Local Government (Water Pollution) (Amendment) Act, 1990

Powers of courts, local authorities and regional boards in relation to the mitigation and remedying of effects of pollution.

7.—The following section shall be substituted for section 10 of the Principal Act:

“10.—(1) (a) Where, on application by any person to the appropriate court, whether or not the person has an interest in the waters concerned, that court is satisfied that another person—

(i) is causing or permitting, or has caused or permitted, polluting matter to enter waters and the entry is or was not one to which section 3 (5) applies and is or was not under and in accordance with a licence under section 171 of the Act of 1959, or

(ii) is discharging or causing or permitting to be discharged, or has discharged or caused or permitted to be discharged, trade effluent or sewage effluent to waters and the discharge is or was not one to which subsection (2) of section 4 applies and is or was not under and in accordance with a licence under that section or the said section 171,

that court may make an order directing that other person to do one or more of the following, that is to say:

(I) to terminate the entry or discharge within such period as may be specified in the order, or

(II) to mitigate or remedy any effects of the entry or discharge concerned in such manner and within such period as may be specified in the order, or

(III) to pay to the applicant or such other person as may be specified in the order a specified amount to defray all or part of any costs incurred by the applicant or that other person in investigating, mitigating or remedying the effects of the entry or discharge concerned.

(b) In this subsection ‘appropriate court’, in relation to an application under paragraph (a) means—

(i) in case the estimated cost of complying with the order to which the application relates does not exceed £2,500, the District Court,

(ii) in case the estimated cost aforesaid does not exceed £15,000, the Circuit Court, and

(iii) in any case, the High Court.

(c) (i) If, in relation to an application under this section to the District Court, that court becomes of opinion during the hearing of the application that the estimated cost aforesaid will exceed £2,500, it may, if it so thinks fit, transfer the application to the Circuit Court or the High Court, whichever it considers appropriate having regard to the estimated cost aforesaid.

(ii) If, in relation to an application under this section to the Circuit Court, that court becomes of opinion during the hearing of the application that the estimated cost aforesaid will exceed £15,000, it may, if it so thinks fit, by order transfer the application to the High Court.

(iii) This paragraph is without prejudice to the jurisdiction of a court (being either the District Court or the Circuit Court) to determine an application under this section in relation to which it was, at the time of the making of the application, the appropriate court.

(d) An application under this section shall be brought in a summary manner.

(e) A court may, if it so thinks fit, make such interim or interlocutory order as it considers appropriate in proceedings under this section and, where an application is transferred under paragraph (c), the court to which it is transferred shall be deemed to have made any order made under this paragraph by the court from which it is so transferred in the proceedings in relation to the application.

(2) Without prejudice to any power of a court to enforce orders made by it, a person who does not comply with an order under subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £1,000 or imprisonment for a term not exceeding 6 months or both.

(3) (a) An order shall not be made by a court under this section unless the person named in the order has been given an opportunity of being heard by the court in the proceedings relating to the application for the order.

(b) The court concerned may make such order as to the costs of the parties to or persons heard by the court in proceedings relating to an application for an order under this section as it considers appropriate.

(4) (a) Where a person does not comply with an order under subsection (1), the local authority, or the regional board, in whose functional area the waters concerned are situated, may take any steps specified in the order to mitigate or remedy the effects of the entry or discharge concerned.

(b) The amount of any expenditure incurred by a local authority or regional board in relation to steps taken by it under paragraph (a) shall be a simple contract debt owed by the person in respect of whom the order under subsection (1) was made to the authority or board, as the case may be, and may be recovered by it from the person as a simple contract debt in any court of competent jurisdiction.

(5) A local authority may serve on a person who is—

(a) causing or permitting polluting matter to enter waters and the entry is not one to which section 3 (5) applies and is not under and in accordance with a licence under section 171 of the Act of 1959, or

(b) causing or permitting trade effluent or sewage effluent to be discharged to waters and the discharge is not one to which section 4 (2) applies, and is not under and in accordance with a licence under that section or under the said section 171,

a notice in writing requiring the cesser of the entry or discharge concerned within such period as may be specified in the notice and requiring the mitigation or remedying of any effects of such entry or discharge in such manner and within such period as may be specified in the notice.

(6) Where a person does not comply with a notice under subsection (5), the local authority concerned may take any steps it considers necessary to terminate the entry or discharge concerned and to mitigate or remedy any effects thereof and the amount of any expenditure incurred by it in relation to any such steps shall be a simple contract debt owed by the person to it and may be recovered by it from the person as a simple contract debt in any court of competent jurisdiction.

(7) (a) An application under subsection (1) to the District Court shall be made to the justice of the District Court for the District Court district in which the waters concerned or the land or other premises from which the entry or discharge concerned takes place, is situated.

(b) An application under subsection (1) to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the waters concerned or the land or other premises from which the entry or discharge concerned takes place, is situated.

(8) Without prejudice to the generality of subsections (1) and (5), an order under subsection (1) or a notice under subsection (5) may require—

(a) the replacement of fish stocks,

(b) the restoration of spawning grounds,

(c) the taking of measures to prevent the continuance of the entry or discharge to which the order or notice relates,

(d) the removal of polluting matter from waters,

(e) the treatment of affected waters so as to mitigate or remedy the effects of the entry or discharge concerned,

(f) the making of alternative arrangements for the supply of water for domestic, commercial, industrial, fishery (including fish-farming), agricultural or recreational purposes or the payment of a specified amount to the sanitary authority or other person concerned to defray all or part of the costs of such arrangements,

(g) the making good of any damage to plant or equipment or to any water abstraction or treatment works and any consequential losses incurred by any person by reason of the entry of polluting matter into waters.

(9) An application may be made under subsection (1) and a notice may be served under subsection (5) notwithstanding that a prosecution under section 3 or 4 has not been brought in respect of the relevant entry or discharge referred to in subsection (1) or (5), as may be appropriate.”.