Protection of the Environment Act 2003

CHAPTER 2

Integrated Pollution Prevention and Control Under Act of 1992

Substitution of new Part for Part IV of Act of 1992.

15.—The following Part is substituted for Part IV of the Act of 1992:

“PART IV

Integrated Pollution Prevention and Control

Licences.

82.—(1) In this section ‘previous Part IV’ means this Part as it had effect before the amendment of it by section 15 of the Protection of the Environment Act 2003.

(2) A person shall not carry on an activity, other than an established activity or an activity to which subsection (3) applies, unless a licence or revised licence under this Part is in force in relation to the activity.

(3) (a) A person shall not continue to carry on an activity (other than an established activity) the carrying on of which—

(i)   commenced on or after 30 October 1999 but before the commencement of section 15 of the Protection of the Environment Act 2003, and

(ii)   was not licensable under the previous Part IV but is licensable under this Part,

unless, within the period of 6 months from the commencement of that section, a licence under this Part is in force in relation to it.

(b) Paragraph (a) is without prejudice to paragraph (c).

(c) The carrying on of an activity to which paragraph (a) relates shall, in the period before a licence in relation to the activity is granted or refused, be deemed not to have contravened the provisions of this Part provided that, within the period of 6 months referred to in paragraph (a), an application has been made for a licence in respect of that activity and the requirements of regulations made under section 89 in relation to the application for the licence have been complied with by the applicant therefor.

(4) (a) The Minister may, by order, provide that an established activity of any class specified in the order shall not be carried on, on or after such date as may be specified in the order, unless a licence or revised licence under this Part is in force in relation to the activity.

(b) Paragraph (a) is in addition to the circumstances specified in section 98 in which a licence is required under that section in respect of an established activity.

(5) In the period (following the specification of a date by an order under subsection (4)) before a licence in relation to the established activity concerned is granted or refused, the requirements of any other legislation relevant to the activity shall continue to apply.

(6) Notwithstanding the specification of a date by an order under subsection (4), the carrying on of an established activity to which the order relates shall, in the period before a licence in relation to the activity is granted or refused, be deemed not to have contravened the provisions of this Part provided that, before that specified date, an application has been made for a licence in respect of that activity and the requirements of regulations made under section 89 in relation to the application for the licence have been complied with by the applicant therefor.

(7) Every licence and revised licence granted under the previous Part IV and in force immediately before the commencement of section 15 of the Protection of the Environment Act 2003 shall, without prejudice to subsections (10) and (11), section 92 and the other provisions of this Act, continue in force; for the avoidance of doubt, the provisions of this Part, and not of the previous Part IV, shall apply to such a licence.

(8) Every application made under the previous Part IV for a licence, or the review of a licence or a revised licence, and every review of a licence or a revised licence commenced by the Agency of its own volition under the said Part IV, and not finally dealt with and determined or completed before the commencement of section 15 of the Protection of the Environment Act 2003, shall continue to be dealt with by the Agency, and be determined or completed by it, as if the application were an application for a licence, or the review of a licence or a revised licence under this Part or, as the case may be, the review were a review commenced by the Agency of its own volition under this Part.

(9) Every order made under subsection (2) (being subsection (2) of this section as it had effect in the previous Part IV) and in force immediately before the commencement of section 15 of the Protection of the Environment Act 2003, shall continue in force as if it were an order made under subsection (4).

(10) The Agency shall, not later than 30 September 2007, have done the following (which, by virtue of this subsection, it has power to do)—

(a) examined the terms of every licence and revised licence to which subsection (7) applies and for the time being in force and determined whether, having regard to the provisions of the Directive and subsection (11), the licence or revised licence requires to be reviewed under this Part or be the subject of the exercise of the powers conferred by subsection (11), and

(b) if—

(i)   it has determined that the licence or revised licence requires to be so reviewed, commenced such a review and exercised the powers conferred on it by this Part consequent on such a review, or

(ii)   it has determined that the licence or revised licence does not require to be so reviewed and subsection (11) does not apply and, accordingly, that no further action is required, declared in writing that it is of that opinion.

(11) If the bringing into conformity with the Directive of a licence or revised licence to which subsection (7) applies can, in the opinion of the Agency, be achieved by amending one or more of the conditions of the licence (and the making of those amendments will not significantly alter the character of the licence) then, unless the Agency considers it ought nevertheless, in the public interest or because of other special considerations, carry out the review and exercise the powers referred to in subsection (10)(b)(i)   in relation to the licence, the Agency shall have made, not later than 30 September 2007, those amendments of the conditions of the licence or revised licence (which, by virtue of this subsection, it has power to do).

Determination of applications for licences.

83.—(1) Where an application is made to the Agency in the prescribed manner for a licence under this Part it may, subject to section 99A and to compliance with any regulations under section 89, grant the licence subject to such conditions as it considers appropriate or refuse the application.

(2) Unless it considers that it is unnecessary to do so, the Agency shall carry out or cause to be carried out such investigations as it thinks appropriate or as may be prescribed—

(a) prior to, and for the purposes of determining, any application made to it under this Part,

(b) as part of the review of a licence or revised licence commenced by the Agency under section 90, or

(c) for the purposes of section 82(10) or (11),

and may require the applicant or the licensee, as the case may be, to defray or contribute towards the cost of any such investigation.

(3) In considering an application for a licence or a revised licence, or the review of a licence or a revised licence under this Part, the Agency shall have regard to—

(a) any relevant air quality management plan under section 46 of the Air Pollution Act 1987 , or water quality management plan under section 15 of the Local Government (Water Pollution) Act 1977 , or waste management plan,

(b) any relevant noise regulations under section 106,

(c) any special control area order under section 39 of the Air Pollution Act 1987 , in operation in relation to the area concerned,

(d) the policies and objectives of the Minister or the Government in relation to the prevention, elimination, limitation, abatement or reduction of emissions for the time being extant,

(e)    (i)   the environmental impact statement (if any) submitted with the application,

(ii)   any submissions or observations made to the Agency in relation to the environmental impact statement,

(iii) any further information or particulars submitted in relation to the environmental impact statement in compliance with a notice given under regulations under section 89, and

(iv) where appropriate, the comments of other Member States of the European Communities in relation to the effects on the environment of the proposed activity,

insofar as the statement, submissions, comments, observations, information or particulars relate to the effects on the environment of emissions from the activity,

and

(f) such other matters related to the prevention, elimination, limitation, abatement or reduction of emissions as it considers necessary.

(4) (a) In granting a licence or revised licence, the Agency shall, subject to section 86(3), specify in the licence or the revised licence emission limit values for environmental pollutants likely to be emitted from the activity in significant quantities, having regard to their nature and their potential to transfer from one environmental medium to another.

(b) The Minister may make regulations for the purposes of this subsection.

(c) Without prejudice to the generality of paragraph (b), regulations under this subsection may specify the principal polluting substances to which the Agency is to have regard in fulfilling its duty under paragraph (a).

(5) The Agency shall not grant a licence or revised licence for an activity—

(a) unless it is satisfied that—

(i)   any emissions from the activity will not result in the contravention of any relevant air quality standard specified under section 50 of the Air Pollution Act 1987 , and will comply with any relevant emission limit value specified under section 51 of the Air Pollution Act 1987 ,

(ii)   any emissions from the activity will comply with, or will not result in the contravention of, any relevant quality standard for waters, trade effluents and sewage effluents and standards in relation to treatment of such effluents prescribed under section 26 of the Local Government (Water Pollution) Act 1977 ,

(iii) any emissions from the activity or any premises, plant, methods, processes, operating procedures or other factors which affect such emissions will comply with, or will not result in the contravention of, any relevant standard including any standard for an environmental medium prescribed under regulations made under the European Communities Act 1972 , or under any other enactment,

(iv) any noise from the activity will comply with, or will not result in the contravention of, any regulations under section 106,

(v)   any emissions from the activity will not cause significant environmental pollution,

(vi) the best available techniques will be used to prevent or eliminate or, where that is not practicable, generally to reduce an emission from the activity,

(vii) having regard to Part III of the Act of 1996, production of waste in the carrying on of the activity will be prevented or minimised or, where waste is produced, it will be recovered or, where that is not technically or economically possible, disposed of in a manner which will prevent or minimise any impact on the environment,

(viii) energy will be used efficiently in the carrying on of the activity,

(ix) necessary measures will be taken to prevent accidents in the carrying on of the activity and, where an accident occurs, to limit its consequences for the environment and, in so far as it does have such consequences, to remedy those consequences,

(x) necessary measures will be taken upon the permanent cessation of the activity (including such a cessation resulting from the abandonment of the activity) to avoid any risk of environmental pollution and return the site of the activity to a satisfactory state, and

(xi) the applicant or licensee or transferee, as the case may be, is a fit and proper person to hold a licence,

and, where appropriate, the Agency shall attach conditions relating to the matters specified in the foregoing subparagraphs to the licence or revised licence,

and

(b) where an environmental quality standard requires stricter conditions to be attached to the licence or revised licence than would otherwise be determined by reference to best available techniques either—

(i)   without attaching to the licence or revised licence conditions of an appropriate kind for the purpose of that standard, or

(ii)   where—

(I) the proposed licensee or the licensee proposes, for the purpose of that standard, to take steps that are different from those that would be required by the imposition of conditions under subparagraph (i), and

(II) the Agency is satisfied that those steps, or those steps with such modifications of them as it considers appropriate, are appropriate for the purpose of that standard,

without attaching conditions to the licence or revised licence requiring those steps, or those steps as so modified, to be taken.

(6) The Agency may, before it does any of the following things, namely—

(a) decides whether to—

(i)   grant a licence or a revised licence, or

(ii)   effect a transfer of a licence or a revised licence,

or

(b) completes a review of a licence or a revised licence,

require the applicant for the licence, the licensee in the case of a review (whether commenced by the Agency of its own volition or not), or the proposed transferee, as the case may be, to—

(i)   furnish to it such particulars in respect of such matters affecting his ability to meet the financial commitments or liabilities that the Agency reasonably considers will be entered into or incurred by him in carrying on the activity to which the licence or revised licence relates or will relate, as the case may be, in accordance with the terms of the licence or in consequence of ceasing to carry on that activity as it may specify, and

(ii)   make, and furnish evidence of having so made, such financial provision as it may specify (which may include the entering into a bond or other form of security) as will, in the opinion of the Agency, be adequate to discharge the said financial commitments or liabilities.

(7) A person who, pursuant to a requirement made of him under subsection (6), furnishes to the Agency any particulars or evidence which he knows to be false or misleading in a material respect shall be guilty of an offence.

(8) The Minister may make regulations for the purpose of subsection (6).

(9) Without prejudice to the generality of subsection (8), regulations under that subsection may specify by reference to the type of activity to which the licence or revised licence concerned relates or will relate—

(a) the nature of the financial provision that the Agency may require a person to make under subsection (6)(ii),

(b) the matters to be had regard to by the Agency in determining the amount of financial provision that it may require a person to make under subsection (6)(ii).

(10) A person shall not be entitled solely by reason of a licence or revised licence under this Part to make, cause or permit an emission to any environmental medium.

Provisions supplemental to, and consequential on, section 83.

84.—(1) Where a licence or revised licence is required under this Part in respect of an activity, a licence under—

(a) Part III of the Air Pollution Act 1987 ,

(b) section 4 or 16 of the Local Government (Water Pollution) Act 1977 , or

(c) section 171 of the Fisheries (Consolidation) Act 1959 ,

shall not be granted in relation to such activity.

(2) Where a licence or revised licence has been granted under this Part in respect of an activity, a licence under—

(a) Part III of the Air Pollution Act 1987 ,

(b) section 4 or 16 of the Local Government (Water Pollution) Act 1977 , or

(c) section 171 of the Fisheries (Consolidation) Act 1959 ,

shall cease to have effect in relation to such activity.

(3) It shall be a good defence—

(a) to a prosecution for an offence under any enactment other than this Part, or

(b) to proceedings under—

(i)    section 10 or 11 of the Local Government (Water Pollution) Act 1977 ,

(ii)    section 20 of the Local Government (Water Pollution) (Amendment) Act 1990 ,

(iii) section 28, 28A or 28B of the Air Pollution Act 1987 ,

(iv) section 57 or 58 of the Act of 1996, or

(v)   section 99H,

to prove that the act complained of is authorised by a licence or revised licence granted under this Part.

(4) For the purpose of this Part, a person shall be regarded as a fit and proper person if—

(a) neither that person nor any other relevant person has been convicted of an offence under this Act, the Act of 1996, the Local Government (Water Pollution) Acts 1977 and 1990 or the Air Pollution Act 1987 prescribed for the purposes of this subsection,

(b) in the opinion of the Agency, that person or, as appropriate, any person or persons employed by him to direct or control the carrying on of the activity to which the licence or revised licence relates or will relate has or have the requisite technical knowledge or qualifications to carry on that activity in accordance with the licence or revised licence and the other requirements of this Act, and

(c) in the opinion of the Agency, that person is likely to be in a position to meet any financial commitments or liabilities that the Agency reasonably considers have been, or will be entered into or incurred by him in carrying on the activity to which the licence or revised licence relates or will relate, as the case may be, in accordance with the terms thereof or in consequence of ceasing to carry on that activity.

(5) The Agency may, if it considers it proper to do so in any particular case, regard a person as a fit and proper person for the purposes of this Part notwithstanding that that person or any other relevant person is not a person to whom subsection (4)(a) applies.

(6) The references in subsections (4) and (5) to a relevant person are references to a person whom the Agency determines to be relevant for the purposes of considering the application or review concerned having had regard to any criteria that the Minister by regulations provides it is to have regard to in determining such a matter.

Transboundary environmental impacts.

85.—(1) Where—

(a) an activity in respect of which an application for a licence or the review of a licence or a revised licence has been made to the Agency, or

(b) an activity the subject of a licence or revised licence a review of which under section 90 the Agency proposes to conduct,

is likely to have a significant adverse effect on the environment in another Member State of the European Communities, the Minister shall inform that other state of the application or the review.

(2) Where another Member State of the European Communities requests the State to provide to it information in relation to an activity licensable under this Part which, in the opinion of the first-mentioned state, is likely to have a significant adverse effect on that state's environment, the Minister shall request the Agency to provide that state with information in relation to the activity.

(3) Where it comes to the notice of the Agency that an activity or a proposed activity in another Member State of the European Communities is likely to have a significant adverse effect on the environment in the State, the Agency shall inform the Minister of the matter and, when requested to do so by him, assess the matter and advise the Minister of the effect on the environment in the State of that activity.

(4) The Minister may by regulations—

(a) provide for specified procedures to be followed, additional to those specified by or under any other provision of this Act, with respect to—

(i)   the determination of an application for a licence or for the review of a licence or a revised licence, and

(ii)   the review by the Agency, of its own volition, of a licence or a revised licence,

where such licence relates to an activity emissions from which are likely to have a significant adverse effect on the environment in another Member State of the European Communities,

(b) provide for specified procedures to be followed by persons in the State in circumstances where it comes to the notice of such persons that emissions from an activity in another Member State of the European Communities, being an activity the operation of which requires a permit under the Directive, are likely to have a significant adverse effect on the environment in the State.

(5) Without prejudice to the generality of subsection (4), regulations under that subsection may make provision for the following—

(a) in respect of an activity to which subsection (1) or (2) applies—

(i)   requiring the Agency to notify the Minister that the activity is being carried on or is proposed to be carried on;

(ii)   requiring the Agency to submit information to the Minister regarding the activity;

(iii) requiring the Agency to provide information to the other state concerned, its competent authority for the purposes of the Directive (in this paragraph referred to as the ‘competent authority of that state’) or other persons in that state;

(iv) requiring the Agency to consult with the competent authority of that state;

(v)   requiring the Agency to take into consideration any comments from the state concerned, the competent authority of that state or any person in that state;

(vi) enabling the attachment of conditions to a licence or revised licence in order to reduce or eliminate the possible adverse effects on the environment of another Member State of the European Communities;

(vii) extending the period in which a decision is to be made under this Act or any other step is to be taken;

(viii) requiring the Agency to inform the other state concerned of the decision under this Act and to provide to it information in relation to the decision;

(b) in respect of an activity to which subsection (3) applies—

(i)   requiring the Agency to request the competent authority, for the purposes of the Directive, of the other state concerned (in this paragraph referred to as the ‘competent authority of the other state concerned’) to provide to it information regarding the activity or proposed activity;

(ii)   requiring the Agency to consult with the competent authority of the other state concerned;

(iii) requiring the Agency to publish notices in relation to information provided to it pursuant to a request referred to in subparagraph (i);

(iv) requiring the Agency to invite comments in relation to information as aforesaid and to forward such comments to the competent authority of the other state concerned in relation to the activity or proposed activity;

(v)   enabling the Agency to make submissions or observations to the competent authority of the other state concerned in relation to the activity or proposed activity.

(6) The Minister may by regulations provide that this section shall apply to a Member State of the EEA as it applies to a Member State of the European Communities.

(7) In subsection (6) ‘Member State of the EEA’ means a state that is a contracting party to the Agreement on the European Economic Area signed at Oporto on the 2nd day of May, 1992, as amended for the time being.

Conditions attached to a licence.

86.—(1) Without prejudice to the generality of section 83(1), conditions attached to a licence or revised licence granted under this Part—

(a) shall—

(i)   in accordance with section 83(4) and subject to subsection (3), include emission limit values for environmental pollutants likely to be emitted from an activity in significant quantities,

(ii)   specify requirements for the purpose of minimising pollution, including minimising the occurrence of pollution over long distances or in the territory of other states, and to ensure a high level of protection for the environment as a whole,

(iii) if necessary, specify requirements concerning protection of the soil and groundwater, and the management of waste generated by an activity,

(iv) specify appropriate requirements for the purpose of monitoring emissions, including the taking and analysis of samples, the making of measurements in accordance with specified methodologies and frequencies, the evaluation of the results of such monitoring in accordance with specified procedures and the keeping of records and the furnishing of information to the Agency or to any other specified person in relation to such monitoring and evaluation (and such requirements may include a requirement that the licensee confirm whether or not he has complied with the conditions attached to the licence or revised licence and, if he has not complied with any such condition, a requirement that he indicate in what respect he has not complied with the condition),

(v)   specify the measures to be taken other than in the circumstances that prevail during normal operating circumstances and, in particular, measures to be taken if there is a breakdown of any plant or other equipment or procedures which may affect emissions from the activity, including measures to be taken in relation to start-up, shutdown, leaks, malfunctions or momentary stoppages,

(vi) specify that the Agency is to be informed without delay of any incident or accident significantly affecting the environment, and

(vii) specify the measures to be taken, including as appropriate the duration of such measures, on and following the permanent cessation of an activity (including such a cessation resulting from the abandonment of the activity);

(b) may (to the extent that the matter is not provided for by a condition under paragraph (a))—

(i)   specify as appropriate the nature, composition, temperature, volume, level, rate, method of treatment and location of an emission,

(ii)   specify the periods during which an emission may, or may not, be made,

(iii) specify limits to the effects of an emission,

(iv) specify the concentration of an environmental pollutant in an environmental medium or a deposition or discharge rate which shall not be exceeded,

(v)   specify any matters relating to the design, construction or dimensions of pipes, chimneys, flues, stacks or other outlets through which an emission is to be made,

(vi) specify the means (including the provision, operation, maintenance and supervision of plant and other facilities and the use of specified procedures or codes of practice) to be used for controlling an emission,

(vii) specify requirements or limits in relation to the amount or composition of any substance produced by or utilised in the activity in any period,

(viii) require the provision, operation and maintenance of meters, gauges, manholes, inspection chambers and other apparatus and other means for monitoring the nature, extent and effects of emissions,

(ix) specify the type of fuel to be, or not to be, used, as the case may be,

(x) specify measures to be taken after an emission, which is not in accordance with other conditions attached to the licence or revised licence, has taken place,

(xi) specify requirements in relation to the recovery or disposal of waste arising from the activity on land other than land on which the installation is situate and whether in the ownership or occupation of the licensee or not (including requirements with respect to the furnishing of information to the Agency in relation to the land for the time being being used, or land proposed to be used, for the purpose of such recovery or disposal),

(xii) require the making of payments to the Agency in relation to costs incurred in relation to determining whether there has been compliance with the conditions attached to the licence or revised licence or not and in relation to steps taken for the purpose of the monitoring of, or otherwise in relation to, emissions,

(xiii) require the payment to the Agency of a charge or charges prescribed under or calculated in accordance with section 99,

(xiv) require the payment to the sanitary authority concerned of a charge in relation to a discharge to a sewer as provided for under section 99E,

(xv) specify such other conditions or requirements, including requirements in relation to environmental management systems, which the Agency considers necessary for the purposes of the Directive,

(xvi) specify the latest date by which a condition attached to the licence or revised licence is to be complied with,

(xvii) provide for derogations of a temporary nature from the requirements of subsections (1)(a)(ii)   and (3)(c) if a rehabilitation plan, submitted to and approved by the Agency, is implemented in order to ensure that the said requirements will be complied with within 6 months from the date of its first being implemented and the plan will lead to a reduction of emissions,

(xviii) specify, in cases where there are likely to be significant emissions to the environment, appropriate requirements for the purpose of monitoring the ambient environment, including the taking and analysis of samples, the making of measurements in accordance with specified methodologies and frequencies, the evaluation of the results of such monitoring in accordance with specified procedures and the keeping of records and the furnishing of information to the Agency or to any other specified person in relation to such monitoring and evaluation.

(2) In determining the conditions to be attached to a licence or a revised licence in respect of an activity to which paragraph 6.1 or 6.2 of the First Schedule applies, the Agency shall—

(a) for the purposes of subsection (1)(a)(i), take account of practical considerations appropriate to that activity,

(b) for the purposes of subsection (1)(a)(iv), take account of costs and benefits.

(3) (a) Emission limit values for substances shall, save where the Agency directs otherwise, apply at the point where the emissions leave the installation where the activity is being carried on, any dilution being disregarded in making any determination of them.

(b) Emission limit values may, where appropriate, be supplemented or replaced by equivalent parameters or technical measures.

(c) Without prejudice to section 83(5)(b), emission limit values, and equivalent parameters and technical measures shall be based on the best available techniques, without specifying the use of any technique or specific technology, but taking into account the technical characteristics of the activity concerned, its geographical location and the local environmental conditions.

(4) Without prejudice to section 83(5)(b), the Minister may by regulations, after consultation with any other Minister of the Government who, in the opinion of the Minister, is concerned and the Agency—

(a) require either—

(i)   the Agency, in the exercise of its powers under this Part, to attach, or

(ii)   the Agency, in the exercise of those powers, to consider the attachment of,

the conditions referred to in subparagraph (i)   or (ii), as appropriate, of paragraph (b) to a licence or a revised licence granted by it in respect of a specified class or classes of activity (and, accordingly, such conditions shall or may, as appropriate, be attached in place of the conditions that could otherwise be attached in accordance with the preceding provisions of this section),

(b) specify the conditions that are to be the subject of—

(i)   the requirement under paragraph (a)(i), and

(ii)   the requirement under paragraph (a)(ii),

and, in each case, those conditions shall comply with Article 9(8) of the Directive,

(c) provide for any matters consequential on, or incidental to, the foregoing,

(d) in addition to conditions that may be, or are required to be, attached to a licence or revised licence by reason of the foregoing or any other provision of this Part, enable the Agency to attach to a licence or revised licence in respect of a specified class or classes of activity such conditions as the Agency considers appropriate in the circumstances.

(5) Nothing in subsection (4) shall be construed as enabling the Minister to exercise any power or control in relation to the performance by the Agency, with respect to a particular licence, of its functions under this Part.

(6) A person who fails to comply with any condition attached to a licence or revised licence shall be guilty of an offence.

(7) The Agency, or the sanitary authority, as the case may be, may recover the amount of any payment due to it arising from a condition attached to a licence or revised licence as a simple contract debt in any court of competent jurisdiction.

(8) Where a permission under section 34 of the Act of 2000 has been granted or an application has been made for such permission in relation to development comprising or for the purposes of an activity, the Agency—

(a) may consult with the planning authority in whose functional area the activity is or will be situate in relation to any development which is necessary to give effect to any conditions to be attached to a licence or revised licence and which the Agency considers is not the subject of a permission or an application for a permission under section 34 of the Act of 2000, and

(b) may attach to the licence or revised licence such conditions related to the above-mentioned development as may be specified by the planning authority for the purposes of the proper planning and sustainable development of the area or stricter conditions as the Agency may consider necessary for the prevention, limitation, elimination, abatement or reduction of emissions.

(9) Where a planning authority is consulted in accordance with subsection (8)(a), the Agency may specify a period (which period shall not in any case be less than 3 weeks from the date of the request) within which observations must be made.

(10) The Agency may, at any time after expiration of the period specified by it under subsection (9) for making observations, make its decision on the application or review.

(11) Notwithstanding the requirements of Part III of the Act of 2000, works consisting of, or incidental to, the carrying out of development referred to in paragraph (a) of subsection (8) in respect of which conditions have been attached under paragraph (b) of that subsection to the licence or revised licence concerned shall be exempted development within the meaning, and for the purposes, of the Act of 2000.

Processing of applications for licences or reviews of licences.

87.—(1) Without prejudice to the requirements of any regulations under section 85 or 89—

(a) where an applications is to be made to the Agency for a licence under section 83, or the review of a licence or a revised licence under section 90, the applicant shall notify in writing the planning authority in whose functional area the activity is or will be situate and such other person (if any) as may be prescribed, and shall publish or give such notices as may be prescribed under section 89, and

(b) where the Agency proposes to review a licence or revised licence under section 90 of its own volition, it shall publish or give such notice as may be prescribed under section 89, and shall notify in writing the licensee and the planning authority in whose functional area the activity is situate and such other person (if any) as may be prescribed, of its intention to review the licence or revised licence.

(2) Before making its decision under section 83 on an application for a licence, or under section 90 on the review of a licence or revised licence (including such a review conducted by it of its own volition), the Agency shall notify—

(a) the planning authority in whose functional area the activity is or will be situate,

(b) the applicant or the licensee, as the case may be,

(c) any person who made a written submission in relation to the application or the review, and

(d) such other persons as may be prescribed,

and that notification shall indicate the manner in which the Agency proposes to determine the application or the review and, where it is proposed to grant a licence or revised licence, specify where a copy of the proposed licence or proposed revised licence may be obtained.

(3) A notification provided for under subsection (2) shall, without prejudice to the requirements of any regulations under section 85, be given within the period of 8 weeks beginning on the date of receipt by the Agency of the application for a licence under section 83 or for the review of a licence or revised licence under section 90 or, in the case of a review of a licence by the Agency under section 90 of its own volition—

(a) unless paragraph (b) applies, on the date of publication of the notice under subsection (1)(b), in relation to the review,

(b) if the Agency has required under section 90(7) documents, particulars or other information to be furnished, on the date on which that requirement is complied with or, if that requirement is not complied with within the period specified in the requirement in that behalf, on the date immediately following the expiry of that period.

(4) The Agency shall, in relation to an application for a licence, or the review of a licence or revised licence—

(a) in case no objection is taken against the proposed determination as indicated under subsection (2), or

(b) in case an objection or objections is or are taken against the proposed determination as indicated under subsection (2) and the objection or objections is or are withdrawn,

make its decision in accordance with the proposed determination as indicated under subsection (2) and, where it is proposed to grant a licence or revised licence, grant the licence or revised licence as soon as may be after the expiration of the appropriate period.

(5) Any person may, subject to compliance with the requirements of any regulations under sections 89 and 99A at any time before the expiration of the appropriate period, object to the proposed determination as indicated under subsection (2), and shall include with the objection the grounds for the objection.

(6) (a) A person making an objection under subsection (5) may request an oral hearing of the objection.

(b)   (i)   A request for an oral hearing of an objection shall be made in writing to the Agency and shall be accompanied by such fee (if any) as may be payable in respect of such request in accordance with regulations under section 99A.

  (ii)  A request for an oral hearing of an objection which is not accompanied by such fee (if any) as may be payable in respect of such request shall not be considered by the Agency.

(c) A request for an oral hearing of an objection shall be made before the expiration of the appropriate period, and any request received by the Agency after the expiration of that period shall not be considered by it.

(7) An objection, or a request for an oral hearing under subsection (6), shall be made—

(a) by sending the objection or request by prepaid post to the headquarters of the Agency, or

(b) by leaving the objection or request with an employee of the Agency, at the headquarters of the Agency, during office hours, or

(c) by such other means as may be prescribed.

(8) (a) Where a request for an oral hearing of an objection is made in accordance with subsection (7), or otherwise where an objection has been made, the Agency shall have an absolute discretion to hold an oral hearing in relation to the objection and the related matters and, if it decides to hold such a hearing, it shall give notice in writing of that decision to—

(i)   the applicant, or in the case of a review, the licensee,

(ii)   the local authority in whose functional area the activity the subject matter of a licence application or review will be or is situate,

(iii) any person who requested an oral hearing, and

(iv) such other person as may be prescribed.

(b) Where the Agency decides not to hold an oral hearing under this subsection, it shall give notice in writing of its decision and of the reasons for the decision to the person who requested the oral hearing.

(9) It shall be a duty of the Agency to ensure that a decision by it to hold an oral hearing, and a decision by it on the application for a licence or on the review referred to in subsection (2) of a licence or revised licence whether or not an oral hearing has been held, shall be given as expeditiously as may be and for that purpose the Agency shall take all such steps as are open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in the consideration of objections.

(10) A person shall not by any application for judicial review or in any other legal proceedings whatsoever question the validity of a decision of the Agency to grant or refuse a licence or revised licence (including a decision of it to grant or not to grant such a licence on foot of a review conducted by it of its own volition) unless the proceedings are instituted within the period of 8 weeks beginning on the date on which the licence or revised licence is granted or the date on which the decision to refuse or not to grant the licence or revised licence is made.

(11) The provisions of this section shall not, to such extent as may be prescribed, apply to an application for a licence, or to the review (including a review by the Agency of its own volition) of a licence or revised licence, to discharge to a sewer.

(12) In this section, ‘the appropriate period’ means the period of 28 days beginning on the day on which notification is sent under subsection (2) in respect of the matter concerned.

(13) When calculating the appropriate period or any other time limit under this Act or in any regulations made under this Act, the period between the 24th day of December and the 1st day of January, both days inclusive, shall be disregarded.

Oral hearing and written report.

88.—(1) (a) An oral hearing provided for in section 87 shall be conducted by a person or persons appointed for that purpose by the Agency.

 (b) Subject to any regulations under subsection (5), the manner in which a hearing aforesaid is conducted shall be at the discretion of the person or persons appointed under this subsection but it shall be the duty of that person or those persons, as the case may be, to ensure that the hearing is conducted without undue formality.

(2) The person or persons appointed under subsection (1) may take evidence on oath or affirmation at the oral hearing and for that purpose may administer oaths or affirmations, and a person giving evidence at such a hearing shall be entitled to the same immunities and privileges as if he were a witness before the High Court.

(3) The person or persons appointed under subsection (1) shall make a written report on the objection or the objections made under section 87(5) and the hearing to the Agency and shall include in the report a recommendation relating to the grant or refusal of a licence or a revised licence and, where appropriate, the conditions to be attached to the licence or revised licence.

(4) The Agency shall consider a report made under subsection (3) before making a decision on the application for a licence, or on the review of a licence or revised licence.

(5) The Minister may make regulations in relation to the conduct of an oral hearing and the procedures at such a hearing.

Regulations regarding licences.

89.—(1) The Minister may make regulations in relation to—

(a) applications for the grant of licences, or for the review of licences or revised licences,

(b) the review of licences or revised licences by the Agency of its own volition, and

(c) the granting of licences or revised licences.

(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision for all or any of the following—

(a) the form and content of application and of licence,

(b) the time within which an application for a licence shall be made relative to publication of a notice under section 87(1) and relative to an application for a permission under Part III of the Act of 2000,

(c) the publication by applicants, licensees or the Agency of such notices as may be specified,

(d) specifying the submissions, plans, documents and other information and particulars, including environmental impact statements, to be forwarded to the Agency or other specified person by applicants, licensees, objectors, or other persons within such periods as may be specified,

(e) requiring applicants, licensees, objectors or other persons to furnish to the Agency or any other specified person, within such period as may be specified, such additional information or particulars relating to applications, including environmenttal impact statements, or reviews as the Agency may request,

(f) without prejudice to the requirements of any regulations under section 85, extending the period within which a notification to which section 87(3) refers shall be published—

(i)   to 8 weeks beginning on the date on which a request for additional information, particulars or evidence under paragraph (e) or (g) is complied with,

(ii)   to any period with the consent of the applicant or licensee,

(iii) to 8 weeks beginning on the day on which any exemption under section 172(3)(a) of the Act of 2000 in relation to development to which the application relates has been granted by An Bord Pleanála,

(g) requiring the production, within such period as may be specified, of such evidence as the Agency may request for the purposes of verifying any information and particulars given by an applicant, licensee, objector or other person,

(h) procedures to be followed by the Agency in the processing of applications or reviews, including procedures for consultation in relation to an environmental impact statement whether or not an oral hearing is held, and the times within which such procedures shall be carried out,

(i) the publishing of decisions on applications or reviews and the reasons therefor and of any specified documents or other information in relation thereto, or

(j) requiring an applicant or licensee to defray or contribute towards the cost of any investigation carried out, caused to be carried out, or arranged for, by the Agency in relation to an application or review.

(3) (a) A person who in relation to an application for a licence, or to a review of a licence or revised licence, under this Part, makes a statement in writing which to his knowledge is false or misleading in a material respect, shall be guilty of an offence.

(b) Where a person is convicted of an offence under this subsection, any licence or revised licence granted to that person, or to some other person on whose behalf the convicted person was authorised to act, consequent on the application or review in relation to which the information was furnished, shall stand revoked from the date of the conviction.

(4) Regulations under this section may contain—

(a) such incidental, supplementary, consequential and transitional provisions as appear to the Minister to be necessary for the purposes or in consequence of, or to give full effect to, the regulations,

(b) such provisions as appear to the Minister to be necessary for the purposes or in consequence of the requirements of Council Directive 85/337/EC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment1 .

(5) A defrayment or contribution the payment of which is required under regulations made under this section shall be payable on demand and, in default of being so paid, shall be recoverable as a simple contract debt in any court of competent jurisdiction.

Review of licences.

90.—(1) The Agency—

(a) shall, subject to subsections (4) and (5) and section 99I(7), either periodically or after such period as may be prescribed (but not before the expiry of 3 years from the date on which the licence or revised licence was granted), review a licence or revised licence, and

(b) may review a licence or revised licence at any time with the consent or on the application of the licensee.

(2) As soon as may be after it has completed a review under this section, the Agency may—

(a) in the case of a licence or revised licence—

(i)   refuse to grant a revised licence, or

(ii)   amend the licence by altering any or all of the conditions thereto (and a licence that is so amended is referred to in this Act as a ‘revised licence’), or

(b) in the case of—

(i)   a licence, grant to the licensee a licence (in this Act also referred to as a ‘revised licence’) the conditions of which are, in such respects as the Agency thinks appropriate, different from those of the first-mentioned licence and the revised licence shall have effect in lieu of the first-mentioned licence,

(ii)   a revised licence, exercise, in relation to it, a like power to that which it may exercise under subparagraph (i)   in relation to a licence and a licence granted under this subparagraph is in this Act also referred to as a ‘revised licence’ and such a licence shall have effect in lieu of the first-mentioned revised licence.

(3) The reference where it first occurs in subparagraph (ii)   of subsection (2)(b) to a revised licence includes—

(a) a reference to a licence or revised licence in relation to which the powers under subsection (2)(a)(ii)   have been exercised, and

(b) a reference to a revised licence previously granted or, as the case may be, last previously granted under subparagraph (ii)   of subsection (2)(b).

(4) Notwithstanding anything in subsection (1), a licence or revised licence—

(a) shall be reviewed by the Agency if the Agency considers—

(i)   that emissions from the activity to which the licence or revised licence relates are, or are likely to be, of such significance that the existing emission limit values, or equivalent parameters or technical measures specified in the licence or revised licence need to be reviewed or new such values, parameters or measures, as the case may be, need to be specified in the licence or revised licence,

(ii)   that substantial changes in best available techniques make it possible to reduce emissions significantly from the said activity without imposing excessive costs,

(iii) that the operational safety of the said activity requires techniques, other than those currently being used in respect of it, to be used, or

(iv) that such a review is required by virtue of any act adopted by an institution of the European Communities or any agreement entered into by the State, or any enactment passed or made after the licence or revised licence was granted or last reviewed under this section,

(b) may be reviewed by the Agency if—

(i)   there is a proposal to make a substantial change to the nature or extent of an emission,

(ii)   there has been a substantial change, which could not have reasonably been foreseen when the licence or revised licence was granted, in the condition of the environment or an environmental medium in the area in which the activity to which the licence or revised licence relates is situate,

(iii) evidence, which was not available when the licence or revised licence was granted, has become available, or a new standard is prescribed relating to the contents or nature of the emission concerned or the effects of the emission on the environment.

(5) If—

(a) a special control area order under section 39 of the Air Pollution Act 1987 , affecting any emission from the activity to which the licence relates comes into operation in relation to the area in which the activity is situate,

(b) an air quality standard is specified in regulations made under section 50 of the Air Pollution Act 1987 , in relation to any emission from the activity to which the licence relates,

(c) a relevant emission limit value is specified in regulations under section 51 of the Air Pollution Act 1987 , in relation to any emission from the activity to which the licence relates,

(d) regulations under section 26 of the Local Government (Water Pollution) Act 1977 , relate to an effluent the discharge of which is authorised by such a licence or to the waters to which such effluent is discharged,

(e) a relevant standard is prescribed under regulations made under the European Communities Act 1972 , or any other enactment, or

(f) relevant regulations under section 106 are made in relation to any noise emissions from the activity to which the licence relates,

the Agency shall, where necessary and notwithstanding anything in subsection (1), as soon as may be after the regulations are made or the order comes into operation, as the case may be, review the licence or revised licence.

(6) In the review of a licence or revised licence under this section, the Agency shall have regard to—

(a) any change in environmental quality in the area in which the activity to which the licence or revised licence relates is situate, and

(b) the development of technical knowledge in relation to environmental pollution and the effects of such pollution,

since the licence or revised licence was granted or last reviewed.

(7) For the purposes of a review under this section, the Agency may, by notice served on the licensee, require the licensee to furnish to it, within such period as it specifies in the requirement, such documents, particulars or other information as it so specifies.

Register of licences.

91.—(1) The Agency shall maintain a register (in this Act referred to as the ‘register of licences’) for the purposes of this Part and shall make therein all such entries and additions as may, from time to time, be prescribed.

(2) The register of licences shall be kept at the headquarters of the Agency and shall be made available for inspection by any person free of charge during office hours.

(3) When a request is made to the Agency for a copy of an entry in the register of licences, the copy shall be issued to the person requesting it on the payment by him to the Agency of such fee (if any) as the Agency shall fix not exceeding the reasonable cost of making the copy.

(4) Every document purporting to be a copy of an entry in the register of licences and purporting to be certified by an officer of the Agency to be a true copy of the entry shall, without proof of the signature of the person purporting so to certify or that he was such officer, be received in evidence in any legal proceedings and shall, unless the contrary is shown, be deemed to be a true copy of the entry and be evidence of the terms of the entry.

(5) Evidence of an entry in the register of licences may be given by production of a copy thereof certified pursuant to this section and it shall not be necessary to produce the register of licences itself.

(6) Every entry in the register of licences relating to an activity in the functional area of a planning authority shall be notified to that planning authority by the Agency as soon as may be and the planning authority shall maintain a copy of these notifications in a register which shall be made available for inspection by any person free of charge during office hours.

Limit on duration of licence.

92.—(1) Where, in the opinion of the Agency, the carrying on of the activity to which a licence or revised licence relates has not been substantially commenced within the period of 3 years beginning on the date on which the licence was granted or, as may be appropriate, the period referred to in paragraph (a) or (b) of subsection (2), and the Agency notifies the licensee of that opinion, then that licence shall cease to have effect on the giving of that notice.

(2) The Agency may, having regard to the nature of the activity to which a licence or revised licence to be granted or granted by it will relate or relates, as the case may be, and any arrangements necessary to be made or made in connection with the carrying on of the activity and any other relevant consideration—

(a) specify for the purposes of subsection (1) a period of more than 3 years beginning on the date on which the licence or revised licence is to be granted,

(b) in the case of a licence or revised licence granted by it, on an application which complies with such requirements (if any) as may be prescribed being made by the licensee in that behalf, extend for the purposes of subsection (1) the period referred to in that subsection or specified by it under paragraph (a), as may be appropriate.

(3) Where the activity to which a licence or revised licence relates ceases to be carried on then, unless the activity is resumed within the period of 3 years beginning on the date of that cessation, the licence shall cease to have effect on the expiry of the said period.

(4) The cesser of a licence's or a revised licence's effect under this section shall in no way affect or diminish such conditions, requirements or obligations applying to or falling on the licensee as are specified in or arise under the licence.

Benefit of licences.

93.—Where a licence or revised licence is granted under this Part, the grant of the licence or revised licence shall, except as may be otherwise provided by the licence or revised licence and subject to section 94 and the other provisions of this Part, enure for the benefit of the activity and of all persons for the time being interested therein.

Transfer of licences.

94.—(1) A licence or revised licence under this Part may be transferred from the licensee to another person in accordance with this section.

(2) Where the licensee desires that his licence or revised licence be transferred to another person (hereafter in this section referred to as ‘the proposed transferee’), the licensee and the proposed transferee shall jointly make an application to the Agency requesting that such a transfer be effected by the Agency.

(3) An application under subsection (2) shall be made in such form and include such information as may be prescribed and shall be accompanied by such fee as may be prescribed under section 99A and by the licence or revised licence concerned.

(4) The Agency may require the provision of such further information by the licensee or the proposed transferee as it considers appropriate for the purposes of dealing with an application made by them under this section.

(5) If, on consideration of an application under subsection (2), and any relevant information provided in respect thereof, the Agency is satisfied—

(a) that the proposed transferee would, if he were an applicant for the licence, be regarded by it as a fit and proper person to be granted under section 83 a like licence to the licence or revised licence concerned,

(b) that the proposed transferee has complied with any requirements under section 83(6), and

(c) regarding such other matters as may be prescribed,

it shall effect a transfer of the licence or revised licence to the proposed transferee in such manner as may be prescribed.

(6) A person to whom a licence or revised licence is transferred under this section shall be deemed to have assumed and accepted all liabilities, requirements and obligations provided for in or arising under the licence or revised licence, regardless of how and in respect of what period, including a period prior to the transfer of the licence or revised licence, they may arise.

Surrender of licences.

95.—(1) A licence or a revised licence granted under this Part may be surrendered by the licensee, but only if the Agency accepts the surrender.

(2) A licensee who desires to surrender his licence or revised licence shall make an application for that purpose to the Agency, in such form, giving such information and accompanied by such evidence as may be prescribed and accompanied by such fee as may be prescribed under section 99A.

(3) Upon receiving an application for the surrender of a licence or revised licence, the Agency—

(a) shall inspect the installation at which the activity to which the licence or revised licence relates is carried on (‘the relevant installation’), and

(b) may require the applicant to furnish to it such further information or evidence as it may specify.

(4) For the purpose of subsection (3), the Agency may, by notice in writing served on the person, require a person who has made an application to it under subsection (2) to carry out, or arrange to have carried out, in such manner as may be specified in the notice, such monitoring, sampling and investigations, in addition to those which may be required under a condition attached to the licence or revised licence concerned, as the Agency considers necessary, and so specifies, and any requirement so made shall be regarded as a condition attaching to that licence or revised licence.

(5) Where the Agency proposes to accept the surrender of a licence or a revised licence, it shall consult with such persons and in accordance with such procedures as may be prescribed.

(6) Having regard to such information or evidence as is furnished to it under paragraph (b) of subsection (3) and to the results of an inspection under paragraph (a) of that subsection and of any monitoring, sampling and investigation required to be carried out under subsection (4), the Agency shall assess the condition of the relevant installation, so far as that condition is the result of the use of the installation for an activity, (whether the activity, the subject of the licence concerned or, if the installation, in contravention of the licence, was used for the carrying on of any other activity within the meaning of this Act, that activity) and the likely effect on the environment or any environmental medium of any emissions from the relevant installation that may occur.

(7) If the Agency is satisfied that the condition of the relevant installation is not causing or likely to cause environmental pollution and the site of the activity is in a satisfactory state, it shall accept the surrender of the licence or revised licence, but otherwise shall refuse to accept the surrender of the licence or revised licence.

(8) A decision of the Agency under subsection (7) shall be conveyed to—

(a) the applicant concerned,

(b) the local authority in whose functional area the activity, the subject matter of the licence or revised licence, has been carried on, and

(c) any person concerned that it has consulted under subsection (5),

by notice in writing, as soon as may be after the decision is made and where the decision is a decision to accept the surrender of a licence or revised licence, that licence or revised licence shall cease to have effect upon the service of the said notice.

(9) The making of an application for the surrender of a licence or revised licence under this section, or the cesser of the activity to which a licence relates, shall in no way affect or diminish such conditions, requirements or obligations applying to or falling on the licensee as are specified in or arise under the licence or revised licence.

Amendments of licence of clerical or technical nature.

96.—(1) The Agency may amend a licence or revised licence for the purposes of—

(a) correcting any clerical error therein,

(b) facilitating the doing of any thing pursuant to a condition attached to the licence where the doing of that thing may reasonably by regarded as having been contemplated by the terms of the condition or the terms of the licence taken as a whole but which was not expressly provided for in the condition, or

(c) otherwise facilitating the operation of the licence and the making of the amendment does not result in the relevant requirements of section 83(5) ceasing to be satisfied.

(2) None of the requirements of section 90 or of any other provision of this Part shall apply to the exercise of the power under subsection (1) but the Agency shall, where appropriate, consult with the licensee before exercising the power.

(3) The Agency shall, as soon as may be after the exercise of the power under subsection (1), notify particulars of the amendment effected by that exercise to each person who made an objection to the Agency under section 87(5) in relation to any exercise of the powers under section 83 or 90 as respects the licence or revised licence concerned.

Revocation or suspension of licence in certain circumstances.

97.—(1) The Agency may revoke, or suspend the operation of, a licence or revised licence if it appears to the Agency that—

(a) the licence no longer satisfies the requirements specified in section 84(4) for his being regarded as a fit and proper person, and

(b) the circumstances occasioning his no longer satisfying those requirements are, in the opinion of the Agency, of such seriousness as to warrant the revocation of the licence or the suspension of its operation.

(2) References in this Act to the cessation of the activity to which a licence or revised licence relates shall be construed as including references to such a cessation in consequence of the revocation of the licence.

(3) None of the requirements of section 90 or of any other provision of this Part shall apply to the exercise of the power under subsection (1) but where the Agency proposes to exercise the power it shall afford the licensee and any other person whom it considers ought to be afforded such an opportunity an opportunity to make representations to it in relation to the matter.

(4) The cesser of a licence's or a revised licence's effect under this section shall in no way affect or diminish such conditions, requirements or obligations (being conditions, requirements or obligations that apply to, or fall on, the licensee by virtue of the licence) as may be specified by the Agency in exercising the powers under this section.

(5) The licensee or the former licensee may appeal to the High Court against a revocation or suspension of a licence or revised licence under this section and, on the hearing of the appeal, the High Court may confirm or annul the revocation or suspension or, in the case of a suspension, vary the period for which the suspension shall operate.

(6) The Minister may by regulations make such incidental, consequential or supplementary provision as may appear to him to be necessary to give full effect to any of the provisions of this section.

Alterations of activity.

98.—(1) The person in charge of—

(a) an activity in respect of which a licence or revised licence is in force or required under this Part, or

(b) an established activity which for the time being is not required to be licensed under this Act,

shall give notice in writing to the Agency of any proposal to effect any alteration to, or reconstruction in respect of, the activity if such alteration or reconstruction would, or is likely to, change or increase emissions from the activity or cause new emissions therefrom.

(2) Whenever the Agency receives a notice under this section or otherwise becomes aware of an alteration or reconstruction referred to in subsection (1) which would not, in the opinion of the Agency, substantially change or increase emissions from the activity or cause significant new emissions therefrom, the Agency, notwithstanding any other provision of this Act, may—

(a) if there is a licence or revised licence in force in respect of the activity concerned, review that licence under section 90 and exercise the powers under paragraph (a) or (b) of subsection (2) of that section in relation to it,

(b) if there is no such licence in force, direct, by notice served on the person, the person in charge to apply for a licence, or

(c) determine that no further action is necessary in relation to the matter,

and, save in a case falling within paragraph (c), the person in charge shall not effect the alteration or reconstruction unless and until the powers under paragraph (a) or (b) of that subsection (2) have been exercised in a way that allows or, as the case may be, a new licence or licence has been granted that allows, the alteration or reconstruction to be effected.

(3) Whenever the Agency receives a notice under this section or otherwise becomes aware of an alteration or reconstruction referred to in subsection (1) which would, in the opinion of the Agency, substantially change or increase emissions from the activity or cause significant new emissions therefrom, the Agency, notwithstanding any other provision of this Act, shall—

(a) if there is a licence or revised licence in force in respect of the activity concerned, either review that licence under section 90 and exercise the powers under paragraph (a) or (b) of subsection (2) of that section in relation to it or direct the person in charge to apply for a new licence in substitution for that licence, or

(b) if there is no such licence in force, direct, by notice served on the person, the person in charge to apply for a licence,

and the person in charge shall not effect the alteration or reconstruction unless and until the powers under paragraph (a) or (b) of that subsection (2) have been exercised in a way that allows or, as the case may be, a new licence or licence has been granted that allows, the alteration or reconstruction to be effected.

(4) Where the Agency decides pursuant to subsection (2) or (3) to review a licence or revised licence, or to direct a person to apply for a new licence or, as the case may be, a licence, the Agency shall—

(a) within 1 month of the receipt by it of the notice under this section, or the date on which the Agency otherwise becomes aware of the matters referred to at subsection (1), inform the person accordingly, and

(b) proceed to complete the review of the licence or revised licence and exercise the appropriate powers under subsection (2) of section 90 in relation to it, or determine the application for a new licence or licence, as the case may be.

(5) Not later than the end of 3 months from the commencement of section 15 of the Protection of the Environment Act 2003, a person in charge of an established activity shall, if—

(a) an alteration or reconstruction in respect of that activity was effected on or after 30 October 1999 but before the commencement of that section 15 ,

(b) that alteration or reconstruction was not required to be notified to the Agency under section 92(1) of the previous Part IV, and

(c) that alteration or reconstruction has changed or increased, or is likely to change or increase, emissions from that activity or is likely to cause new emissions therefrom,

give notice in writing of that alteration or reconstruction to the Agency and such a notice shall be dealt with by the Agency as if it were a notice received by it under subsection (1).

(6) If a notice is given to the Agency under and in accordance with subsection (5) in relation to the activity concerned, the activity may continue to be carried on save where (if such be the case), in consequence of the exercise of any of the powers referred to in subsection (2) or (3), it becomes unlawful or unlawful, otherwise than in specified circumstances, to carry on the activity.

Charges in relation to emissions.

99.—(1) The Agency may, in accordance with regulations made by the Minister, with the consent of the Minister for Finance and the Minister for Enterprise, Trade and Employment, under this section, make charges in relation to such emissions to the environment from such activities as may be specified in the regulations.

(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision for all or any of the following purposes—

(a) specifying the emissions in relation to which a charge under this section may be imposed,

(b) specifying the manner in which such a charge is to be imposed,

(c) specifying the method by which the amount of such charge is to be calculated,

(d) enabling the Agency to make different charges under this section in respect of different emissions and in different circumstances,

(e) specifying the manner in which representations may be made to the Agency regarding the imposition of a charge under this section and providing for the procedures to be followed in respect of such representations,

(f) providing for the amendment, revocation or review of charges imposed under this section.

(3) The Agency may recover the amount of any charges made by it under this section from the person by whom they are payable as a simple contract debt in any court of competent jurisdiction.

Fees.

99A.—(1) The Minister may make regulations providing for the payment to the Agency, or such other public authority or other body as may be specified, of fees in relation to—

(a) applications for licences under section 83,

(b) applications for reviews of licences or revised licences under section 90,

(c) reviews carried out pursuant to determinations under section 82(10)(b),

(d) examinations carried out under section 82(10)(a),

(e) an objection made to the Agency under section 87(5),

(f) a request for an oral hearing under section 87,

(g) an application made to the Agency in relation to the extension for the purposes of section 92 of a period mentioned in that section,

(h) applications for the transfer of licences or revised licences under section 94,

(i) applications for the surrender of licences or revised licences under section 95,

(j) the operation of an accreditation scheme or an analytical quality control programme under section 66,

(k) the operation of a labelling scheme under section 78,

(l) the operation of a system of control for the prevention or limitation of noise under section 106, or

(m) the operation of a system of control over genetically modified organisms under section 111,

and the regulations may provide for different fees or for exemption from the payment of fees or for the waiver, remission or refund (in whole or in part) of fees in different circumstances or classes of circumstances or for different cases or classes of cases and for the manner in which fees are to be disposed of.

(2) Where under regulations under this section a fee is payable in respect of any application or matter, the application or matter shall be invalid and shall not be decided or otherwise dealt with, as may be appropriate, by the Agency or such other public authority or other body as may be concerned unless the Agency or other public authority or other body, as the case may be, is in receipt of the fee.

(3) Regulations under paragraph (a), (b) or (c) of subsection (1) shall not be made otherwise than with the consent of the Minister for Finance and the Minister for Enterprise, Trade and Employment.

Special cases.

99B.—(1) The Minister may, by order, as respects any process, development or operation that is not specified in the First Schedule, do both of the following, namely, provide that—

(a) any requirement under—

(i)   Part III of the Air Pollution Act 1987 ,

(ii)    section 4 or 16 of the Local Government (Water Pollution) Act 1977 , or

(iii) section 171 of the Fisheries (Consolidation) Act 1959 ,

as appropriate, that a licence under such an enactment be in force for the carrying on of the process, development or operation shall cease to apply to it,

and

(b) a licence under this Part shall be required for the carrying on of it,

and where such an order is made the provisions of this Act shall apply in relation to the process, development or operation concerned as if it were an activity for so long as the order remains in force.

(2) Without prejudice to the generality of subsection (1), an order under this section may be made—

(a) because of the location of the process, development or operation, or the quality of the environment in the area in which the process, development or operation will be carried out,

(b) because, at the time of the enactment of this Act or the most recent amendment of the First Schedule, no such process, development or operation existed in the State, or

(c) because evidence related to any impact on the environment of such process, development or operation which was not available has become available.

Monitoring of environmental quality and emissions.

99C.—(1) The Agency shall, in relation to an activity, carry out, cause to be carried out, or arrange for, such monitoring of—

(a) environmental quality, and

(b) the nature, extent and effects of emissions to the environment,

as the Agency may consider necessary for the performance of its functions under this Part.

(2) The Agency may, as it considers necessary, by notice served on the person, require the person in charge of an activity from which there is an emission to the environment to carry out such monitoring of the nature, extent and effect of the emission and of the quality of any environmental medium likely to be affected by such emission, and to keep and to supply to the Agency such records of the monitoring, as the Agency considers necessary.

(3) The Agency shall carry out, cause to be carried out, or arrange for, such monitoring or other measures as it considers necessary to verify the monitoring or records of such monitoring provided for under subsection (2).

(4) The Agency shall, if so directed by the Minister, supply to him or to any person specified by him, at such intervals and in such manner as the Minister may direct, records of any monitoring carried out under this section.

Mass balances of specified substances.

99D.—(1) The Minister may, for the purposes of—

(a) determining the extent of, and making available to members of the public information in relation to, the release of substances to environmental media resulting from the use or consumption of any specified class or classes of substance in any specified class or classes of process, development or operation (whether or not comprising an activity to which this Part applies),

(b) determining, and making available information in relation to, the relationship (‘the mass balance’) between such a release of a substance and the use or consumption of a substance aforesaid in a process, development or operation aforesaid,

make regulations requiring a person who carries out a process, development or operation aforesaid to make such determination of, and provide to the Agency or specified public authorities, or publish, such information in relation to, the matters referred to in paragraphs (a) and (b) as may be specified in the regulations.

(2) Without prejudice to the generality of subsection (1), regulations under this section may provide for all or any of the following:

(a) requiring the person concerned to make on specified dates or at specified intervals measurements, calculations, estimates or projections of the release of substances to environmental media,

(b) prescribing the methods or procedures to be used in the making of such measurements, calculations, estimates or projections,

(c) requiring records or registers in a specified form to be kept by the person concerned of, or in which there shall be entered by him, specified particulars as respects the release of substances to environmental media and the use or consumption of any substance in a process, development or operation that gives rise to such a release,

(d) the intervals and the manner in which information as respects the matters aforesaid shall be provided by the person concerned to the Agency or other public authorities or be published,

(e) matters consequential on, or incidental to, the foregoing.

(3) The Agency and any prescribed public authority shall each publish information that has been provided to it pursuant to regulations under this section in such manner and subject to such conditions as may be prescribed.

Discharges to sewers.

99E.—(1) Where the Agency proposes to grant a licence (including a revised licence) which involves a discharge of any trade effluent or other matter (other than domestic sewage or storm water) to a sewer, it shall obtain the consent of the sanitary authority in which the sewer is vested, or by which the sewer is controlled, to such a discharge being made.

(2) Where consent is sought in accordance with subsection (1), the Agency may specify a period (which period shall not in any case be less than 4 weeks from the date on which the consent is sought) within which the consent may be granted subject to, or without, conditions or refused; any consent purporting to be granted (whether subject to or without conditions) after the expiry of that period, or any decision given purporting to refuse consent after that expiry, shall be invalid and in those circumstances the Agency may proceed to grant the licence concerned as if the requirements of subsection (1) had been satisfied.

(3) Subject to subsection (4), a consent under subsection (1) may be granted subject to or without conditions and if it is granted subject to conditions the Agency shall include in the licence or revised licence concerned conditions corresponding to them or, as the Agency may think appropriate, conditions more strict than them.

(4) The conditions that may be attached to a consent by a sanitary authority under this section are the following and no other conditions, namely conditions—

(a) relating to—

(i)   the nature, composition, temperature, volume, level, rate, and location of the discharge concerned and the period during which the discharge may, or may not, be made,

(ii)   the provision, operation, maintenance and supervision of meters, gauges, manholes, inspection chambers and other apparatus and other means for monitoring the nature, extent and effect of emissions,

(iii) the taking and analysis of samples, the keeping of records and furnishing of information to the sanitary authority,

(b) providing for the payment by the licensee to the sanitary authority concerned of such amount or amounts as may be determined by the sanitary authority having regard to the expenditure incurred or to be incurred by it in monitoring, treating and disposing of discharges of trade effluent, sewage effluent and other matter to sewers in its functional area or a specified part of its functional area,

(c) specifying a date not later than which any conditions attached under this section shall be complied with,

(d) relating to, providing for or specifying such other matter as may be prescribed.

(5) A sanitary authority may request the Agency to review a licence or revised licence to which this section relates—

(a) at intervals of not less than 3 years from the date on which the licence or the revised licence is granted, or

(b) at any time with the consent, or on the application, of the person making, causing or permitting the discharge, or

(c) at any time if—

(i)   the sanitary authority has reasonable grounds for believing that the discharge authorised by the licence or revised licence is, or is likely to be, injurious to public health or is likely to render the waters to which the sewer concerned discharges unfit for use for domestic, commercial, industrial, fishery (including fish-farming), agricultural or recreational uses or is, or is likely to be otherwise, a serious risk to the quality of the waters,

(ii)   there has been a material change in the nature or volume of the discharge,

(iii) there has been a material change in relation to the waters to which the sewer concerned discharges, or

(iv) further information has become available since the date on which the licence or revised licence was granted relating to polluting matter present in the discharge concerned or relating to the effects of such matter,

and the Agency shall consider and may comply with such request and shall have regard to any submission on the matter received from the sanitary authority.

Application of other Acts.

99F.—(1) Notwithstanding section 34 of the Act of 2000, or any other provision of that Act, where a licence or revised licence under this Part has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála shall not, where it decides to grant a permission under section 34 of that Act in respect of any development comprising or for the purposes of the activity, subject the permission to conditions which are for the purposes of—

(a) controlling emissions from the operation of the activity, including the prevention, elimination, limitation, abatement, or reduction of those emissions, or

(b) controlling emissions related to or following the cessation of the operation of the activity.

(2) Where a licence or revised licence under this Part has been granted or is or will be required in relation to an activity, a planning authority or An Bord Pleanála may, in respect of any development comprising or for the purposes of the activity, decide to refuse a grant of permission under section 34 of the Act of 2000, where the authority or An Bord Pleanála considers that the development, notwithstanding the licensing of the activity under this Part, is unacceptable on environmental grounds, having regard to the proper planning and sustainable development of the area in which the development is or will be situate.

(3) (a) Before making a decision in respect of a development comprising or for the purposes of an activity, a planning authority or An Bord Pleanála may request the Agency to make observations within such period (which period shall not in any case be less than 3 weeks from the date of the request) as may be specified by the authority or the Board in relation to the development, including in relation to any environmental impact statement submitted.

(b) When making its decision, the authority or An Bord Pleanála, as the case may be, shall have regard to the observations, if any, received from the Agency within the period specified under paragraph (a).

(4) The planning authority or An Bord Pleanála may, at any time after the expiry of the period specified by the authority or An Bord Pleanála under subsection (3)(a) for making observations, make its decision on the application or appeal.

(5) The Minister may be regulations make such incidental, consequential or supplementary provision as may appear to him to be necessary or proper to give full effect to any of the provisions of this section.

(6) Without prejudice to the generality of subsection (5), regulations under this section may provide for matters of procedure in relation to the request for or the making of observations from or by the Agency under this section and related matters.

(7) The making of observations by the Agency under this section shall not prejudice any other function of the Agency under this Act.

(8) Notwithstanding the provisions of the Minerals Development Acts 1940 to 1999, where a licence or revised licence under this Part has been granted or is or will be required in relation to an activity, a lease granted by the Minister for Communications, Marine and Natural Resources under the said Acts in respect of the same activity shall not contain conditions which are for the purpose of the prevention, elimination, limitation, abatement or reduction of emissions to the environment from the activity.

(9) Without prejudice to the preceding subsections, where a licence or revised licence under this Part is granted in relation to an activity and—

(a) a permission under section 34 of the Act of 2000, or

(b) a lease under the Minerals Development Acts 1940 to 1999,

has been granted in respect of the same activity or in relation to development for the purposes of it, any conditions attached to that permission or contained in that lease, as the case may be, shall, so far as they are for the purposes of the prevention, elimination, limitation, abatement or reduction of emissions to the environment, cease to have effect.

(10) The grant of a permission or lease under any of the Acts of the Oireachtas referred to in this section in relation to any activity shall not prejudice, affect or restrict in any way the application of any provision of this Act to such activity.

Transitional arrangements.

99G.—(1) Without prejudice to the requirements of the Directive, where the Agency proposes to grant a licence or revised licence in respect of an established activity for which a licence has been granted under—

(a) Part III of the Air Pollution Act 1987 ,

(b) section 4 or 16 of the Local Government (Water Pollution) Act 1977 , or

(c) section 171 of the Fisheries (Consolidation) Act 1959 ,

the Agency shall, if the licence or revised licence under this Part is being granted during the period of 3 years from the grant of a licence referred to in paragraph (a), (b) or (c), have regard to the conditions (if any) attached to such licence and the costs in relation to the activity which would be incurred if different conditions were attached to the licence or revised licence to be granted by the Agency.

(2) On and after the commencement of section 15 of the Protection of the Environment Act 2003, the Agency shall ensure that an activity for which a licence is required under this Part is carried on in accordance with the enactments mentioned in subsection (1) until a licence under this Part is granted in respect of the activity and any reference to a local authority, sanitary authority or the Minister for Communications, Marine and Natural Resources in any licence or any conditions attached to a licence granted under the above-mentioned enactments in relation to such activity shall be deemed to be a reference to the Agency.

(3) The Minister may, for the purposes of subsection (2), make regulations providing that such functions conferred by the enactments mentioned in subsection (1) as are specified in the regulations shall, to such extent as may be so specified, be performable by the Agency in lieu of the local authority, sanitary authority or the Minister for Communications, Marine and Natural Resources in relation to the activities concerned.

(4) Where, immediately before the commencement of section 15 of the Protection of the Environment Act 2003, there is an application for a licence or a review of a licence under an enactment mentioned in paragraph (a), (b) or (c) of subsection (1) in respect of an activity for which a licence under this Part is required, and the application or review has yet to be determined, the application or review shall be dealt with and decided under this Part by the Agency as if it were an application to the Agency for a licence under this Part and the local authority or sanitary authority or the Minister for Communications, Marine and Natural Resources, as the case may be, shall furnish the Agency, within a period of 1 month from the commencement of that section or 14 days from the date of a request from the Agency for any documents or information, whichever shall be the later, with all such documents and information in its or his possession as it may require for this purpose.

(5) The day or the last of the days, as may be appropriate, on which all the documents and information referred to in subsection (4) are furnished to the Agency in accordance with that subsection by the local authority, sanitary authority or the Minister for Communications, Marine and Natural Resources, as the case may be, shall, in relation to an application for a licence, be deemed to be the date of an application for a licence under this Part.

(6) Notwithstanding the provisions of this section, this Part shall not apply to an activity where an appeal to An Bord Pleanála under section 34 of the Air Pollution Act 1987 , or section 8 or 20 of the Local Government (Water Pollution) Act 1977 , as inserted by the Local Government (Water Pollution) (Amendment) Act 1990 , has been or may still be made, until the time for making the appeal has expired or the appeal has been determined or withdrawn and the licence (if any) granted, as the case may be.

Powers of High Court or Circuit Court in relation to activities in contravention of this Act.

99H.—(1) Where, on application by any person to the High Court or the Circuit Court, that Court is satisfied that an activity is being carried on in contravention of the requirements of this Act, it may by order—

(a) require the person in charge of the activity to do, refrain from or cease doing any specified act (including to refrain from or cease making any specified emission),

(b) make such other provision, including provision in relation to the payment of costs, as the Court considers appropriate.

(2) An application for an order under this section shall be by motion, and the High Court or the Circuit Court when considering the matter may make such interim or interlocutory order as it considers appropriate.

(3) (a) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the activity concerned is being carried on.

(b) The Circuit Court shall have jurisdiction to hear and determine an application under this section which it is satisfied it is appropriate for it to deal with as a court of local and limited jurisdiction and, for the purpose of the court's satisfying itself of that matter, the matters to which it shall have regard include—

(i)   the nature and extent of the environmental pollution, if any, which it is alleged is being caused by the activity concerned, and

(ii)   the estimated cost of complying with the order to which the application relates.

(c) If, in relation to an application under this section to the Circuit Court, that court becomes of the opinion, during the hearing of the application, that it is not appropriate for the Circuit Court to deal with the application, it may, if it so thinks fit, transfer the application to the High Court.

(d) Paragraph (c) is without prejudice to the jurisdiction of the Circuit Court to determine an application under this section which, at the time of the making of the application, it was satisfied it had jurisdiction to deal with.

(e) Where an application is transferred under paragraph (c) to the High Court, the High Court shall be deemed to have made any order made under subsection (2) by the court from which it is so transferred in the proceedings in relation to the application.

(4) An application for an order under this section may be made whether or not there has been a prosecution for an offence under this Act in relation to the activity concerned and shall not prejudice the initiation of a prosecution for an offence under this Act in relation to the activity concerned.

(5) Without prejudice to the powers of the High Court or the Circuit Court to enforce an order under this section, a person who fails to comply with an order under this section shall be guilty of an offence.”.

1 O.J. No. L175, 05.07.1985, p.40.