Environmental Pollution (Guernsey) (Amendment) Law, 2015

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PROJET DE LOI

ENTITLED

The Environmental Pollution (Guernsey) (Amendment) Law, 2015

THE STATES, in pursuance of their Resolutions of the 1^st November, 2012[a], the 12^th February, 2014[b] and the 10^th December, 2014[c], have approved the following provisions which, subject to the Sanction of Her Most Excellent Majesty in Council, shall have force of law in the Islands of Guernsey, Herm and Jethou.

Amendment of the Environmental Pollution Law.

1. The Environmental Pollution (Guernsey) Law, 2004[d] is amended as follows.

2. For each reference to "the Strategic and Corporate Plan" substitute "the States Strategic Plan".

3. For each reference to "Waste Disposal Plans", "Waste Disposal Plan" and ""Waste Disposal Plan"" substitute "Waste Management Plans", "Waste Management Plan" and ""Waste Management Plan"" respectively.

4. For each reference to "public waste disposal site", "public waste disposal sites" or ""public waste disposal site"" substitute "public waste management site", "public waste management sites" and ""public waste management site"" respectively.

5. In section 9 (delegation of functions and powers) –

(a) for each reference to "instrument" substitute "authorisation", and

(b) at the end, add –

"(4) This section is without prejudice to the provisions of the Public Functions (Transfer and Performance) (Bailiwick of Guernsey) Law, 1991.".

6. In section 21(2) (representations prior to refusal, variation, revocation or suspension), for "section 62" substitute "section 63".

7. For each reference to "the Public Services Department" in sections 25(3)(j) (right of appeal) and 44(1) (anti-pollution notices), substitute "the Director".

8. In section 25(7)(b) (quashing of decision) –

(a) delete "or the Public Services Department, as the case may be,", and

(b) for "have taken" substitute "has taken".

9. In section 30 (general functions of the Waste Disposal Authority) –

(a) in subsection (1)(d), for "the disposal of waste" substitute "the recovery or disposal of waste",

(b) in subsection (2)(a)(i), for "the deposit of waste" substitute "the recovery or disposal of waste",

(c) in subsection (2)(a)(ii), for "sorting, treating and disposing of waste" substitute "storing, recovery or disposal of waste",

(d) in subsection (2)(c), at the beginning, insert "without prejudice to the generality of paragraph (a)," and

(e) at the end, add –

"(3) In this section and sections 31 to 32A –

(a) "disposal" includes an operation set out in Annex I to Directive 2008/98/EC of the European Parliament and of the Council of 19 November, 2008 on waste and repealing certain Directives, and

(b) "recovery" in relation to waste –

(i) means any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in a plant or in the wider economy, and

(ii) includes an operation set out in Annex II to Directive 2008/98/EC of the European Parliament and of the Council of 19 November, 2008 on waste and repealing certain Directives,

and, for the avoidance of doubt, "recovery" or "disposal" includes any sorting, processing or treating of waste carried out to effect such recovery or disposal.".

10. In section 31 (formerly Waste Disposal Plans) –

(a) in subsection (3) –

(i) for each reference to "disposal" substitute "recovery or disposal",

(ii) for paragraph (e) substitute –

"(e) the sites or facilities provided, managed, arranged, operated or funded by or on behalf of the Waste Disposal Authority where, subject to subsection (4), such recovery, disposal or other waste management operations are to take place ("public waste management sites"),", and

(b) for paragraph (a) of subsection (4) substitute –

"(a) does not override the terms of any Development Plan, Subject Plan or Local Planning Brief for the time being in force under the Land Planning and Development (Guernsey) Law, 2005, or avoid the need for a planning inquiry to be held where required under that Law as respects any amendment to such a Plan or Brief intended to enable the implementation of that designation, and".

11. For section 32 (formerly public waste disposal sites) substitute –

"Public waste management sites.

32. (1) Subject to the following provisions of this section, it is the duty of the Waste Disposal Authority to make such arrangements as may be necessary for the reasonable provision of facilities for the reception and recovery or disposal of waste at one or more public waste management sites in accordance with the Waste Management Plan.

(2) For the avoidance of doubt, in discharging its duty under subsection (1) the Waste Disposal Authority need not make arrangements for the provision of facilities for the reception and recovery or disposal of waste other than in respect of the public waste management sites identified in the current Waste Management Plan.

(3) In discharging its duty under subsection (1) the Waste Disposal Authority is entitled –

(a) to reserve particular sites for –

(i) particular descriptions of waste, or

(ii) use by particular categories of persons,

(b) to specify limited times at which, and other conditions subject to which, waste or waste of any particular description will be accepted at any site or any particular site, and

(c) to prescribe by regulations the charges or rates of charge and the basis on which charges must be paid as a precondition of its acceptance of waste, or of waste of any particular description,

and need not accept waste in respect of which all such requirements are not fulfilled.

(4) Regulations of the Waste Disposal Authority under subsection (3)(c) may for the avoidance of doubt and without prejudice to the generality of that subsection -

(a) prescribe charges with a view to recovering the capital, operational and administrative costs reasonably incurred by the States in providing facilities and services at all public waste management sites, and

(b) apply a discount or surcharge to a charge calculated on the basis of paragraph (a), based on the position in the waste hierarchy of operations carried on at the site, with the highest charge being in respect of sites where disposal is carried on.

(5) In this section and in section 32A "waste hierarchy" means applying the following waste hierarchy as a priority order –

(a) prevention,

(b) preparing for re-use,

(d) other recovery, including energy recovery, and

(e) disposal.

(6) In the exercise of its powers under subsections (3) and (4), and generally in its management of public waste management sites, the Waste Disposal Authority must –

(a) have regard to the current Waste Management Plan,

(b) comply with the conditions of any licence under this Law to which the operation is subject, and

Charging for waste management services.

32A. (1) The States shall by Ordinance make such provision as they think fit in relation to the assessment and levying of charges for the provision of waste management services provided, managed, arranged, operated or funded by or on behalf of the Waste Disposal Authority and matters connected with or incidental to the same.

(2) For the avoidance of doubt, an Ordinance under subsection (1) may make provision for the levying of charges based on the capital, operational and administrative costs reasonably incurred by the Waste Disposal Authority and the States in providing all waste management services.

(3) Without prejudice to the generality of subsection (1), an Ordinance under this section may make provision for the following matters in relation to the assessment and levying of charges for waste management services –

(a) the persons liable to pay and the persons excepted or exempted from liability including provision for a waiver or reduction of charges,

(b) the basis on which, and the manner in which, the charges are to be calculated, assessed, approved and levied and the prescribing of the level of charges in accordance with the same including provision for –

(i) a charge by way of the sale of a receptacle at a prescribed wholesale or retail charge,

(ii) a charge by way of a combination of such charge and an additional, fixed charge for waste management services, and

(iii) a zero charge for any charge within subparagraph (i) or (ii),

(c) the matters to be taken into account in prescribing a charge which may include the following in relation to a charge for a receptacle–

(i) the position in the waste hierarchy of the operations to which the waste, intended to be put into the receptacle, is to be subject, or

(ii) the principle that the person generating such waste should pay for its disposal or recovery,

(d) the times, and the periods in respect of which, the charge is to become due (including provision for levying on an annual, biannual or quarterly basis),

(e) the administration, payment, collection and recovery of the charges and the enforcement of liabilities to pay the same,

(f) the levying of interest and penalties in the event of late or non-payment of the charges including provision for amendment of any specified rate of interest by regulations of the Waste Disposal Authority,

(g) the making of assessments of the charges and the preparation of statements of account, and

(h) the making of agreements or other arrangements by the Waste Disposal Authority in relation to the supply, distribution and retail sale of receptacles including arrangements in relation to –

(i) the supply of receptacles by the Waste Disposal Authority to retailers and payment for the same at the prescribed wholesale charge, or

(ii) the distribution and retail sale of receptacles by retailers within the prescribed retail charge.

(4) An Ordinance under subsection (1) may make provision for the Waste Disposal Authority to amend or substitute by regulations the charges prescribed in the Ordinance; such amended or substituted charges must be calculated and assessed by the Waste Disposal Authority on the basis, and in the manner, set out in the Ordinance.

(5) Without prejudice to the generality of subsection (1), the waste management services provided by, or on behalf of, the Waste Disposal Authority include –

(a) the reception, recovery or disposal or carrying on of other waste management services at public waste management sites of, or in relation to, waste collected by the Douzaine of any Parish pursuant to section 1 and 2 of the Parochial Collection of Waste (Guernsey) Law, 2015,

(b) the transport of waste, by or on behalf of the Waste Disposal Authority, for recovery or disposal outside of Guernsey,

(d) waste prevention and minimisation programmes (however named) run by or on behalf of the Waste Disposal Authority.

(6) In this section –

"charge" includes a charge by way of a prescribed wholesale or retail charge, or range of such charges, for a receptacle,

"receptacle" means a bag or other receptacle in which an occupier is required to put out waste for collection under the Parochial Collection of Waste (Guernsey) Law, 2015 and includes a holder for such a receptacle,

"retail" means any sale except a sale for resale in the course of a trade or business and related expressions are construed accordingly,

"prescribed" means prescribed by or under an Ordinance under this section,

"waste management services" is construed in accordance with subsections (1) and (5), and

"wholesale" means any sale for resale in the course of a trade or business and includes a sale by the Waste Disposal Authority to a retailer.".

12. In section 33 (private waste disposal on land) –

(a) for the heading substitute –

"Private waste management on land.",

(b) for subsection (2) substitute –

"(2) In considering an application for a licence, or the variation of the conditions of a licence, under this Law permitting –

(a) the disposal of waste on land otherwise than at a public waste management site, or

(b) the carrying out of an operation which might divert waste from a public waste management site identified under that Part of the Waste Management Plan detailing policy in relation to strategically important Waste Disposal Authority facilities,

the Director shall comply with the requirements in subsection (2A).

(2A) The requirements referred to in subsection (2) are that the Director -

(a) shall not grant the application in contravention of subsection (1),

(b) shall take into account, in addition to the matters set out in section 15, the current Waste Management Plan, and

(i) the Waste Disposal Authority,

(ii) the Constables of the Parish concerned,

(iii) the Environment Department,

(iv) the Health and Social Services Department,

(v) the Committee, and

(vi) the Public Services Department,

provided that compliance with this subsection does not modify the effect of section 23.", and

13. In section 40(2) (extended definition of pollution as respects water resources), for "sections 41 to 45" substitute "sections 41 to 45B".

14. In section 41(3) (general protection of water resources by Ordinance)–

(a) in paragraph (e), for "the Public Services Department" substitute "the Director", and

(b) in paragraph (f), for "the Public Services Department or any other Committee" substitute "the Director or any Committee".

15. For section 42 substitute –

"Powers of the Director to take samples.

42. (1) The Director may at any reasonable time (or, in cases of emergency, at any time) subject to section 45A, on production if required of evidence of his office or authority, enter any premises for the purpose of taking from those premises samples of any water, effluent or other matter.

(2) When a sample is taken from any premises a duplicate of the sample shall, if the owner or occupier of the premises so requests, be left with him.".

16. In section 44 (anti-pollution notices as respects the catchment area) –

(a) for the heading substitute –

"Anti-pollution notices.",

(b) in subsection (1), for each reference to "pollution in the catchment area" substitute "water pollution", and

17. For section 45 (additional powers of Public Services Department officers etc. in the catchment area) substitute –

"Additional powers of the Director.

45. The Director may at any reasonable time (or, in cases of emergency, at any time) subject to section 45A, on production if required of evidence of his office or authority, enter any premises for the purpose of–

(a) making any inspection, examination and inquiry necessary to ascertain whether an offence under section 65 or 66 is being or has been committed, or

(b) doing anything which the Director is authorised to do under section 62 or section 63 as applied by section 44(2).

Powers of entry.

45A (1) The powers of entry under sections 42(1) and 45 shall not be exercisable -

(a) in the case of private premises (other than in a case of emergency), unless the Director gives to the owner or occupier of the premises concerned at least 24 hours' notice of his intention to enter the premises, or

(b) in the case of premises used as a dwelling except under, and in accordance with–

(i) the authority of a warrant issued by the Bailiff under, and

(ii) the provisions of,

section 45B.

(2) The powers of entry in section 42(1) and 45 do not authorise the Director to enter any premises by force.

(3) In this section "private premises" means all premises other than premises -

(a) which are wholly owned and occupied by the States,

(b) which are used as a dwelling, or

(c) which are, or have been (and the condition of which is reasonably believed to be such as to give rise to a significant risk of water pollution), used for the purposes of a prescribed operation.

(4) For the avoidance of doubt, in this section and in section 45B, "premises used as a dwelling" includes any part of premises used as a dwelling.

Warrant to enter premises.

45B. (1) If the Bailiff is satisfied by information on oath supplied by the Director that there are reasonable grounds for entering any premises for a purpose for which the Director has a power to enter premises under section 42 or 45, he may grant a warrant to the Director.

(2) A warrant granted under subsection (1) shall authorise the Director and any person authorised by the Director including, where he has reasonable cause to apprehend any serious obstruction in the carrying out of his functions, a police officer, at any time within 28 days of the date of the grant –

(a) to enter the premises, and

(b) to exercise in respect of the premises (and any substances or articles or other things found in or on the dwelling), all such powers as he, and any person authorised by him, may exercise under section 42 or section 45.

(3) The Bailiff shall not issue a warrant under subsection (1) unless he is satisfied that one or more of the following four conditions is met.

(4) The first condition is that the premises are used as a dwelling and the occupier has been informed of the decision to apply for a warrant.

(5) The second condition is that the premises are not used as a dwelling and that each of the following applies to the occupier of the premises -

(a) he has been informed of the decision to seek entry to the premises and of the reasons for that decision,

(b) he has failed to allow entry to the premises on being requested to do so by the Director, and

(6) The third condition is that -

(a) the premises are unoccupied or the occupier is absent, and

(b) notice of intention to apply for a warrant has been left in a conspicuous place on the premises.

(7) The fourth condition is that it is inappropriate to inform the occupier of the decision to apply for a warrant because -

(a) it would defeat the object of entering the premises, or

(b) entry is required as a matter of urgency.

(8) A person executing a warrant issued under this section may use such reasonable force as may be necessary.

(9) A warrant issued under this section shall be executed at a reasonable hour unless it appears to the person executing it that there are grounds for suspecting that any material evidence of water pollution would not be found if it were so executed.

(10) If the person who occupies premises in respect of which a warrant is issued under this section is present when the warrant is executed, he shall be shown the warrant and supplied with a copy of it; and if that person is not present a copy of the warrant shall be left in a prominent place on the premises.".

18. In section 67(7) (obstruction, misleading information etc.) –

(a) at the end of paragraph (a) insert "or",

(b) at the end of paragraph (b) for "and," substitute ".", and

19. Immediately before section 71 add –

"Exclusion of liability.

70A. (1) The Director is not -

(a) liable in damages, or

(b) personally liable in any civil proceedings,

in respect of anything done, or omitted to be done, in the discharge, or purported discharge, of his functions under this Law, unless the thing was done, or omitted to be done, in bad faith.

(2) Subsection (1) only applies to anything done, or omitted to be done, after the commencement of the provision under the Law under which the relevant function is conferred.

(3) Subsection (1) does not operate to prevent an award of damages in respect of an act or omission on the ground that it was unlawful as a result of section 6(1) of the Human Rights (Bailiwick of Guernsey) Law, 2000.".

20. For section 71 (service of notices and other documents) substitute –

"Service of notices and other documents.

71. (1) Any notice or other document required or authorised to be served under this Law may be served –

(a) on an individual, by addressing it to him, and either delivering it to him personally or leaving it at or sending it by post or transmitting it to his usual or last known place of abode,

(b) on a body corporate, by addressing it to that body, and leaving it at or sending it by post or transmitting it to–

(i) its registered office (wherever situated), or

(ii) if its registered office is not in Guernsey, its principal or last known principal place of business in Guernsey,

(c) on an unincorporated body, by addressing it to the secretary or clerk to that body, or in the case of a partnership to any partner, and leaving it at or sending it by post or transmitting it to the principal or last known principal office or place of business of that body.

(2) If a notice or document is required or authorised under this Law to be served on the owner or on the occupier of, or on a person having an interest in, premises, it is deemed to have been duly served if it is –

(a) addressed to that person either by name or by referring to the owner of, the occupier of, or the person having the relevant interest in, the premises concerned, and

(b) either served in accordance with subsection (1) or affixed conspicuously to, or to some object on, the premises concerned.

(3) A notice served on any one of two or more joint owners of premises is deemed to have been served on all of those joint owners, except where this Law specifically requires that the notice be served on each of them.

(4) A document required or authorised by or under this Law to be served on the Director, or on any committee of the States, may be served by addressing it to the Director, or to that committee as appropriate, and leaving it at or sending it by post or transmitting it to the principal offices of the Director or committee as appropriate.

(5) In subsections (1) to (4) –

(a) the expression "by post" means by Special Delivery post, recorded delivery service or ordinary letter post, and

(b) the expression "transmitting" means transmitting by electronic communication, facsimile transmission or other similar means which produce or enable the production of a document containing the text of the communication; in which event the document shall be regarded as served when it is received.

(6) If service of a document cannot, after reasonable enquiry, be effected in accordance with this section, the document may be served –

(a) by being published by the Director in such manner and for such period as he thinks fit, or

(b) by being published in La Gazette Officielle on two occasions falling in successive weeks,

and a document served under this subsection is sufficiently served if addressed to the person for whom it is intended.

(7) Despite the provisions of subsections (1) to (6) or any other enactment or rule of law in relation to the service of documents, no document to be given to or served on the Director under or for the purposes of the Law shall be deemed to have been given or served until it is received.

(8) A document which is served by sending it through the post is deemed to have been served, unless it is returned to the sender -

(a) in the case of a document sent to an address in the United Kingdom, the Channel Islands or the Isle of Man, on the third day after the day of posting, or

(b) in the case of a document sent elsewhere, on the seventh day after the day of posting,

excluding in each case any day which is not a working day.

(9) Service of a document sent by post shall be proved by showing the date of posting, the address thereon and the fact of prepayment.

(10) In this section "document" does not include a summons.

(11) This section is subject to any different or alternative provision made by Ordinance in respect of the service of compliance notices; but both this section and any such Ordinance are without prejudice to the validity of any other method of service by which a notice or other document is in fact received by its addressee.".

21. In section 73 (interpretation) –

(a) in subsection (5) –

(i) insert the following definitions in the appropriate places -

""the Bailiff" includes the Deputy Bailiff and any person appointed as Juge-Délégué, Lieutenant Bailiff or as a Judge of the Royal Court,",

""committee of the States" includes any department, council or committee of the States (however named),",

""police officer" means a member of the salaried police force of the Island of Guernsey and, within the limits of his jurisdiction, a member of the special constabulary of the Island of Guernsey,",

""working day" is any day other than a Saturday, a Sunday and a non-business day within the meaning of section 1(1) of the Bills of Exchange (Guernsey) Law, 1958",".

(ii) delete the definition of "fax",

(iii) for the definition of "States" substitute -

""the States" means the States of Guernsey,",

(iv) for the definition of "Strategic and Corporate Plan" substitute –

""States Strategic Plan" means -

(a) the States Strategic Plan 2013 to 2017 as set out in Billet d'État No. VI of 2013, or

(b) any policy or plan, other than the States Strategic Plan, (however named) adopted by the States and currently in force which replaced the States Strategic Plan,

in each case as from time to time amended or replaced,",

(v) in the definition of "Waste Disposal Authority" after "means the" insert "person or",

(b) for subsection (8) substitute –

"(8) Any reference in this Law to an enactment, instrument or Community provision (within the meaning of section 3(1) of the European Communities (Implementation) (Bailiwick of Guernsey) Law, 1994) is a reference thereto as from time to time amended, replaced or re-enacted (in either case, with or without modification), extended or applied.".

Interpretation.

22. (1) In this Law -

"the 2004 Law" means the Environmental Pollution (Guernsey) Law, 2004,

"enactment" means any Law, Ordinance or subordinate legislation,

"subordinate legislation" means any regulation, rule, order, rule of court, resolution, scheme, byelaw or other instrument made under any enactment and having legislative effect.

(2) Any reference in this Law to an enactment is a reference thereto as from time to time amended, re-enacted (with or without modification), extended or applied.

Transitional provisions and savings.

23. (1) The current Waste Disposal Plan in force immediately before this Law comes into force shall –

(a) continue in effect, subject to this section, as it had effect immediately before that commencement,

(b) be deemed to be the current Waste Management Plan, and

(c) be construed, unless the contrary intention appears, as though references in it to a public waste disposal site, public waste disposal and other waste management sites provided, managed, arranged, operated or funded by or on behalf of the Waste Disposal Authority or to public waste management and disposal sites (in each case however worded) are to public waste management sites,

and for the avoidance of doubt, no amendment made by this Law to the 2004 Law affects the validity of that Plan.

(2) A reference, however expressed, in any enactment or other document to –

(a) the current Waste Disposal Plan shall be construed, unless the contrary intention appears, as a reference to the current Waste Management Plan, and

(b) a public waste disposal site shall be construed, unless the contrary intention appears, as a reference to a public waste management site.

Amendment to the Competition (Guernsey) Ordinance, 2012.

24. (1) The Competition (Guernsey) Ordinance, 2012[e] is amended as follows.

(2) After section 56(2)(e) (non-application of Ordinance to States and statutory bodies; and other exemptions) add the following paragraphs –

"(ea) any matter in respect of which provision may be made by Ordinance under section 32A of the Environmental Pollution (Guernsey) Law, 2004,

(eb) any conduct or agreement to the extent to which it is engaged in or entered into to ensure or facilitate compliance with the requirement under the Parochial Collection of Waste (Guernsey) Law, 2015 to put out waste for collection in the receptacles specified by notice under that Law; and in this paragraph "receptacle" and "waste" have the meanings in that Law,".

Consequential amendments.

25. (1) In regulation 1(b)(ii) of the Environmental Pollution (Public Register) Regulations, 2010[f], for "section 33(2)(c)" substitute "section 33(2A)(c)".

(2) For each reference to "public waste disposal site" in section 20 of the Animal Welfare (Guernsey) Ordinance, 2012[g] substitute "public waste management site".

Citation.

26. This Law may be cited as the Environmental Pollution (Guernsey) (Amendment) Law, 2015.

Commencement.

27. (1) This Law shall come into force on the day appointed by Order of the States of Guernsey Public Services Department; and any such order may -

(a) appoint different dates for different provisions of this Law and for different purposes, and

(b) contain saving and transitional provisions.

[a]	Article VI of Billet d'État No. XXI of 2012.
[b]	Billet d'État No. II of 2014.
[c]	Article X of Billet d'État No. XXVI of 2014.
[d]	Ordres en Conseil Vol. XLIV (1), p. 274 as amended by Order in Council No. XIII of 2010, Recueil d'Ordonnances Tome XXIX, p. 406, Tome XXXI, p. 618, Tome XXXI, p. 660, Tome XXXII, p. 113, Ordinance No. XVIII of 2010 and No. V of 2011. See also Ordres en Conseil Vol. XXII, p. 122 and Recueil d'Ordonnances Tome XXXI, p. 540.
[e]	No. XXXI of 2012; as amended by Ordinance No. IV of 2014.
[f]	G.S.I No. 52 of 2010.
[g]	Ordinance No. 3 of 2012 as amended by G.S.I. No. 32 of 2014.