made into silage or control of livestock slurry to take precautions to prevent pollution; and
  • set requirements for the standards and capacity of facilities for the storage of silage, effluent, slurry and agricultural fuel oil.

2.13 The Water Environment (Oil Storage) (Scotland) Regulations 2006

  • set design standards for the storage of oil, both in fixed and mobile containers, and;
  • include agricultural fuel oil, previously under the control of SSAFO regulations.

2.14 The Surface Waters (Dangerous Substances) (Classification) (Scotland) Regulations 1990 and 1992:

  • set Environmental Quality Standards ( EQS) for the classification of waters where certain List I dangerous substances (likely to be toxic or to bioaccumulate) may be discharged.

2.15 SEPA controls discharges containing these substances by setting maximum concentrations to be allowed in individual discharges and monitoring them to ensure the discharges comply.

2.16 The Urban Waste Water Treatment (Scotland) Regulations 1994:

  • require the water authorities to provide, by certain dates, systems for the collection of urban waste water and facilities for its treatment. The required standard of treatment of the waste water is determined by a combination of the size of the pollution load, as defined by the 'population equivalent', and the type and sensitivity of the receiving water; and
  • enable Scottish Ministers to designate certain waters as high natural dispersion areas ( HNDA's) or sensitive areas, subject to 4-yearly review.

2.17 Provision of secondary treatment is the normal standard of treatment. However, discharges which are in a HNDA may be subjected to less stringent treatment provided comprehensive studies indicate that the discharge, which receives at least primary treatment, will not adversely affect the environment. Such studies must be repeated at least every 4 years. SEPA sets consent conditions to suit the level of treatment required and monitors the discharges to verify compliance.

2.18 The Protection of Water Against Agricultural Nitrate Pollution (Scotland) Regulations 1996 and legislation covering the subsequent designations (2002) and action programmes 2003:

  • protect waters against pollution caused by nitrates from agricultural activity; and
  • require the Member States (Scottish Ministers) to identify waters polluted by nitrates from agricultural sources and designate the land draining into these waters as Nitrate Vulnerable Zones ( NVZs). Farmers in the zones will be required to undertake action plans to reduce nitrate pollution from agriculture.

2.19 The Shellfish Directive 79/923/ EEC and Freshwater Fish Directive 78/659/ EEC:

  • protect or improve waters to support shellfish and freshwater fish life as salmonid or cyprinid waters. Requires the Member State (Scottish Ministers) to designate such waters and set values for physical, chemical, biological and microbiological parameters.

2.20 SEPA monitors the waters and if necessary ensures that a programme to reduce pollution is implemented and that designated waters conform.

Monitoring

2.21 Monitoring of the quality of all inland waters (rivers, lochs and groundwaters), estuaries and coastal waters is carried out by SEPA. Monitoring of the authorised activities may be carried out by SEPA or by the operator depending on the type and scale of the activity. It is likely that post WFD, other parties will also become involved in monitoring to assess the water environment due to the wider range of parameters to be assessed and the wider spread of expertise and experience required to do so.

Fees, Charges and Registers

2.22 Fees and charges are due to SEPA when an initial application for an authorisation is made and in certain cases on an annual basis. SEPA's Water Environment (Controlled Activities) fees and charges

  • scheme is detailed on its website ( www.sepa.org.uk). For those aquatic discharges licensed under IPC and PPC, fees and charges are due to SEPA, as described for IPC/ PPC in paragraph 1.9 above.

2.23 Details of authorisations are available for public inspection on registers maintained by SEPA including:

  • details of any application made to SEPA;
  • any notices served during determination of the application;
  • details of any advertisement placed during determination of an application;
  • any comments made by statutory consultees;
  • details of all authorisations granted, deemed to be granted or imposed by SEPA;
  • details of any enforcement notices served;
  • results of routine monitoring; and
  • details of convictions for offences under CAR
  • Information can be excluded from public registers on the grounds of commercial confidentiality and national security.

2.24 Where Scottish Ministers have designated certain areas for specific pollution control purposes for example; nitrate vulnerable zones ( NVZs); sensitive and high natural dispersion areas ( HNDAs), maps of these designated areas must be available for public inspection (normally at SEPA offices).

Drinking Water Quality

Introduction

3.1 Current UK Drinking Water quality requirements stem from the EC Drinking Water Directive of 3 November 1998 (98/83/ EC) relating to the quality of water intended for human consumption.

Public Water Supplies

Regulator

3.2 The regulator for the quality of public drinking water supplies is the Drinking Water Quality Regulator for Scotland appointed under Section 7 of the Water Industry (Scotland) Act 2002. Scottish Water must supply wholesome water for domestic purposes. It is a criminal offence to supply water unfit for human consumption. Local authorities must take appropriate steps to keep themselves informed about the wholesomeness of public water supplies in their area and notify Scottish Water if not satisfied. The Drinking Water Quality Regulator must take enforcement action against Scottish Water if it fails in its duty to supply wholesome water unless the failure is trivial or Scottish Water is complying with a legally binding undertaking to remedy the matter.

Legislation

3.3 The Water Supply (Water Quality) (Scotland) Regulations 2001:

  • define wholesomeness by setting standards, prescribed concentrations or values for chemical and microbiological parameters;
  • set, and define, the supply zone as the basic unit for quality monitoring;
  • require Scottish Water to monitor the quality of their supplies;
  • specify detailed sampling requirements for samples taken at taps within supply zones, at service reservoirs and at water treatment works;
  • make provision whereby, taking account of public health risks, Scottish Ministers may authorise a temporary departure from the standards where the water is not of the required quality; and
  • require Scottish Water to publish an annual report and keep a public register of water quality.

Other legislation

3.4 The Surface Waters (Abstraction for Drinking Water) (Classification) (Scotland) Regulations 1996:

  • prescribe a system for classifying the quality of inland waters according to their suitability for abstraction for supply as drinking water, in implementation of Directive 75/440/ EEC (quality required of surface water intended for the abstraction of drinking water);
  • provide mandatory values for classifications DW1, DW2 and DW3 in Schedule 1 and guideline values in Schedule 2; and
  • incorporate the methods of measurement and frequency of sampling and analysis for those values, laid down in Directive 79/869/ EEC (methods of measurement and frequencies of sampling and analysis of surface water intended for the abstraction of drinking water).

Monitoring

3.5 The administration of the Drinking Water Quality Regulations is carried out by the Drinking Water Quality Division of the Scottish Executive. The Division carries out a range of functions on behalf of the Scottish Ministers.

Private Water Supplies

Regulator

3.6 The regulator for the water quality of private water supplies is the local authority in whose area the supply is located. Local authorities must take appropriate steps to keep themselves informed about the wholesomeness of private water supplies in their area.

Legislation

3.7 The Private Water Supplies (Scotland) Regulations 1992:

  • define wholesomeness in the same manner and prescribe the same standards as for public supplies;
  • require local authorities to classify private supplies according to size and use; and
  • require local authorities to monitor private supplies in their area according to classification.

The Scottish Executive plans to bring strengthened Regulations into force at the end of 2005 to implement the EC Drinking Water Directive in respect of private water supplies.

3.8 The Water (Scotland) Act 1980 requires local authorities to secure improvements to private supplies if they consider them necessary.

Monitoring

3.9 The Drinking Water Quality Regulator checks that Local Authorities are complying with the requirements of the 1992 Regulations including:

  • classification of private water supplies into one of 11 classes according to size, nature and use of the supply and the annual review of the classification;
  • the collection and provision of information;
  • the sampling of supplies in accordance with their class; and
  • the analytical arrangements including analytical quality control.

Public and Private Water Supplies

Groundwater Protection

3.10 Groundwater is an important resource which is susceptible to the effects of contamination that could result from the failure to prevent or control the release of leachate from landfill sites, other point sources or contaminated land, etc. Activities liable to cause pollution of groundwater will be mainly regulated via the Controlled Activities Regulations 2005. SEPA have produced a Groundwater Protection Policy which aims to provide a sustainable future for Scotland's groundwater resources by protecting legitimate uses of groundwater and providing a common SEPA framework to:

  • protect groundwater quality by minimising the risks posed by point and diffuse sources of pollution; and
  • maintain the groundwater resource by influencing the design of abstractions and developments, which could affect groundwater quality.

The policy is available from SEPA's website: www.sepa.org.uk/groundwater

Fees, Charges and Registers

3.11 Under the private water supply regulations, a local authority may charge for sampling and analysis of a private water supply.

3.12 Associated guidance to the 1992 Regulations given in SOEnD Circular 20/1992 The Private Water Supplies (Scotland) Regulations 1992: Guidance to Local Authorities, recommends that local authorities maintain public registers of information about private water supplies in their area, and asks local authorities to supply information they hold about private water to the Department.

Contaminated Land

Introduction

4.1 Environmental pollution arising from contaminated land was in the past dealt with either by actions carried out in common law, in relation to nuisance or negligence (duty of care) or under statute law through the Control of Pollution Act 1974, the Environmental Protection Act 1990 and the Public Health (Scotland) Act 1897. The Environment Act 1995 repealed the statutory nuisance provisions of the 1897 Act and replaced them by extending Part III of the Environmental Protection Act 1990 to Scotland.

4.2 The Environment Act 1995, through section 57, introduced a risk-based definition of contaminated land, the establishment of which requires connectivity between a source, a pathway and a target, and also involves:

  • a test for significant harm ( i.e. harm to human health, protected habitats and property); and
  • a test for pollution of controlled waters.

4.3 The Environment Act 1995 also applies the 'polluter pays' and 'suitable for use' principles.

  • Polluter Pays Principle - this is intended to allocate responsibility for the cost of remediation of contaminated land among the 'polluters' (having caused or knowingly permitted contamination), landowners and taxpayers.
  • Suitable for Use Principle - this requires remediation action only to prevent or remedy significant harm or pollution of the water environment, where this would be proportionate, taking into account the level of risk, cost of remedial action and availability of means to deal with the problem.. If land or buildings are to be developed, including a change of use, the issue of contamination may continue to be a material consideration to be addressed through the planning system.

Regulators

4.4 The primary regulatory role under the contaminated land regime rests with the local authorities. The local authorities are required to:

  • cause their areas to be inspected from time to time in order to identify contaminated land;
  • designate land as 'contaminated land' and where appropriate as, 'special sites';
  • consult on what remediation might be required in each case;
  • require remediation to take place (through service of formal Remediation
  • Notice if necessary);
  • record information about remediation carried out under the regime;
  • identify 'appropriate persons' responsible for remediation; and
  • exclude certain groups and apportion liabilities.

4.5 The Scottish Environment Protection Agency ( SEPA) has four principal roles under the regime:

  • to provide site specific guidance to local authorities on the identification and remediation of contaminated land;
  • to act as regulator for a defined category of 'special sites';
  • to compile regular 'national reports' on contaminated land; and
  • to sponsor technical research and act as a centre of expertise.

Legislation

4.6 The contaminated land regime is implemented by section 57 of the Environment Act 1995 which inserted a new Part IIA into the Environmental Protection Act 1990.

4.7 In the Environmental Protection Act 1990, as amended, Section 78B places a duty on the local authority to cause its area to be inspected from time to time to identify contaminated land/special sites. Section 78E outlines the procedures for serving a remediation notice whilst the information to be recorded on public registers is outlined in Section 78R.

4.8 The Act sets out the principles but the required process of risk assessment means that it is simply not possible to prescribe details of the regulatory requirements which might be appropriate in all possible circumstances. They can be determined only in the light of detailed professional, technical judgements. Scottish Executive ( ERAD) Circular 1/2000 sets out a summary of policy and provides statutory guidance on:

  • the definition of contaminated land;
  • the identification of contaminated land;
  • remediation of contaminated land requirements;
  • exclusion from and apportionment of liability for remediation; and
  • the recovery of costs of remediation.

4.9 The Contaminated Land (Scotland) Regulations 2000 cover detailed matters such as the definition of 'special sites', grounds for appeal against remediation notices, and compensation for providing access to land.

4.10 The Water Environment (Controlled Activities) (Scotland) Regulations 2005 control discharges (from non-prescribed processes) to the water environment (rivers, groundwaters, estuaries etc.) and therefore also have a part to play in relation to pollution of the water environment by contaminated land.

Monitoring

4.11 A Risk Assessment, which usually includes site investigations involving soil and water sampling plus analyses to model and quantify risks to specified receptors, is normally required in order to identify contaminated land under Part 11A. PAN 33-Development of Contaminated Land explains the link to an equivalent approach between Part 11A requirements and the contaminated land risk assessments required to be submitted as part of planning applications. Verification monitoring and assessments are also typically required after remediation has been carried out, depending on the remediation techniques used, to confirm that remediation requirements have been achieved.

4.12 In the past, site contamination was typically assessed against chemical trigger levels published in the Inter-Departmental Committee on the Redevelopment of Contaminated Land, Guidance Note 59/83. This has been withdrawn and replaced with new updated guideline values obtained from recent research work. The CLEA package comprising Contaminated Land Reports, CLEA Software 2002 and Soil Guideline Values is considered to be the key instrument for technical assessment of health risks from contaminated land. Further reports have been issued and further research is ongoing. However, the CLEA package does not consider the risk to the water environment from contaminated land. Separate assessment of these risks is needed.

4.13 Monitoring of surface and groundwater parameters is a useful method of remote monitoring in relation to contamination effects both before and after remediation, as is air quality monitoring. Some of this information may be available from SEPA's duties regarding air and surface water and quality monitoring under the Environmental Protection Act 1990, as amended by the Environment Act 1995, section 33 (2).

Fees, Charges and Registers

4.14 Details of a cost recovery scheme whereby the enforcing authority can recover costs of remediation works is contained in Circular 1/2000 Statutory Guidance.

4.15 The requirement of public remediation registers is set out in Section 78R of the Environment Act 1995. The Remediation Registers are to include (amongst others) particulars of:

  • remediation notices served by the enforcing authority, details of these and upon whom they have been served;
  • appeals against such remediation notices;
  • remediation statements or remediation declarations;
  • notifications of claimed remediation;
  • designation (or termination) of any land as a special site; and
  • convictions for not complying with a remediation notice or other offences under section 78M as may be prescribed.

4.16 The following shall be excluded from the Remediation Registers:

  • information affecting national security (section 78S); and
  • certain confidential information (Section 78T).

Radioactive Substances

Introduction

5.1 Responsibility for radioactive waste management is shared between the Government, regulators and the producers of the waste itself. The Government decides on matters of overall policy; the regulators ensure that the policy is implemented; and the producers of waste must manage it in ways which meet the regulatory requirements. In accordance with the 'polluter pays' principle and accounting

  • standards, waste producers must also ensure that adequate financial provision is made to cover existing and future liabilities.

5.2 The Government's policies are set out in its Review of Radioactive Waste Management Policy 1995 (Cm 2919), which revised and updated policies to emphasise the respective roles of Government, regulators and producers and owners of waste and to apply the concept of sustainable development and its supporting principles.

Regulators

5.3 There are two authorities that regulate the use of radioactive substances in Scotland:

  • SEPA regulates the keeping and use of radioactive material registered under the Radioactive Substances Act 1993 for that purpose and for the accumulation and disposal of radioactive wastes by persons authorised under that Act;
  • The Health and Safety Executive ( HSE) enforces the Health and Safety at Work etc. Act 1974, the Ionising Radiations Regulations 1999 made under that Act and the Nuclear Installations Act 1965. The 1965 Act is enforced by Her Majesty's Nuclear Installations Inspectorate ( HMNII), an arm of HSE, which acts, in Scotland, on behalf of Scottish Ministers.

Legislation

5.4 There are three main pieces of UK legislation governing the way in which radioactive substances are controlled and disposed.

  • The Nuclear Installations Act 1965 established a licensing regime regulating activities on nuclear sites to ensure the safety of both workers and members of the public in respect of hazards peculiar to the nuclear industry other than from routine discharges to the environment.
  • The Ionising Radiations Regulations 1999 establishes a framework for ensuring that exposure to ionising radiation arising from work activities, whether from man-made or natural radiation and from external or internal radiation, is kept as low as reasonably practicable and does not exceed dose limits specified for individuals.
  • The Radioactive Substances Act 1993 regulates the keeping and use of radioactive materials and authorises the accumulation and disposal of radioactive waste.

5.5 Under the 1993 Act an authorisation may be issued with limitations and conditions designed to meet all relevant national and internationally accepted standards. In general, all authorisations impose quantitative limits on total amounts of radioactivity to be discharged, and most contain limits on specified radioactive materials. In the case of authorisations for the disposal of radioactive wastes from nuclear sites, operators are generally required to use the best practicable means to reduce the volume and activity in all the waste discharged. It is open to the person directly concerned to appeal to Scottish Ministers against SEPA's decision in certain circumstances, including refusal of an application, limitations or conditions attached to an authorisation, or revocation of an authorisation.

Monitoring

5.6 Radioactive discharges from nuclear sites and their effect on the environment are monitored by the nuclear industry under the terms of their disposal authorisations and backed up by independent monitoring by the regulatory bodies. SEPA has the authority to visit premises and take action, including initiation of legal proceedings through the Procurator Fiscal. One guiding principle in authorising discharges from a particular site is the need to restrict the resulting radiation doses that might be

  • received by the "critical group", since adequate protection of this group will ensure that others are also protected.

5.7 The UK is required to establish the facilities necessary to carry out continuous monitoring of radioactivity levels in the air, water and soil to ensure that it complies with the basic standards of the Euratom Treaty.

Fees, Charges and Registers

5.8 Fees and charges are due to SEPA when an initial application for authorisation is made, and on an annual basis.

5.9 Section 39 of the Radioactive Substances Act 1993 places a requirement on SEPA to allow public access to a wide range of documents in its possession but there is no requirement for SEPA to keep a 'register'. SEPA have recently been directed to restrict certain information in relation to registrations under the Radioactive Substances Act 1993.

Statutory Nuisance including Noise and Odour

Introduction

6.1 Statutory nuisance was first introduced into legislation as a response to the epidemics caused by the poor sanitation and unsatisfactory housing conditions which existed in the large urban areas in the last century. Unhygienic living accommodation, lack of proper sanitation and clean water, food storage/preparation and the inappropriate medical treatment of illness contributed to the widespread incidence of disease. It was not until the realisation that diseases were transmitted by these circumstances, that governments began to legislate for improvement.

6.2 A statutory nuisance, including noise, is defined by the Environmental Protection Act 1990 Part III section 79 (1) (as amended) as:

  • 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;
  • noise that is prejudicial to health or a nuisance and is emitted from a vehicle, machinery or equipment in a street, or in Scotland, road; and
  • any other matter declared by any enactment to be a statutory nuisance.

Regulators

6.3 The main regulators are the local authorities, but in the case of some noise legislation, the police also have powers.

Legislation

6.4 Part III of the Environmental Protection Act 1990 is the primary piece of legislation dealing with noise and nuisance in Scotland. It is administered by local authorities and only applies in relation to premises not covered by IPC and LAPC authorisations under Part I of the Environmental Protection Act 1990 or PPC installations. Under section 80 of the Act, where a local authority is satisfied that a statutory nuisance exists or is likely to occur or recur, it shall serve an abatement notice. The person served with the notice may appeal against the notice to the sheriff within 21 days of the notice being served.

6.5 The earlier relevant provisions in the Public Health (Scotland) Act 1897, and in sections 58 and 59 of the Control of Pollution Act 1974 were repealed by the Environment Act 1995. Other sections of the 1974 Act relating to advertising, the playing of loud speakers, noise from construction sites etc., remain in force. These are also administered by local authorities.

6.6 Additionally, section 54 of the Civic Government (Scotland) Act 1982 allows the police to take action against the playing of 'sound producing devices'. This includes powers to confiscate such equipment as evidence in court proceedings. The Criminal Justice and Public Order Act 1994 also contains powers which allow the police to seize sound equipment. The police also have wide-ranging powers to deal with noise under the common law offence of a breach of the peace, and this is also used in such circumstances.

6.7 New complementary legislation to tackle noise from domestic premises was implemented on 21 February 2005 under the Antisocial Behaviour etc (Scotland) Act 2004. This provides local authorities with flexible and enabling powers to establish noise services within their area for up to 24 hours a day seven days a week, on the basis of breaching set objective noise levels. If a local authority officer determines the offending noise is antisocial and it measures above the set level they will issue a Warning Notice to abate the noise within 10 minutes. If this is ignored the officer can issue a Fixed Penalty Notice of a £100 fine, which is required to be paid within 28 days. If no payment made the case can be referred for prosecution and a £1000 fine on conviction. The Act also gave equipment seizure powers to local authority officers.

Monitoring

6.8 Section 79 of the Environmental Protection Act 1990, imposes a duty on local authorities to inspect their area from time to time to detect statutory nuisances which ought to be dealt with under section 80 of the same Act. They also have a duty to make reasonable steps to investigate complaints of statutory nuisance made to them by a person living within their area.

Fees, Charges and Registers

6.9 There is no system of fees and charges for this regime. Scottish councils keep statistics on noise complaints under a number of categories, including industrial, commercial, domestic, entertainment and construction sites. These are published on an annual basis by the Royal Environmental Health Institute of Scotland.

Odour

6.10 The Scottish Executive introduced new legislation to tackle sewerage nuisance by giving Scottish Ministers powers to issue statutory codes of practice by implementing Sections 25 and 26 of the Water Services etc (Scotland) Act 2005. Sewerage nuisance can refer to odour, discharges, insects or any other thing emanating from the sewerage system. The first code to specifically control odour from waste water treatment works was commenced on 22 April 2006, and also dis-applied Sections 79 to 81 of EPA 1990 relative to sewerage nuisance. The code places a statutory duty of compliance with the code on Scottish Water and its PFI operators at all WWTW in Scotland, except those regulated by SEPA under IPPC control or the Waste Management Licensing regime. The code also places a duty on local authority regulators to monitor compliance. The Guidance on Statutory Code of Practice on Sewerage Nuisance- Assessment and Control from Waste Water Treatment Works-was published on 24 April 2006. It accompanies the Code and includes guidance in Section 10 on planning controls with regard to new plant design. It recommends where WWTW are not subject to IPPC control, the careful use of planning conditions to require inclusion of odour control measures and that establishing operating conditions may be appropriate.

6.11 Planners should refer to The Sewerage Nuisance (Code of Practice) states: When developing new and significantly upgraded WWTW, a detailed review of the proposed design shall be undertaken and shall include a justification for the selection of process technology and controls at the planning and design stage. The design shall incorporate adequate odour containment and treatment provisions.

6.12 Section 79 of the Environmental Protection Act 1990, imposes a duty on local authorities to inspect their area from time to time to detect statutory nuisances which ought to be dealt with under section 80 of the same Act. They also have a duty to make reasonable steps to investigate complaints of statutory nuisance made to them by a person living within their area. Section 26 of the Water Services etc (Scotland) Act 2005 imposes a duty on local authorities to investigate complaints of odour nuisance from WWTW, and inspect WWTW to ensure compliance with new code of practice.

6.13 There is no system of fees and charges for this regime. Scottish Councils keep statistics on nuisance complaints under a number of categories, including industrial, commercial, domestic, entertainment and construction sites. These are published on an annual basis by the Royal Environmental Health Institute of Scotland.

Litter

Introduction

7.1 The control of litter has been the subject of much legislation, for example, the Control of Pollution Act 1974, the Refuse Disposal (Amenity) Act 1978, the Local Government and Housing (Scotland) Act 1982 and the Litter Act 1983. However, it was Part IV of the Environmental Protection Act 1990 which put an unambiguous duty on local authorities and other owners of land to which the public have access in respect to clearance of litter and refuse. Littering is an offence which may be committed only in respect of relevant land, generally that which is public. Depositing refuse illegally on all types of land constitutes the offence of fly-tipping, which is dealt with by Part II of the Environmental Protection Act 1990.

Regulators

7.2 The control of litter is the responsibility of local authorities who may impose:

  • a litter duty on occupiers of other publicly accessible land by designating that land as a Litter Control Area; and
  • requirements on the occupiers of certain types of premises in respect of clearance of litter or refuse outside their premises.

Legislation

7.3 Section 89(1) of the 1990 Act places a duty on certain bodies (a duty body) to keep their relevant land clear of litter and refuse so far as is practicable. The duty applies to:

  • councils;
  • joint boards;
  • the Crown;
  • designated statutory undertakers (broadly railway operators, road transport undertakings (other than licensed taxi or hire car operators) and canal, harbour, port and airport operators);
  • designated educational institutions (broadly universities and publicly funded colleges and schools); and
  • the occupiers of land which has been designated a 'Litter Control Area' under the Litter Control Areas Order 1991.

7.4 In most cases, the relevant land of a duty body is publicly accessible land which is open to the air and which is under the direct control of the duty body. However, in certain circumstances railway operators also have a duty in respect of tracks and track side near stations or in urban areas.

7.5 In addition to litter duty, section 89(2) creates a duty in respect of most roads to keep them clean so far as practicable. Councils have this duty in respect of roads (other than special roads and motorways) which are maintained at public expense. Scottish Ministers have this duty in respect of special roads and motorways, discharged through the Road Operating Companies.

7.6 Duty bodies must have regard to the Code of Practice on Litter and Refuse issued under section 89(1). The Code is currently being revised as a Scotland-only document and it is expected the new version shall be available soon. Duty bodies must also have regard to Directions from the Scottish Ministers as to how to perform the duty of litter clearance, given under s89(6A), as inserted by the Antisocial Behaviour etc (Scotland) Act 2004. Both the Code and any relevant Directions may be cited in any legal proceedings such as those described in paras 7.8 - 7.10 below.

7.7 Apart from establishing duties to clear land, section 87 of the 1990 Act establishes an offence which, broadly stated, is that of dropping anything whatsoever in a public place. Section 88 provides councils and police officers with the option of issuing a fixed penalty rather than seeking a prosecution.

7.8 Under section 91 of the 1990 Act, an individual can apply to the Sheriff Court for a Litter Abatement Order to require a duty body to ensure the removal of litter by which the individual is aggrieved, provided the Court is satisfied that such an order should be made. The Code of Practice and any Directions from the Scottish Ministers shall be admissible evidence in this respect. The individual must give five days notice of his intention to apply for such an Order.

7.9 Under section 92, a council may issue a Litter Abatement Notice on the Crown, designated statutory undertakers, designated educational institutions or occupiers of land subject to a Litter Control Area Notice if their relevant land is defaced by litter or refuse. The Street Litter Control Notice Order 1991 lists the types of premises in respect of which a notice may be issued.

7.10 A person who fails without reasonable excuse to comply with a Litter Abatement Notice or Order is guilty of an offence with a maximum penalty of level 4 (£2,500) together with a further fine of one twentieth of that level for each day on which the offence continues after conviction. Appeals against an Order or Notice may be made through the Courts. In any proceedings under this provision the Code of Practice and any Directions from the Scottish Ministers shall be admissible evidence.

7.11 The offence of littering carries a maximum level 4 fine (currently £2,500), but councils can operate a fixed penalty scheme. The fixed penalty is currently £50, but may be varied by the Scottish Ministers up to level 2 of the standard scale (currently £500). A council, or a police officer, can report an offender for prosecution for the littering offence if a fixed penalty is not paid within 14 days, but payment within this period removes any liability to prosecution.

Monitoring

7.12 The Code of Practice provides a cleanliness standard based on land use and time. It sets out grades of cleanliness and divides land into zones according to use and busyness. Litter clearance, according to standards related to the Codes of Practice, is a statutory performance indicator audited by Audit Scotland.

Fees, Charges and Registers

7.13 There is no system of fees and charges under this regime. Section 95 requires councils and joint boards to maintain a public register of all Litter Control Area and Street Litter Control Notices issued by them. The Register must be available for inspection free of charge at all reasonable times.

Light

Introduction

8.1 Light pollution falls into two main categories. Firstly, lighting from roadways, floodlighting of buildings and advertising which illuminates the night sky and causes problems for astronomers; and secondly, lighting (usually domestic), which causes annoyance to people living adjacent to it.

8.2 Light pollution is increasingly being recognised as a source of nuisance, especially in the domestic context. Proliferation of exterior security lighting on domestic properties is leading to a small but growing number of complaints being made to the environmental health departments of local authorities throughout Scotland.

8.3 A survey of such complaints made to local authority environmental health officers, carried out in April 1995 by The Scottish Office, found that a total of 82 complaints had been made in the calendar year of 1994. Of these, 48 related to domestic security lighting. Most complaints are dealt with informally by environmental health officers. At this time, local authorities do not regard light pollution as a particular problem requiring specific action, but there is a recognition that the incidence of complaints is likely to rise as such installations become more common on domestic property.

Regulators

8.4 Local authorities deal with complaints as a general nuisance, but there is no specific legislation available to deal with complaints on a more formal basis.

Legislation

8.5 There are no specific legislative controls on light pollution, but the Scottish Executive are considering adding artificial light pollution to the list of Statutory Nuisances under Part III of the Environmental Protection Act in 2007 when a suitable legislative vehicle becomes available. This has been done for England and Wales, commencing April 2006. A new technical advice note is also being issued by Transport Scotland in 2006, identifying the issues that planning authorities, developers, designers, road engineers and other relevant authorities should be aware of in lighting proposals. Lighting on motorways and trunk roads in Scotland is installed to ensure minimum spillage of light upward, and local authorities work largely to the same principles. The installation of domestic scale lighting on existing buildings does not normally amount to development requiring planning permission since it would not materially affect the external appearance of the building. The extension of controls would place new burdens both on planning authorities and on businesses. Stricter controls do apply in conservation areas and for listed buildings. Planning permission is however required for lighting installations which are either free standing or amount to engineering operations.

Monitoring

8.6 The Scottish Executive is committed to conducting a further survey in 2006 of the incidence of nuisance caused by obtrusive or badly positioned lighting. Local authorities will be asked to report on the number of complaints made on this subject. Thereafter, further consideration will be given to the need for additional controls in this area

Fees, Charges and Registers

8.7 There is no system of fees and charges nor is there a requirement to keep registers.

Air Quality

Introduction

9.1 Ambient air quality policy in Scotland is based on both European and domestic legislation.

EU Air Quality Framework Directive

9.2 Ambient air quality legislation in Europe derives from the 1996 Air Quality Framework Directive (Directive 96/62/ EC), which established an EU-wide framework for addressing air quality issues. Three Daughter Directives set Limit Values for seven air pollutants - benzene, carbon monoxide, lead, nitrogen dioxide, ozone, particles and sulphur dioxide - and dates by which they should be achieved. A proposed fourth Daughter Directive contains target values for a further five pollutants - arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons ( PAHs) - which should be brought down to levels as low as is practicable.

9.3 The first three Daughter Directives have been transposed into legislation by the Air Quality Limit Values (Scotland) Regulations 2003 ( SSI 2003 no.428) and the Air Quality Limit Values (Scotland) Amendment Regulations 2003 ( SSI 2003 no.547).

9.4 Overall responsibility for achieving the Limit Values lies with the Scottish Ministers, and ultimately with the UK Government as the EU Member State. However, local authorities play a central role through their duties in working towards the domestic air quality objectives which are similar to, or in some cases more stringent than, the Limit Values (see paragraph 9.2). Other organisations such as SEPA are also involved. The Limit Values are mandatory so the Scottish Ministers and UK Government may be subject to infraction proceedings, should any Limit Value not be achieved by the required date. The Limit Values are to be achieved everywhere, unlike the domestic objectives which are restricted to areas of relevant public exposure.

The Air Quality Strategy for England, Scotland, Wales and Northern Ireland

9.5 The Air Quality Strategy for England, Scotland, Wales and Northern Ireland sets out the policy framework for ambient air quality over the short to medium term. The Strategy also defines the roles of central and local government, SEPA, industry, business, transport, individuals and other groups in maintaining and improving air quality.

9.6 The Strategy was first published in 1997 and fully revised in January 2000, with an Addendum produced in February 2003. It contains objectives for nine air pollutants of particular concern to human health: benzene, 1,3-butadiene, carbon monoxide, lead, nitrogen dioxide, ozone, particles, PAHs and sulphur dioxide. The objectives are derived from standards which are purely health based, but also take into account technical feasibility, practicality and economic factors. The strategy will be further revised and updated during 2006.

9.7 The Strategy and Addendum can be found on the Executive's website at www.scotland.gov.uk/Topics/Environment/Pollution/16215/4561

Local Air Quality Management

9.8 Part IV of the Environment Act 1995 requires local authorities to regularly review and assess air quality in their areas against seven of the nine objectives in the Air Quality Strategy. The exceptions are ozone and PAHs, since action at a local level is not currently considered to be cost effective or appropriate. The remaining objectives, and dates by which they should be achieved, are prescribed in regulations for this purpose (the Air Quality (Scotland) Regulations 2000 and the Air Quality (Scotland) Amendment Regulations 2002).

9.9 If review and assessment indicates that any objective is unlikely to be met by the required date, the local authority concerned must declare an Air Quality Management Area ( AQMA) and draw up an action plan outlining how it intends to tackle the issues identified.

9.10 The 1995 Act also makes it clear that authorities must have regard to any guidance issued by the Executive in relation to their responsibilities for local air quality management. Planning authorities should therefore be aware of the policy guidance produced by the Executive in February 2003 in this context: http://www.scotland.gov.uk/Topics/Environment/Pollution/16215/6151

Environmental Noise

Introduction

10.1 Ambient noise is an issue of concern particularly for people living in large urban areas and near major roads, railways and airports.

10.2 The European Parliament and Council Directive relating to the assessment and Management of Environmental Noise 2002/49/ EC, more commonly referred to as the Environmental Noise Directive ( END) was published in the Official Journal of the EU in July 2002, and is due to be transposed into Scottish Regulations in December 2006. This directive concerns noise from road, rail and air traffic and within large urban areas, from industry, including ports. It focuses on the impact of such noise on individuals, complementing existing EU legislation which sets standards for noise emissions from specific sources.

10.3 The aim of END is to define a common approach across the European Union with the intention of avoiding, preventing or reducing on a prioritised basis the harmful effects, including annoyance, due to exposure to environmental noise. This will involve:

  • informing the public about environmental noise and its effects;
  • the preparation of strategic noise maps for: large urban areas (referred to as 'agglomerations' in the END), major roads, major railways and major airports as defined in the END; and
  • preparing action plans, if appropriate, based on the results of the noise mapping exercise. Such plans will aim to manage and reduce environmental noise where necessary, and preserve environmental noise quality where it is good.

10.4 The noise mapping and action planning process is to be taken forward on a five-yearly rolling programme. The first round of mapping and action planning applies to the largest of the agglomerations (including the industries and ports within them), the busiest major roads and railways and all airports. Maps must be produced by 30 June 2007, with the action plans following a year later in 2008. During the second round (2012-13) all agglomerations, major roads, major railways and major airports as defined by END will be mapped and then action plans will be developed for them.

10.5 Like Air Quality, overall responsibility for END lies with the Scottish Ministers, and ultimately with the UK Government as the EU Member State. However,
it is anticipated that the local authorities will play a central role. Other organisations such as SEPA will also be involved. The land use planning system may be expected to have a role in improving the ambient noise climate, and to ensuring that the future occupants of new noise sensitive developments are protected from environmental noise.

10.6 Planning authorities should therefore be aware of the potentially increasing prominence that may be given to Environmental Noise as a material consideration within the planning system.


Contact

Email: ceu@gov.scot