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

17 - Registers

17.1 Each ENFORCING AUTHORITY has a duty to maintain a REGISTER ( section 78R(1)). The register will include details of REMEDIATION NOTICES which have been served and certain other documents in relation to each area of CONTAMINATED LAND for which the authority is responsible. The REGISTER will also include information about the condition of the land in question. For a LOCAL AUTHORITY, the REGISTER must be kept at its principal office. For SEPA, the REGISTER must be kept at the appropriate regional office for the area in which the land is situated.

17.2 The particular details to be included in each REGISTER are prescribed in regulation 14 and Schedule 4 of the Contaminated Land (Scotland) Regulations 2000 (see Annex 4). Neither these Regulations, nor the primary legislation in Part IIA, state when details should be added to the REGISTER. In the Executive's view, this implies that they should be added as soon as reasonably practicable after the information they contain is generated; so, for example, the prescribed details of a REMEDIATION NOTICE should be added as soon as reasonably practicable after the service of that notice.

17.3 Before including any information on its REGISTER, the ENFORCING AUTHORITY needs to consider whether that information should be excluded on the basis that:

(a) its inclusion would be against the interests of national security (see paragraphs 17.8 to 17.9 below); or

(b) the information is commercially confidential (see paragraphs 17.10 to 17.19 below).

Copying Entries between Authorities

17.4 For most areas of CONTAMINATED LAND, the LOCAL AUTHORITY for that area will be the ENFORCING AUTHORITY. However, for particular areas of CONTAMINATED LAND this may not be the case. This applies if:

(a) the CONTAMINATED LAND has been designated a SPECIAL SITE, in which case SEPA is the ENFORCING AUTHORITY; or

(b) the land has been identified as CONTAMINATED LAND by the LOCAL AUTHORITY for an adjoining or adjacent area, as a result of SIGNIFICANT HARM or SIGNIFICANT POLLUTION OF THE WATER ENVIRONMENT which might be caused in that LOCAL AUTHORITY'S own area ( section 78X(2)).

17.5 Where this is the case, the ENFORCING AUTHORITY needs to copy all entries it makes into its own REGISTER for the land in question, to the LOCAL AUTHORITY in whose area the land is actually situated ( section 78R(4) & (5)).

17.6 The LOCAL AUTHORITY which receives these copied entries needs to include them on its own REGISTER ( section 78R(6)). This means that the REGISTER maintained by any LOCAL AUTHORITY provides a comprehensive set of information about all of the CONTAMINATED LAND identified in its area, whichever authority is the ENFORCING AUTHORITY.

Public Access to Registers

17.7 Each ENFORCING AUTHORITY is under a duty to keep its REGISTER available for free inspection by the public at all reasonable times ( section 78R(8)(a)). In addition, it will be under a duty to provide facilities for members of the public to obtain copies of REGISTER entries. It can make reasonable charges for this ( section 78R(8)(b)).

Exclusion on the Grounds of National Security

17.8 The ENFORCING AUTHORITY must not include any information on its REGISTER if, in the opinion of THE SCOTTISH MINISTERS, its inclusion would be against the interests of national security ( section 78S(1)). THE SCOTTISH MINISTERS can give directions to ENFORCING AUTHORITIES specifying information, or descriptions of information, which are to be excluded from any REGISTER or referred to THE SCOTTISH MINISTERS for their determination ( section 78S(2)). At the date of this circular, no such directions have been given.

17.9 Any person who considers that the inclusion of particular information on a REGISTER would be against the interests of national security can notify THE SCOTTISH MINISTERS and the ENFORCING AUTHORITY of this. THE SCOTTISH MINISTERS will then consider whether, in their opinion, the information should be included or excluded. The ENFORCING AUTHORITY must not include on its REGISTER any information covered by this kind of notification unless and until THE SCOTTISH MINISTERS determine that it can be included ( section 78S(4)).

Exclusion on the Grounds of Commercial Confidentiality

17.10 The ENFORCING AUTHORITY must not, without the relevant person's permission include any information on its REGISTER which:

(a) relates to the affairs of any individual or business; and

(b) is commercially confidential to that individual or the person carrying on that business ( section 78T(1)).

17.11 For these purposes, commercial interests relating to the value of the CONTAMINATED LAND, or to its the ownership or occupation, are disregarded ( section 78T(11)). This means that information cannot be excluded from the REGISTER solely on the basis that its inclusion might provide information to a prospective buyer of the land, thereby affecting the sale or the sale price.

17.12 In addition, THE SCOTTISH MINISTERS can give directions to ENFORCING AUTHORITIES requiring the inclusion of specified information or descriptions of information, notwithstanding any commercial confidentiality, where they consider that the inclusion of that information would be in the public interest ( section 78T(7)). No such directions have yet been given.

17.13 If the ENFORCING AUTHORITY considers that any information which it would normally include on its REGISTER could be commercially confidential, it must notify the person concerned in writing. The authority then needs to give that person a reasonable opportunity to make representations requesting the exclusion of the information and explaining why the information is commercially confidential ( section 78T(2)).

17.14 The ENFORCING AUTHORITY then needs to determine, taking into account any representations received, whether the information is, or is not, commercially confidential.

17.15 If the ENFORCING AUTHORITY determines that the information is commercially confidential, that information is excluded from the REGISTER. However, the authority must include on its REGISTER a statement indicating the existence of excluded information of the relevant kind ( section 78R(7)). This means, for example, that if details of a REMEDIATION NOTICE are excluded, the statement records that the particulars of such a notice have been excluded.

17.16 If the ENFORCING AUTHORITY determines that the information is not commercially confidential, it notifies the person concerned. That person then has twenty-one days in which he can appeal to THE SCOTTISH MINISTERS ( section 78T(3)). While any appeal is pending, the information is not included on the REGISTER. If THE SCOTTISH MINISTERS determine that the information is commercially confidential, then the information is excluded with a statement about the exclusion being entered on the REGISTER. If THE SCOTTISH MINISTERS determine that the information is not commercially confidential, or if the appeal is withdrawn, the ENFORCING AUTHORITY includes it on its REGISTER seven days afterwards.

17.17 If no appeal is made within twenty-one days of the date on which the ENFORCING AUTHORITY notified the person concerned of its determination, the ENFORCING AUTHORITY enters the information on its REGISTER.

17.18 Where any information is excluded from a REGISTER on the grounds of commercial confidentiality, that exclusion will generally lapse after four years with the information being treated as no longer being commercially confidential ( section 78T(8)). This means that where information has been excluded, the ENFORCING AUTHORITY will need to put arrangements in place to ensure that information is included on the REGISTER once the four year period has passed

17.19 However, the person who furnished the information can apply to the ENFORCING AUTHORITY for information to remain excluded. The authority then determines whether the information is still commercially confidential, and acts accordingly. The same arrangements apply for any appeal against this determination as apply in the case of an original determination ( section 78T(9)).