Environmental Protection Act 1990 - Part IIA Contaminated Land: statutory guidance edition 2

Appeals Against Remediation Notices

39 Remediation notices must include information on the right to appeal against them (see paragraph 17 above). This section of this guide shows how the provisions in Part IIA fit together with the provisions in regulations 7 to 13 of the Regulations and the normal practice of the Scottish Executive in handling appeals.

Matters Affecting Appeals Generally

TIME-LIMIT FOR APPEALS

40 Any appeal must be made within twenty-one days from the date of the remediation notice ( section 78L(1)). There is no provision for extending this time limit.

THE GROUNDS FOR APPEAL

41 Any appeal against a remediation notice must be made on one or more of the grounds set out in regulation 7(1) . In broad terms, the grounds concern the following matters:

(a) whether the land is contaminated land as defined; this ground may arise either because of failure to act in accordance with the statutory guidance in Chapters A and B of Annex 3 or because the identification is otherwise unreasonable;

(b) what is required to be done by way of remediation; this ground may arise either because of failure to have regard to the statutory guidance in Chapter C of Annex 3 or because the requirements are otherwise unreasonable;

(c) whether an appellant is an appropriate person to bear responsibility for a remediation action; section 78F is relevant;

(d) whether someone else is also an appropriate person for a remediation action; section 78F is relevant; under this ground, the appellant must claim either to have found someone else who has caused or knowingly permitted the pollution or that someone else is also an owner or occupier of all or part of the land;

(e) whether the appellant should have been excluded from responsibility for a remediation action; this ground may arise because of failure to act in accordance with the statutory guidance in Chapter D of Annex 3;

(f) the proportion of cost to be borne by the appellant; this ground may arise either because of failure to act in accordance with the statutory guidance in Chapter D of Annex 3 or because the determination of the appellant's share is otherwise unreasonable;

(g) whether the notice complies with restrictions in the Act on the serving of notices; section 78H(1) and (3) is relevant;

(h) whether the case is one of imminent danger of serious harm from the contaminated land; section 78H(4) is relevant;

(i) whether remediation is taking, or will take, place without a remediation notice; section 78H(5) of the Act is relevant;

(j) whether remediation requirements breach restrictions on liability for pollution of the water environment; section 78J is relevant;

(k) whether remediation requirements breach restrictions on liability relating to escaping substances; section 78K is relevant;

(l) whether the authority has itself agreed to carry out the remediation at the cost of the person served with the remediation notice; section 78N(3)(b) of the Act is relevant;

(m) whether the authority should have decided that the recipient of the remediation notice would benefit from waiver or reduction of cost recovery on grounds of hardship or in line with the statutory guidance in Chapter E of Annex 3, that it therefore had power itself to carry out the remediation and that it was thus precluded from serving a remediation notice; sections 78N(3)(e) and 78P(1) and (2) are relevant;

(n) whether the authority's powers to remediate were exercisable because this was a case where hardship or the statutory guidance in Chapter E of Annex 3 should lead to a waiver or reduction in cost recovery; this ground may arise either because of failure to have regard to hardship or the statutory guidance in Chapter E or because the decision was otherwise unreasonable; sections 78N(3)(e) and 78P(1)and (2) are relevant;

(o) whether regard was had to site-specific guidance from the Scottish Environment Protection Agency; section 78V(1) is relevant;

(p) whether enough time was allowed for remediation; the guidance in Chapter C of the statutory guidance may be relevant;

(q) whether the notice would make an insolvency practitioner, an official receiver or other receiver or manager personally liable in breach of the limits on such liability; section 78X(3)(a) and (4) is relevant;

(r) whether certain powers under the Integrated Pollution Control system (Part I of the Environmental Protection Act 1990), or the Pollution Prevention and Control (Scotland) Regulations 2000, or under the waste management licensing system (Part II of the 1990 Act) were available to the authority; section 78YB(1) and (3) are relevant; the powers concerned are those in section 27 (Part I), regulations 19 and 21 (2000 Regulations), and section 59 (Part II) respectively; and

(s) whether there is some informality, defect or error concerning the notice, not covered above; in an appeal on this ground, the appellate authority must dismiss the appeal if it is satisfied that the informality, defect or error was not a material one.

SUSPENSION OF REMEDIATION NOTICE UPON APPEAL

42 Once an appeal has been duly made, the remediation notice concerned is suspended (regulation 13). It remains suspended either until the appeal is finally determined or is withdrawn (abandoned) by the appellant. "Duly made" for this purpose means that an appeal must be made within the time limit, and in accordance with the Regulations.

Appeals Relating to Land which is not a Special Site

43 If the remediation notice was served by a local authority, appeals are to the sheriff by way of summary application (see section 78L(1)(a)). The standard rules governing the procedure for summary applications shall apply in such cases. (However, if the land has subsequently been designated a special site and the notice has been adopted by SEPA, any appeal would be to the Scottish Ministers.)

Special Sites Appeals

44 If land is a special site, and the remediation notice was served or adopted by SEPA, appeals are to the Scottish Ministers.

45 The appellant in a special site case must appeal by submitting a "notice of appeal" to the Scottish Ministers. No particular form is prescribed for such a notice of appeal but, in accordance with regulation 8, it must state:

(a) the appellant's name and address;

(b) the grounds of appeal;

(c) details of matters relied on in support; these may take the form of supporting documents; and

(d) whether the appellant wishes the appeal to be in the form of a hearing, public local inquiry, or alternatively have the appeal decided on the basis of written representations.

46 The appellant must at the same time serve a copy of the notice of appeal on

(a) SEPA;

(b) any other appropriate person named in the remediation notice;

(c) any person who is named in the appeal as an appropriate person; this relates to appeal ground (d);

(d) any person named in the remediation notice as the owner or occupier of the land.

47 The appellant must also send to the Scottish Ministers

(a) a list of the names and addresses of the above persons (except for SEPA); these will normally be found in the remediation notice, except for details of any additional person named in the appeal as an appropriate person; and

(b) a copy of the remediation notice.

48 The appellant must also (because they will not have had it previously) serve a copy of the remediation notice on any person named in the appeal as an appropriate person, or as an owner or occupier, who was not named as such in that remediation notice.

49 Appeals to the Scottish Ministers should be submitted to the Scottish Executive. Their current address and telephone number for this purpose are as follows:-

The Scottish Executive Environment and Rural Affairs Department

Tel: 0131 244 0204

INITIAL PROCEDURE ON AN APPEAL TO THE SCOTTISH MINISTERS

50 Within 14 days of receiving a copy of the notice of appeal, the Scottish Ministers, in accordance with regulation 9, must notify all persons (other than SEPA) on whom the appellant was required to send a copy of the notice of appeal. This notification will ensure that they know there is an appeal, and will make them aware that:

(a) written representations to the Scottish Ministers may be made within 21 days from the receipt of the notice;

(b) such representations will be copied to the appellant and the agency; and any other person on whom the appellant was required to serve a copy of the notice of the appeal; and

(c) those who make representations will be informed about any hearing or public local inquiry.

51 All written representations made to the Scottish Ministers at any time throughout the appeal should be dated with the date on which they are submitted.

52 Most cases will be decided by Reporters appointed on the Scottish Ministers' behalf, under the provisions of section 78L(6) which allow for appeal decisions to be delegated to them. References to the Scottish Ministers in the procedures set out below may be taken to include the Reporter, except where the context indicates otherwise.

53 Some cases may, however, be re-called for decision by the Scottish Ministers. In these "re-called" cases, the Scottish Ministers will determine the appeal on the basis of a written report from the Reporter. In accordance with regulation 10(4), this report must contain conclusions and recommendations, or reasons for not making recommendations In accordance with regulation 11, when the appeal has been determined, a copy of this report will be sent to the appellant and to all those on whom the appellant was required to serve a copy of the notice of appeal, along with the notification of the determination of the appeal.

54 Each special-site appeal will be looked at individually to decide whether it should be re-called. The categories most likely to be re-called are as follows

(a) cases involving special sites of major importance or having more than local significance;

(b) cases giving rise to significant local controversy;

(c) cases which raise significant legal concerns; and

(d) cases which raise major, novel issues and which could therefore set a precedent.

55 Other special site appeal cases may on occasion merit being re-called for decision by the Scottish Ministers

DECIDING AN APPEAL TO THE SCOTTISH MINISTERS

56 A hearing, or public local inquiry, will be arranged if either of the parties asks for that to be done. Otherwise, the appeal will be decided on the basis of written representations, unless the Scottish Ministers decide that it is desirable to hold a hearing or a public local inquiry.

WRITTEN REPRESENTATIONS

57 If the appeal is being decided by written representations, the procedure will normally be as follows:-

Step 1

The Scottish Ministers will invite SEPA to respond to the grounds of appeal; to provide any other information that it relies on to support its decision to serve the remediation notice within 28 days; and to send the appellant a copy of its response at the same time as it is submitted to the Scottish Ministers.

Step 2

The appellant will then be given an opportunity to comment on the representations from SEPA. These should be made within 14 days of the date of submission of SEPA's representations and must be copied to them at the same time. The Scottish Ministers will also send to the appellant and SEPA copies of the representations received under regulation 9 (other than the copy of the SEPA response mentioned in step 1 above, which will already have been copied to the appellant). The Scottish Ministers will seek their comments, which should also be given within 14 days.

Step 3

Arrangements will be made for a Reporter to visit the appeal site. As far as possible, a mutually convenient time will be arranged. SEPA, the appellant and any other person sent a copy of the notice of appeal under regulation 8(2) will be invited to attend. Should any of the parties not be present at the time arranged, the Reporter may decide not to defer the visit. No representations about the appeal can be made during the visit but must be made in writing under the procedures for making representations and within the appropriate time limits. The visit may continue in the absence of one or more of the parties.

58 This procedure is intended to allow the determination of appeals as expeditiously as possible. However, the Scottish Ministers may in certain exceptional cases set time limits which differ from those above, or may extend a time limit either before or after it has expired. The Scottish Ministers may also request exchanges of information in addition to those mentioned above.

HEARINGS

59 Where an appeal is to be decided after a hearing, in accordance with regulation 10(1) to (3), SEPA and those required to be sent a copy of the notice of appeal under regulation 8(2) will be invited to make representations at the hearing. Other persons may be heard at the discretion of the Reporter. SEPA will inform other persons of the date of the hearing where they have previously expressed an interest in the case.

60 The timetable to be followed for the submission of written statements will be in accordance with the Code of Practice for Hearings (Annex F of SODD Circular 17/1998). Failure to provide this information, within the specified timescales, could lead to hearings being adjourned resulting in unnecessary delays. The conduct of the hearing will be for the Reporter to determine, and will follow the Code of Practice for Hearings.

PUBLIC INQUIRIES

61 The holding of a public local inquiry under regulation 10(1)(b) is expected to be more appropriate for particularly complex or locally controversial cases. A pre-inquiry timetable will be provided for the submission of statements, documents and precognitions. It is important that this is adhered to. Inquiry proceedings are more formal in nature than the majority of hearings. Inquiries will be conducted in accordance with the spirit of the Town and Country Planning (Inquiries Procedure) (Scotland) Rules 1997, as amended, or the Town and Country Planning Appeals (Determination by Appointed Person) (Inquiries Procedure) Scotland) Rules 1997, as amended, and the Code of Practice for Inquiries (Annex A of SODD Circular 17/1998). The rules may require details of the inquiry to be posted locally. It sometimes be necessary to hold a pre-inquiry meeting to discuss the nature of the evidence given, who is likely to participate and the programme to be adopted.

ABANDONMENT OF APPEALS

62 An appellant who wishes to abandon (withdraw) a special site appeal must notify the Scottish Ministers in writing, who will in turn notify all those who have received notice of the appeal in accordance with regulation 8(3) and (5) . The appeal is deemed to be abandoned on the day the Scottish Ministers receive the notice of the abandonment. Abandonment may be refused by the Scottish Ministers under regulation 8(4) if the appellant has been notified of a modification to the remediation notice under regulation 12 (see paragraph 68 below).

NOTIFICATION OF APPEAL DECISION

63 Regulation 11 requires that the appellant must be notified in writing of the decision on the appeal, and sent a copy of any report made to the Scottish Ministers by a Reporter. The decision letter, and the report if any, must be copied by the Scottish Ministers to SEPA and to anyone who was entitled to receive a copy of the notice of the appeal

64 Details of decision letters on special-site cases will be placed on the register. Copies will also be available for a small charge from the address shown in paragraph 49 above, as long as they do not contain confidential information or trade secrets. Further information can also be obtained from the same source.

AWARD OF COSTS

65 Each party will bear their own costs unless there has been unreasonable behaviour leading to unnecessary expense, as described in SDD Circular 6/1990.

APPEALS OR COMPLAINTS AGAINST THE DECISION

66 There is no statutory right of appeal against a decision made on appeal by the Scottish Ministers. Once a decision letter has been issued, the decision is final, and the Scottish Ministers and the Reporter can no longer consider any representations or make any further comments on the merits or otherwise of the case. A party to the appeal may be able to seek judicial review of the decision in the Court of Session. If they consider that there has been maladministration in reaching the decision, they may also ask an MSP to take up the matter with the Scottish Parliamentary Commissioner for Administration (the Scottish Commissioner), though the Scottish Commissioner cannot re-open the appeal.

67 If anyone has a complaint about the handling of an appeal by the Scottish Executive, they should write to the Complaints Officer at the address shown in paragraph 49 above.

Modification of Remediation Notices

68 Section 78L(2)(b) enables an appellate authority to modify the remediation notice which is the subject of the appeal. If it proposes to do so in a way which is less favourable to the appellant, then regulation 12 applies. Under regulation 12, the appellate authority must notify the appellant and those persons who were required to be sent a copy of the notice of appeal under regulation 8(2). The appellant and those persons have a right to make representations, and the appellant has a right to be heard. If this right to be heard is exercised, the enforcing authority also has the right to be heard. The appellate authority may refuse to permit an appeal to be withdrawn if it has given notice of a proposed modification of the remediation notice (regulation 8(4)) .

Additional Remediation Notices to Reflect an Appeal Decision

69 A decision by the appellate authority to quash or modify a remediation notice on appeal may also have implications for a person who has not been served with a remediation notice. This might arise where, in particular, an appeal succeeds on the grounds that there is another person who should be held liable instead of or as well as the appellant. In such cases the enforcing authority will need to consider serving a further remediation notice(s) which take(s) into account the appellate authority's decision. Such additional notices would need to fulfil all the relevant requirements of the Act, regulations, and the statutory guidance, in the usual way. They would attract the normal rights of appeal.