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

12 - Serving a Remediation Notice

12.1 The basis for serving a REMEDIATION NOTICE is that the ENFORCING AUTHORITY considers that there are REMEDIATION ACTIONS, identified as part of the REMEDIATION SCHEME, which:

(a) have not been, are not being and will not be carried out without the service of a REMEDIATION NOTICE; and

(b) in respect of which the authority has no power under section 78N to carry out itself and for which it is not, itself, the APPROPRIATE PERSON.

12.2 Before serving a REMEDIATION NOTICE, the ENFORCING AUTHORITY needs to decide whether it has made reasonable endeavours to consult the APPROPRIATE PERSON and the other relevant persons (described in paragraph 6.10 to 6.17 above) on the nature of the REMEDIA TION which is to be carried out ( section 78H(1)).

12.3 When the authority is satisfied that it has consulted sufficiently, and subject to the timing requirements outlined in paragraphs 12.4 and 12.5 below, the authority will be under a duty to serve a REMEDIATION NOTICE on each APPROPRIATE PERSON requiring the relevant REMEDIATION ACTION to be carried out ( section 78E(1)).

TIMING OF THE SERVICE OF A REMEDIATION NOTICE

12.4 THE ENFORCING AUTHORITY will have notified each APPROPRIATE PERSON that he appears to be such a person ( section 78B(3) & (4); see paragraphs 4.1 to 4.6 above). The date of this notification to any person determines the earliest date on which the ENFORCING AUTHORITY can serve a REMEDIATION NOTICE on that person. Except in a case of urgency (see paragraphs 5.1 to 0 above), at least three months must elapse between the date of the notification to the person concerned and the service of a REMEDIATION NOTICE on that person ( section 78H(3)(a)).

12.5 However, later dates apply if the LOCAL AUTHORITY has given notice of a decision that the land is required to be designated a SPECIAL SITE, or if SEPA has given an equivalent notice to the LOCAL AUTHORITY (see paragraphs 18.7 and 18.13 below). Once such a notice has been given, the ENFORCING AUTHORITY cannot serve a REMEDIATION NOTICE (except in cases of urgency) until three months have elapsed since:

(a) notice was given by the LOCAL AUTHORITY that the designation of the land as a SPECIAL SITE is to take effect; or

(b) notice was given by THE SCOTTISH MINISTERS that the designation of the land as a SPECIAL SITE is, or is not, to take effect ( sections 78H(3)(b) & (c); see also section 18 of this Annex).

THE REMEDIATION NOTICE

12.6 The ENFORCING AUTHORITY must include in any REMEDIATION NOTICE particular information about the CONTAMINATED LAND, the REMEDIATION, the APPROPRIATE PERSON and rights of appeal against the notice. The requirements for the contents of a REMEDIATION NOTICE are formally set out in sections 78E(1) and (3), and regulation 4 of the Contaminated Land (Scotland) Regulations 2000 (see Annex 4, paragraphs 16 to 20).

12.7 In any case where there are two or more APPROPRIATE PERSONS for any REMEDIATION ACTION, the ENFORCING AUTHORITY may serve a single REMEDIATION NOTICE on all of those persons. (Acting in this way will make the process of readjusting the APPORTIONMENT of costs after a successful appeal considerably simpler, as the APPELLATE AUTHORITY will be able to amend the single REMEDIATION NOTICE and the way it affects each of the APPROPRIATE PERSONS; if separate notices are served, this would not be possible, and new notices would have to be served.)

12.8 As well as serving the REMEDIATION NOTICE on the APPROPRIATE PERSONS, the ENFORCING AUTHORITY must send a copy:

(a) to any person who they have consulted under section 78G(3) about the granting of rights over the land or waters to the APPROPRIATE PERSON;

(b) to any person who was consulted under section 78H(1); and

(c) if the ENFORCING AUTHORITY is the LOCAL AUTHORITY, to SEPA, and if the ENFORCING AUTHORITY is SEPA, to the LOCAL AUTHORITY ( regulation 5(1)).

12.9 The ENFORCING AUTHORITY is under a duty to include prescribed details of the REMEDIATION NOTICE on its R E G I S T E R ( section 78R(1)(a) and regulation 15; see paragraphs 17.1 to 17.19 below and Annex 4, paragraph 76).