First Previous (SECOND SCHEDULE Enactments in respect of which Functions may be Transferred to the Agency)

7 1992

ENVIRONMENTAL PROTECTION AGENCY ACT, 1992

THIRD SCHEDULE

Amendment of Air Pollution Act, 1987

Section 18 .

1. The Air Pollution Act, 1987 (“the Act”) shall be amended in accordance with the following paragraphs.

2. Section 7 (1) of the Act shall be amended by the substitution of the following for the definition of “pollutant”:

“‘pollutant’ means any substance specified in the First Schedule or any other substance (including a substance which gives rise to odour) or energy which, when emitted into the atmosphere either by itself or in combination with any other substance, may cause air pollution;”.

3. Section 32 of the Act shall be amended by the substitution for subsection (3) of the following subsection:

“(3) A local authority shall not grant a licence in relation to industrial plant unless they are satisfied that—

(a) the best practicable means will be used to prevent or limit any emissions from the plant,

(b) any emissions from the plant will comply with any relevant emission limit value,

(c) any emissions from the plant will not result in the contravention of any relevant air quality standard,

(d) any emissions from the plant will not cause significant air pollution,

and, where appropriate, the local authority shall attach conditions relating to the matters specified in paragraphs (a), (b), (c) and (d) to the licence.”.

4. The Act shall be amended by the insertion of the following sections after section 28:

“Remedies for unauthorised emissions.

28A. (1) (a) Where there is an emission from any premises, other than an emission under and in compliance with a licence granted under this Act or an emission in compliance with an emission limit value specified under section 51 of this Act or an emission which is in accordance with directions specifying best practicable means issued by the Minister under subsection (3) of section 5 of this Act, any person may make application to the appropriate court which may make an order requiring the occupier of the premises concerned to do one or more of the following, that is to say:

(i) to terminate the emission within such period as may be specified in the order, or

(ii) to mitigate or remedy any effects of the emission 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 emission 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 £5,000, the District Court,

(ii) in case the estimated cost aforesaid does not exceed £30,000, 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 £5,000, 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 £30,000, 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.

(2) (a) An application for an order under this section shall be brought in a summary manner and the court when considering the matter may make such interim or interlocutory order as it considers appropriate.

(b) Where an application is transferred under paragraph (c) of subsection (1), the court to which it is transferred shall be deemed to have made any order made under this subsection by the court from which it is so transferred in the proceedings in relation to the application.

(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), a local authority may, in respect of their functional area, take any steps specified in the order to mitigate or remedy the effects of the emission concerned.

(b) The amount of any expenditure incurred by a local authority in relation to steps taken by them under paragraph (a) shall be a simple contract debt owed to the authority and may be recovered by them from the person as a simple contract debt in any court of competent jurisdiction.

(5) (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 premises concerned are situated or in which the emission concerned takes place.

(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 premises concerned are situated or in which the emission concerned takes place.

(6) An application under subsection (1) may be made whether or not there has been a prosecution for an offence under this Act in relation to the emission concerned.

Civil liability for pollution.

28B. (1) Where an emission causes injury, loss or damage to a person or to the property of a person, the person may, without prejudice to any other cause of action that he may have in respect of the injury, loss or damage, recover damages in any court of competent jurisdiction in respect of such injury, loss or damage—

(a) from the occupier of the premises from which the emission originated unless the emission was caused by an act of God or an act or omission of a third party over whose conduct such occupier had no control, being an act or omission that such occupier could not reasonably have foreseen and guarded against, or

(b) if the emission was occasioned by an act or omission of any person that, in the opinion of the court, constitutes a contravention by the person of a provision of this Act, from that person.

(2) Subsection (1) does not apply to an emission under and in compliance with a licence granted under this Act or an emission in compliance with an emission limit value specified under section 51 of this Act or an emission which is in accordance with directions specifying best practicable means issued by the Minister under subsection (3) of section 5 of this Act.”.