ENVIRONMENTAL PROTECTION Citation, commencement, extent and interpretation 1 1 These Regulations may be cited as the Contaminated Land (Scotland) Regulations 2000 and shall come into force on 14th July 2000. 2 These Regulations extend to Scotland only. 3 In these Regulations, unless otherwise indicated, any reference to a numbered section is a reference to the section of the Environmental Protection Act 1990, which bears that number. 4 In these Regulations “ SEPA ” means the Scottish Environment Protection Agency. Land required to be designated as a special site 2 1 Land which has been identified as contaminated within the meaning of Part IIA of the Environmental Protection Act 1990 and which is of the following descriptions is prescribed for the purposes of section 78C(8) as land required to be designated as a special site:– a land to which regulation 3 applies; b land which is contaminated land by reason of waste acid tars in, on or under the land; c land on which any of the following activities have been carried on at any time:– i the purification (including refining) of crude petroleum or of oil extracted from petroleum, shale or any other bituminous substance except coal; or ii the manufacture or processing of explosives; d land on which a prescribed process designated for central control has been or is being carried on, other than land which is contaminated land solely as a result of things being done which are required by way of remediation; e land within a nuclear site; f land owned or occupied by or on behalf of– i the Secretary of State for Defence; ii the Defence Council; iii an international headquarters or defence organisation; or iv the service authority of a visiting force, being land used for naval, military or air force purposes; g land on which the manufacture, production or disposal of– i chemical weapons; ii any biological agent or toxin which falls within section 1(1)(a) of the Biological Weapons Act 1974 ; or iii any weapon, equipment or means of delivery which falls within section 1(1)(b) of that Act, has been carried on at any time; and h land which– i is adjoining or adjacent to land of a description specified in sub paragraphs (b) to (g) above; and ii is contaminated land by virtue of substances which appear to have escaped from land of such a description. 2 For the purposes of paragraph (1)(b) above, “waste acid tars” are tars which– a contain sulphuric acid; b were produced as a result of the refining of benzole, used lubricants or petroleum; and c are or were stored on land used as a retention basin for the disposal of such tars. 3 In paragraph (1)(d) above, “prescribed process” has the same meaning as in Part I of the Environmental Protection Act 1990 and the reference to designation for central control is a reference to designation under section 2(4) (which provides for the processes to be designated for central or local control). 4 In paragraph (1)(e) above, “nuclear site” means– a any site in respect of which or part of which a nuclear site licence is for the time being in force; or b any site in respect of which, or part of which, after the revocation or surrender of a nuclear site licence, the period of responsibility of the licensee has not come to an end, and “nuclear site licence”, “licensee” and “period of responsibility” have the meaning given by the Nuclear Installations Act 1965 . 5 For the purposes of paragraph (1)(f) above, land used for residential purposes or by the Navy, Army and Air Force Institutes shall be treated as land used for naval, military or air force purposes only if the land forms part of a base occupied for naval, military or air force purposes. 6 In paragraph (1)(f) above– “international headquarters” and “defence organisation” mean any international headquarters or defence organisation designated for the purposes of the International Headquarters and Defence Organisations Act 1964 ; “service authority” and “visiting force” have the same meaning as in Part I of the Visiting Forces Act 1952 . 7 In paragraph (1)(g) above, “chemical weapon” has the same meaning as in sub-section (1) of section 1 of the Chemical Weapons Act 1996 disregarding sub-section (2) of that section. Pollution of controlled waters 3 For the purposes of regulation 2(1)(a), this regulation applies to land where– a controlled waters which are, or are intended to be, used for the supply of drinking water for human consumption are being affected by the land and, as a result, require a treatment process or a change in such a process to be applied to those waters before use, so as to be regarded as wholesome within the meaning of Part VIA of the Water (Scotland) Act 1980 ; b controlled waters are being affected by the land and, as a result, those waters do not meet or are not likely to meet the criterion for classification applying to the relevant description of waters specified in regulations made under section 30B of the Control of Pollution Act 1974 ; or c controlled waters are being affected by the land and– i any of the substances by reason of which the pollution of the waters is being or is likely to be caused falls within any of the families or groups of substances listed in Schedule 1 to these Regulations; and ii the waters, or any part of the waters, are contained within underground strata which comprise wholly or partly Devonian Sandstones or Permo-Triassic Sandstones. Content of remediation notices 4 A remediation notice shall be in the form set out in Schedule 2 to these Regulations or as near as may be to that form and shall contain the information prescribed therein. Service of copies of remediation notices 5 1 Subject to paragraph (2) below, the enforcing authority shall, at the same time as it serves a remediation notice, send a copy of it to each of the following persons, not being a person on whom the notice is to be served:– a any person who was required to be consulted under section 78G(3) before service of the notice; b any person who was consulted under section 78H(1) before service of the notice; c where the local authority is the enforcing authority, SEPA; and d where SEPA is the enforcing authority, the local authority in whose area the contaminated land in question is situated. 2 Where it appears to the enforcing authority that the contaminated land in question is in such a condition by reason of substances in, on or under it, that there is imminent danger of serious harm, or serious pollution of controlled waters, being caused, the enforcing authority shall send any copies of the notice pursuant to paragraph (1) above as soon as practicable after service of the notice. Compensation for rights of entry etc. 6 Schedule 3 to these Regulations shall have effect– a for prescribing the period within which a person who grants, or joins in granting, any rights pursuant to section 78G(2) may apply for compensation for the grant of those rights; b for prescribing the manner in which, and the person to whom, such an application may be made; and c for prescribing the manner in which the amount of such compensation shall be determined and for making further provisions relating to such compensation. Grounds of appeal against a remediation notice 7 1 The grounds of appeal against a remediation notice under section 78L(1) are any of the following:– a that, in determining whether any land to which the notice relates appears to be contaminated land, the local authority– i failed to act in accordance with guidance issued by the Scottish Ministers under section 78A(2), (5) or (6); or ii whether, by reason of such a failure or otherwise, unreasonably identified all or any of the land to which the notice relates as contaminated land; b that, in determining a requirement of the notice, the enforcing authority– i failed to have regard to guidance issued by the Scottish Ministers under section 78E(5); or ii whether by reason of such a failure or otherwise, unreasonably required the appellant to do anything by way of remediation; c that the enforcing authority wrongly determined the appellant to be the appropriate person who is to bear responsibility for anything required by the notice to be done by way of remediation; d subject to paragraph (2) below, that the enforcing authority failed to determine that some person in addition to the appellant is an appropriate person in relation to anything required by the notice to be done by way of remediation; e that, in respect of anything required by the notice to be done by way of remediation, the enforcing authority failed to act in accordance with guidance issued by the Scottish Ministers under section 78F(6); f that, where two or more persons are appropriate persons in relation to anything required by the notice to be done by way of remediation, the enforcing authority– i failed to determine the proportion of the cost stated in the notice to be the liability of the appellant in accordance with guidance issued by the Scottish Ministers under section 78F(7); or ii whether, by reason of such a failure or otherwise, unreasonably determined the proportion of the cost that the appellant is to bear; g that service of the notice contravened a provision of sub-section (1) or (3) of section 78H (restrictions and prohibitions on serving remediation notices), other than in circumstances where section 78H(4) applies; h that, where the notice was served in reliance on section 78H(4) without compliance with section 78H(1) or (3), the enforcing authority could not reasonably have taken the view that the contaminated land in question was in such a condition by reason of substances in, on or under the land, that there was imminent danger of serious harm or serious pollution of controlled waters being caused; i that the enforcing authority has unreasonably failed to be satisfied, in accordance with section 78H(5)(b), that appropriate things are being, or will be, done by way of remediation without service of a notice; j that anything required by the notice to be done by way of remediation was required in contravention of a provision of section 78J (restrictions on liability relating to the pollution of controlled waters); k that anything required by the notice to be done by way of remediation was required in contravention of a provision of section 78K (liability in respect of contaminating substances which escape to other land); l that the enforcing authority itself has power, in a case falling within section 78N(3)(b), to do what is appropriate by way of remediation; m that the enforcing authority has power, in a case falling within section 78N(3)(e), to do what is appropriate by way of remediation; n that the enforcing authority, in considering for the purposes of section 78N(3)(e), whether it would seek to recover all or a portion of the cost incurred by it in doing some particular thing by way of remediation– i failed to have regard to any hardship which the recovery may cause to the person from whom the cost is recoverable or to any guidance issued by the Scottish Ministers for the purposes of section 78P(2); or ii whether by reason of such a failure or otherwise, unreasonably determined that it would decide to seek to recover all of the cost; o that in determining a requirement of the notice the enforcing authority failed to have regard to guidance issued by SEPA under section 78V(1); p that a period specified in the notice within which the appellant is required to do anything is not reasonably sufficient for the purpose; q that the notice provides for a person acting in a relevant capacity to be personally liable to bear the whole or part of the cost of doing anything by way of remediation, contrary to the provisions of section 78X(3)(a); r that service of the notice contravened a provision of section 78YB (interaction of Part IIA of the Environmental Protection Act 1990 with other enactments), and– i in a case where sub-section (1) of that section is relied on, that it ought reasonably to have appeared to the enforcing authority that the powers of SEPA under section 27 might be exercised; or ii in a case where sub-section (3) of section 78YB is relied on, that it ought reasonably to have appeared to the enforcing authority that the powers of SEPA or a local authority under section 59 might be exercised; or s that there has been some informality, defect or error in, or in connection with, the notice, in respect of which there is no right of appeal under the grounds set out in sub-paragraphs (a) to (r) above. 2 A person may only appeal on the ground specified in paragraph (1)(d) above in a case where– a the enforcing authority has determined that that person is an appropriate person by virtue of section 78F(2) and that person claims to have found some other person who is an appropriate person by virtue of that subsection; b the notice is served on that person as the owner or occupier for the time being of the contaminated land in question and that person claims to have found some other person who is an appropriate person by virtue of section 78F(2); or c the notice is served on that person as the owner or occupier for the time being of the contaminated land in question, and that person claims that some other person is also an owner or occupier for the time being of the whole or part of that land. 3 If and insofar as an appeal against a remediation notice is based on the ground of some informality, defect or error in, or in connection, with the notice, the appellate authority shall dismiss the appeal if it is satisfied that the informality, defect or error was not a material one. Appeals to the Scottish Ministers 8 1 An appeal to the Scottish Ministers against a remediation notice shall be made to them by a notice (“notice of appeal”) which shall state– a the name and address of the appellant; b the grounds on which the appeal is made including particulars of the matters relied upon in support; and c whether the appellant wishes the appeal to be in the form of a hearing or to be disposed of on the basis of written representations. 2 The appellant shall, at the same time as serving a notice of appeal on the Scottish Ministers– a serve a copy of it on– i SEPA; ii any person named in the remediation notice as an appropriate person; iii any person named in the notice of appeal as an appropriate person; and iv any person named in the remediation notice as the owner or occupier of the whole or any part of the land to which the notice relates, and serve on the Scottish Ministers a statement of the names and addresses of any persons falling within paragraph (ii), (iii) or (iv) above; and b serve a copy of the remediation notice to which the appeal relates on the Scottish Ministers and on any person named in the notice of appeal as an appropriate person who is not so named in the remediation notice. 3 Subject to paragraph (4) below, if the appellant wishes to abandon an appeal, the appellant shall do so by notifying the Scottish Ministers in writing (or in electronic form) and the appeal shall be treated as abandoned on the date the Scottish Ministers receive that notification. 4 The Scottish Ministers may refuse to permit an appellant to abandon the appeal against a remediation notice where the notification by the appellant in accordance with paragraph (3) above is received by them at any time after they have notified the appellant in accordance with regulation 12(1) below of the proposed modification of that notice. 5 Where an appeal is abandoned, the Scottish Ministers shall give notice of the abandonment to any person on whom the appellant was required to serve a copy of the notice of appeal. Action by the Scottish Ministers upon receipt of notice of appeal 9 The Scottish Ministers shall, within 14 days of receipt of a notice of appeal, give notice of the following matters to any person (other than to SEPA) on whom the appellant was required to serve a copy of the notice of appeal– a that representations with respect to the appeal may be made to the Scottish Ministers in writing (or in electronic form) by the recipient of the notice within the period of 21 days beginning with the date of receipt of the notice; b that copies of the representations will be sent to the appellant, SEPA and any other person on whom the appellant was required to serve a copy of the notice of appeal; and c that any person who makes any such representations will be informed about the hearing of the appeal if there is to be a hearing held wholly or partly in public. Hearings and local inquiries 10 1 Before determining an appeal, the Scottish Ministers may, if they think fit– a cause the appeal to take or continue in the form of a hearing (which may, if the person hearing the appeal so decides, be held, or held to any extent, in private); or b cause a local inquiry to be held, and the Scottish Ministers shall act as mentioned in sub-paragraph (a) or (b) above if a request is made by either the appellant or SEPA to be heard with respect to the appeal. 2 The persons entitled to be heard at a hearing are– a the appellant; b SEPA; and c any person (other than SEPA) on whom the appellant was required to serve a copy of the notice of appeal. 3 Nothing in paragraph (2) above shall prevent the person appointed to conduct the hearing of the appeal from permitting any other person to be heard at the hearing and such permission shall not be unreasonably withheld. 4 After the conclusion of a hearing, the person appointed to conduct the hearing shall, unless that person has been appointed under section 114(1)(a) of the Environment Act 1995 to determine the appeal, make a report in writing (or in electronic form) to the Scottish Ministers which shall include the conclusions and the recommendations of that person or, as appropriate, the reasons for not making any recommendations. Notification of the decision of the Scottish Ministers on an appeal 11 1 The Scottish Ministers shall notify the appellant in writing (or in electronic form) of their decision on an appeal and shall provide the appellant with a copy of the report mentioned in regulation 10(4) above. 2 The Scottish Ministers shall, at the same time as they notify the appellant, send a copy of the documents mentioned in paragraph (1) above to SEPA and to any other person on whom the appellant was required to serve a copy of the notice of appeal. Modification of a remediation notice 12 1 Before modifying a remediation notice under section 78L(2)(b) in any respect which would be less favourable to the appellant than the remediation notice against which the appellant is appealing, the appellate authority shall– a notify the appellant, and any persons on whom the appellant was required to serve a copy of the notice of appeal, of the proposed modification; b permit any persons so notified to make representations in relation to the proposed modification; and c permit the appellant to be heard, if the appellant so requests. 2 Where, in accordance with paragraph (1) above, the appellant is heard, the enforcing authority shall also be entitled to be heard. Interim suspension of a remediation notice 13 1 Where an appeal is duly made against a remediation notice, the notice shall be of no effect pending the final determination or abandonment of the appeal. 2 An appeal against a remediation notice is duly made for the purposes of this regulation if it is made within the period specified in section 78L(1) and– a in the case of an appeal to the Scottish Ministers, the requirements of regulation 8 have been fully complied with; or b in the case of an appeal to the sheriff, the summary application has been made. Registers 14 1 Schedule 4 to these Regulations shall have effect for prescribing– a for the purposes of sub-section (1) of section 78R, the particulars of or relating to the matters to be contained in a register maintained under that section; and b other matters in respect of which such a register shall contain prescribed particulars pursuant to section 78R(1)(l). 2 The following descriptions of information are prescribed for the purposes of section 78R(2) as information to be contained in notifications for the purposes of section 78R(1)(h) and (j):– a the location and extent of the land sufficient to enable it to be identified; b the name and address of the person who it is claimed has done each of the things by way of remediation; c a description of anything which it is claimed has been done by way of remediation; and d the period within which it is claimed each such thing was done. 3 The following places are prescribed for the purposes of section 78R(8) as places at which any registers or facilities for obtaining copies shall be available or afforded to the public in pursuance of paragraph (a) or (b) of that sub-section– a where the enforcing authority is the local authority, its principal office; and b where the enforcing authority is SEPA, the appropriate regional office for the area in which the contaminated land in question is situated. SARAH BOYACK A member of the Scottish Executive St Andrew’s House, Edinburgh 12th June 2000