The Water Protection Zone (River Dee Catchment) (Procedural and Other Provisions) Regulations 1999

Consideration and determination of applications

7.—(1) When an application for protection zone consent has been made, the Agency may, subject to the provisions of this regulation and regulation 8—

(a) grant protection zone consent, either unconditionally or subject to conditions; or

(b) refuse protection zone consent.

(2) Subject to paragraph (3) below, the Agency shall, before determining an application for protection zone consent, consult—

(a) the Health and Safety Executive;

(b) every local authority whose area includes the catchment control site or lies downstream of it and every water undertaker who abstracts water from a downstream source of supply;

(c) where the application relates to land in an area to which section 28(1) of the Wildlife and Countryside Act 1981(1) applies (sites of special scientific interest) or to a site which has been designated as a special area of conservation under regulation 8 of the Conservation (Natural Habitats) Regulations 1994(2), in England the Nature Conservancy Council for England or, in Wales, the Countryside Council for Wales.

(3) Paragraph (2) shall not apply insofar as—

(a) the body concerned has notified the Agency that it does not wish to be consulted;

(b) the Agency intends to disregard the provision of regulation 6(1)(a) pursuant to regulation 6(2) above; or

(c) it would require the disclosure of any information which is not to be included in a register by virtue of section 191A or 191B of the Act (exclusion from registers of information affecting national security and of certain confidential information).

(4) Where the Agency is required to consult under paragraph (2), the Agency shall not determine an application for protection zone consent before the end of a period of 42 days beginning with the date on which all the consultees have been served with a copy of the application.

(5) Subject to paragraphs (7) and (8) or a direction under regulation 8, the Agency shall, within the period specified in paragraph (6), give the applicant written notice of the Agency’s decision.

(6) The period specified for the purposes of paragraph (5) is—

(a) a period of four months beginning with the date when the application is made to the Agency;

(b) except where the applicant has already given notice of appeal to the Secretary of State in accordance with regulation 12, such extended period as may be agreed in writing by the applicant and the Agency;

(c) where a charge due in respect of the application has been paid by a cheque which is subsequently dishonoured, the appropriate period specified in sub-paragraphs (a) or (b) above shall be calculated without regard to any time between the date when the Agency sent the applicant written notice of the dishonouring of the cheque and the date when the Agency is satisfied that it has received the full amount of the charge.

(7) Where—

(a) any person, having made an application to the Agency for protection zone consent, has failed to comply with his obligation under regulation 5(2) to supplement that application with information, papers or other material reasonably required by the Agency; and

(b) that requirement was made by the Agency at such a time, before the end of the period specified in paragraphs (6)(a) or (b) within which the Agency is required to determine that application so as to give that person a reasonable opportunity to provide the required information, papers or other material within that period, the Agency may delay its determination of the application until a reasonable time after the required information, papers or other material are provided.

(8) Where the Agency proposes to give its consent to an application for protection zone consent in respect of which representations or objections have been made by a body consulted under paragraph (2) and which have not subsequently been withdrawn—

(a) it shall be the duty of the Agency to serve notice of the proposal to give consent to the application on every body who made any such representations or objection and any such notice shall include a statement of the effect of sub-paragraph (b); and

(b) it shall be the duty of the Agency not to give its consent to the application for protection zone consent before the end of a period of twenty-one days beginning with the latest day on which the notice of the proposal is served on every body concerned.

(9) In considering an application for protection zone consent the Agency shall have regard to any material considerations and in particular to the following–

(a) the nature, quantity and location of any controlled substance proposed to be kept or used and the manner of its intended use, keeping and storage;

(b) the likelihood of that substance accidentally or otherwise entering, leaching or being discharged into the land to which the application relates, any neighbouring land or any inland waters in the vicinity thereof and the resulting concentration of that substance therein;

(c) the likely consequences of such an incident on the quality of those inland waters and in particular the expected impact upon water supplies for human consumption;

(d) the predicted frequency of those consequences;

(e) the presence or proposed presence of any dangerous substance in, on, over or under the land to which the application relates or the presence or proposed presence of any dangerous substance on, over or under land in the vicinity thereof including its nature, quantity and location and the manner of its use and storage; and

(f) any advice or comments which the Agency may have received following consultations in pursuance of paragraph (2).

(10) The Agency shall, when granting protection zone consent, include in that consent—

(a) a description of the catchment control site to which the consent relates;

(b) a description of the controlled substance or substances to which it relates; and

(c) in respect of each controlled substance to which it relates, a statement of the maximum quantity allowed by the consent to be kept or used at any one time and the manner in which it is to be used, conveyed, kept and stored.

(11) When the Agency gives notice of a decision on an application for protection zone consent the notice shall, where protection zone consent is refused or is granted subject to conditions—

(a) state clearly and precisely, its full reasons for the refusal or for any condition imposed;

(b) include a statement to the effect that if the applicant is dissatisfied with the decision he may appeal to the Secretary of State under regulation 12 within 3 months of the date of the notice of the decision, or such longer period as the Secretary of State may at any time allow.

(12) Subject to paragraph (13) the Agency may grant protection zone consent subject to such conditions with respect to any of the following matters as the Agency considers appropriate—

(a) the controlled substances which are permitted to be kept or used within the catchment control site;

(b) how and where any controlled substance to which the consent relates is to be kept, used or conveyed;

(c) the times between which any such substance may be kept or used;

(d) the permanent removal of any such substance—

(i) on or before a date specified in the consent; or

(ii) before the end of a period specified in it and commencing on the date on which it is granted;

(e) the taking by the applicant of precautionary measures or procedures with regard to the land to which the application relates, in relation to any relevant plant, machinery or structure or in relation to the applicant’s methods of operation or management;

(f) the period of time for which the consent is to last;

and where protection zone consent is granted subject to one or more conditions a statement of all such conditions imposed shall be included in that consent.

(13) No condition shall be imposed by the Agency pursuant to paragraph (12)—

(a) unless the Agency considers the condition appropriate for ensuring that, in carrying on a controlled activity, the best available techniques not entailing excessive cost will be used for preventing the direct or indirect release of a controlled substance in circumstances which give rise to an appreciable risk of pollution of any inland waters at any point where such waters are abstracted for the purposes of public water supply or, where that is not practicable by such means, for reducing the release of such substance to a minimum and for rendering harmless any such substance which is so released and in this paragraph, “harmless” has the same meaning as in Part I of the Environmental Protection Act 1990(3);

(b) which would prejudice or affect the operation of any health and safety regulations, improvement notice or prohibition notice then in force by virtue of Part I of the Health and Safety At Work etc Act 1974(4).

(14) The Agency shall, as soon as is practicable, inform the following bodies or persons of the terms of its decision—

(a) the Health and Safety Executive;

(b) every local authority whose area includes the catchment control site or lies downstream of it and every water undertaker who abstracts water from a downstream source of supply; and

(c) any other consultees who have made representations to the Agency on the application pursuant to paragraph (2).

(1)

1981 c. 69. See the amendments to this Act made by Part VII of the Environmental Protection Act 1990 (1990 c. 43).

(2)

S.I. 1994/2716.

(3)

1990 c. 43.

(4)

1974 c. 37.