Schedule 2 – Controlled activities regulations: particular purposes
141.Schedule 2 is in two parts. Part 1 sets out the purposes for which regulations made pursuant to section 20 of the Act may be made. Part 2 supplements Part 1.
142.Paragraph 1 enables the regulations made pursuant to section 20 to expand on the definitions of controlled activities given in section 20(3) and to amend those definitions if desirable. The regulations may also specify controlled activities in addition to those specified in section 20(3).
143.Paragraph 2 enables the Scottish Ministers to specify in the regulations which authority will exercise any regulatory functions conferred by them. The Scottish Ministers, SEPA or any other public or local authority may be appointed as regulators. The regulations may specify that the regulators functions are to be exercised with a view to achieving the environmental objectives set out in river basin management plans and any other purposes (for example, mitigating flood or drought). The regulations may also enable the Scottish Ministers to issue directions and guidance to any regulator in connection with the exercise of their regulatory functions. Directions must be complied with. Guidance need only be had regard to.
144.Paragraph 3 enables the regulations to make provision for prohibiting persons from carrying on, or from causing or permitting others to carry on, any controlled activity unless it is authorised by or under and carried on in accordance with the regulations. The paragraph contemplates three types of authorisation: general binding rules (paragraph 3(2) and (3)), water use licences (paragraph 3(4(a)) and registration (paragraph 3(4)(b)), as further described below.
145.Paragraph 3(2) is the main provision dealing with general binding rules but paragraph 17 is also relevant because it gives some indication of the type of provision that could be made in general binding rules. It makes it clear that general binding rules may impose conditions or requirements on the carrying out of a controlled activity. They may also set standards or objectives to be complied with or achieved and require standards or objectives set out in other enactments to be complied with or achieved. Paragraph 3(3) enables provision to be made for treating controlled activities as authorised if they are subject to general binding rules.
146.Paragraph 4 enables provision to be made for requiring anyone who proposes to carry on a controlled activity to notify the relevant regulator first. This will enable the regulator to determine what form of authorisation (if any) is required to be obtained in respect of that activity. The regulations will specify the procedure for notifying proposed controlled activities and for the assessment of how an activity requires to be authorised.
147.Paragraph 5 enables the regulations to make provision for or in connection with water use licences. They may prescribe the form and content of applications for water use licences and the procedure for making applications and for issuing such licences. It allows for such licences to be reviewed and varied periodically by the relevant regulator. It also allows for such licences to be suspended or revoked by the relevant regulator. It further allows for the regulations to specify requirements to be met if licences are transferred from one operator to another or surrendered. It will be possible for regulators to grant single water use licences covering a number of controlled activities.
148.Paragraph 5(6) should be read together with paragraph 18, which makes more detailed provision in relation to the imposition of conditions in respect of a water use licence. It provides that regulations may, in particular, provide for conditions to be imposed in the light of any specified general principles, directions or guidance given under the regulations. Paragraph 18(c) will enable provision to be made to allow a regulator to impose conditions with reference to management agreements entered into between a number of licence holders. The regulations can specify the circumstances in which any such agreements may be incorporated in a water use licence.
149.Paragraph 6 enables the regulations to make provision for or in connection with the registration of controlled activities. For example, in some cases the regulations might permit the carrying on of a controlled activity subject only to a requirement to register the proposed carrying on of that activity with the relevant regulator. The regulations may require all notified activities to be registered irrespective of whether they are controlled by means of a water use licence or general binding rules or neither.
150.Paragraph 7 enables the regulations to make provision allowing regulators to establish charging schemes to recover costs incurred in connection with processing and assessing notifications, registering activities and water use licensing. Paragraph 7(2) will enable the regulations to provide that any such charging schemes must be approved by the Scottish Ministers before they take effect.
151.Paragraph 7 should be read together with paragraph 19, which makes further provision in relation to charging schemes. It provides that the regulations may require fees and charges payable under a charging scheme to be determined in the light of any specified general principles, directions or guidance given under the regulations or for them to be sufficient taking one year with another to cover expenditure specified in the regulations. The regulations may authorise any charging scheme to make different provision for different cases and that the regulations may specify different kinds of cases.
152.Paragraph 8 allows for requirements to be placed on the regulators to publicise various matters and to maintain certain public registers in connection with their regulatory functions. For example, the regulations may specify that regulators are to maintain public registers of both applications received for authorisations and authorisations granted. The regulations may also require persons to publicise the fact that they applying for an authorisation in certain circumstances, for example, when the controlled activity they propose to carry out is likely to have a significant effect on the water environment.
153.Paragraph 9 enables the regulations to specify the circumstances in which regulators must consult on various aspects of their regulatory functions. The regulations may, in particular, specify requirements for regulators to consult on any general guidance that they may make in connection with their regulatory functions (such as, for example, guidance on the risk assessment methodologies used to assess notifications of controlled activities).
154.Paragraph 10 enables the regulations to confer on regulators’ functions with respect monitoring and inspecting the carrying on of controlled activities. This will enable them to ensure that authorisations are complied with. The regulations may, for example, allow regulators to enter premises, take samples or copy information and to arrange for remedial work to be carried out at the expense of those carrying out the controlled activities.
155.Paragraph 11 enables the regulations to provide regulators with powers to issue various notices on persons. It provides a non-exhaustive list of such notices (paragraph 11(1)(a) to (f)). Paragraph 11(1)(a) provides for notices to notify. This is to cater for the situation where a person is found to be carrying on a controlled activity without an authorisation and would require that person to notify the activity to the regulator. It provides for an administrative means of bringing persons into the control regime – the alternative is likely to be a prosecution under the proposed prohibition of the carrying on of controlled activities without an authorisation.
156.Paragraph 12 enables the regulations to specify offences and make related provision. The regulations could, for example, create an offence of non-compliance with a notice. Paragraph 12 must be read subject to paragraph 20 in Part 2 of the schedule which specifies maximum penalties and makes provision for continuing offences. Where a person has been convicted of an offence the regulations may enable the courts to deal with that person by requiring that person to take remedial action in addition to or instead of imposing any punishment. They may also enable regulators to arrange for remedial action to be taken at the expense of that person.
157.Paragraph 14 enables the regulations to specify rights of appeals in respect of decisions made or notices served or other things done (or omitted to be done) by regulators in connection with the various regulatory regimes. Any such regulations would make detailed provision in respect of, for example, procedural matters and the making, consideration and determination of appeals.
158.Paragraph 15 provides that the regulations may make provision along similar lines to the provisions of sections 157, 158 and 160 of the Environmental Protection Act 1990. Sections 157 and 158 of that Act deal with offences. Section 157 provides that directors, managers, secretaries of corporate bodies or other similar officers of such bodies or persons purporting to act in such a capacity or a member of a corporate body where it is managed by members are guilty of offences committed by the corporate body in question when liability for the offence can be attributed to them. Section 158 provides that where offences are committed because of acts or the default of some other person then the other person may be convicted of the offence in question. Section 160 sets out procedures and requirements for the serving of notices. It provides for notices to be left in person or sent by post. It further specifics the type of addresses notices should be sent to and, in relation to corporate bodies on whom, precisely notices can be served.
159.Paragraph 21 defines various terms used in schedule 2.