Environment (Miscellaneous Provisions) Act 2011

PART 1 Preliminary and General

1.. Short title, collective citations, construction and commencement.

1.— (1) This Act may be cited as the Environment (Miscellaneous Provisions) Act 2011.

(2) The Air Pollution Act 1987 and Part 3 may be cited together as the Air Pollution Acts 1987 and 2011 and shall be read together as one.

(3) The Waste Management Acts 1996 to 2003 and Part 4 may be cited together as the Waste Management Acts 1996 to 2011 and shall be read together as one.

(4) The Planning and Development Acts 2000 to 2010 and Part 5 may be cited together as the Planning and Development Acts 2000 to 2011 and shall be read together as one.

(5) This Act shall come into operation on such day or days as the Minister for the Environment, Community and Local Government may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2.. Definitions.

2.— In this Act—

“Act of 1987” means the Air Pollution Act 1987;

“Act of 1996” means the Waste Management Act 1996.

PART 2 Costs of Certain Proceedings to be Borne by Each Party in Certain Circumstances

3.. Costs of proceedings to be borne by each party in certain circumstances.

3.— (1) Notwithstanding anything contained in any other enactment or in—

(a) Order 99 of the Rules of the Superior Courts (S.I. No. 15 of 1986),

(b) Order 66 of the Circuit Court Rules (S.I. No. 510 of 2001), or

(c) Order 51 of the District Court Rules (S.I. No. 93 of 1997),

and subject to subsections (2), (3) and (4), in proceedings to which this section applies, each party (including any notice party) shall bear its own costs.

(2) The costs of the proceedings, or a portion of such costs, as are appropriate, may be awarded to the applicant, or as the case may be, the plaintiff, to the extent that he or she succeeds in obtaining relief and any of those costs shall be borne by the respondent, or as the case may be, defendant or any notice party, to the extent that the acts or omissions of the respondent, or as the case may be, defendant or any notice party, contributed to the applicant, or as the case may be, plaintiff obtaining relief.

(3) A court may award costs against a party in proceedings to which this section applies if the court considers it appropriate to do so—

(a) where the court considers that a claim or counter-claim by the party is frivolous or vexatious,

(b) by reason of the manner in which the party has conducted the proceedings, or

(c) where the party is in contempt of the court.

(4) Subsection (1) does not affect the court’s entitlement to award costs in favour of a party in a matter of exceptional public importance and where in the special circumstances of the case it is in the interests of justice to do so.

(5) In this section a reference to “court” shall be construed as, in relation to particular proceedings to which this section applies, a reference to the District Court, the Circuit Court, the High Court or the Supreme Court, as may be appropriate.

4.. Civil proceedings relating to certain licences, etc.

4.— (1) Section 3 applies to civil proceedings, other than proceedings referred to in subsection (3), instituted by a person—

(a) for the purpose of ensuring compliance with, or the enforcement of, a statutory requirement or condition or other requirement F1[specified in or attached to a licence, registration, permit], permission, lease F2[, notice] or consent specified in subsection (4), or

(b) in respect of the contravention of, or the failure to comply with F1[such licence, registration, permit], permission, lease F2[, notice] or consent,

and where the failure to ensure such compliance with, or enforcement of, such statutory requirement, condition or other requirement referred to in paragraph (a), or such contravention or failure to comply referred to in paragraph (b), has caused, is causing, or is likely to cause, damage to the environment.

(2) Without prejudice to the generality of subsection (1), damage to the environment includes damage to all or any of the following:

(a) air and the atmosphere;

(b) water, including coastal and marine areas;

(c) soil;

(d) land;

(e) landscapes and natural sites;

(f) biological diversity, including any component of such diversity, and genetically modified organisms;

(g) health and safety of persons and conditions of human life;

(h) cultural sites and built environment;

(i) the interaction between all or any of the matters specified in paragraphs (a)to (h).

(3) Section 3 shall not apply—

(a) to proceedings, or any part of proceedings, referred to in subsection (1)for which damages, arising from damage to persons or property, are sought, or

(b) to proceedings instituted by a statutory body or a Minister of the Government.

(4) For the purposes of subsection (1), this section applies to—

(a) a licence, or a revised licence, granted under section 83 of the Environmental Protection Agency Act 1992,

(b) a licence granted pursuant to section 32 of the Act of 1987,

(c) a licence granted under section 4 or 16 of the Local Government (Water Pollution) Act 1977,

(d) a licence granted under section 63, or a water services licence granted under section 81, of the Water Services Act 2007,

(e) a waste collection permit granted pursuant to section 34, or a waste licence granted pursuant to section 40, of the Act of 1996,

(f) a licence granted pursuant to section 23(6), 26 or 29 of the Wildlife Act 1976,

(g) a permit granted pursuant to section 5 of the Dumping at Sea Act 1996,

F3[(h) a licence granted undersection 7of the Forestry Act 2014.]

(i) F1[a licence or registration granted pursuant to regulations made undersection 30of theRadiological Protection Act 1991],

(j) a lease made under section 2, or a licence granted under section 3 of the Foreshore Act 1933,

(k) a prospecting licence granted under section 8, a State acquired minerals licence granted under section 22 or an ancillary rights licence granted under section 40, of the Minerals Development Act 1940,

(l) an exploration licence granted under section 8, a petroleum prospecting licence granted under section 9, a reserved area licence granted under section 19, or a working facilities permit granted under section 26, of the Petroleum and Other Minerals Development Act 1960,

(m) a consent pursuant to section 40 of the Gas Act 1976,

(n) a permission or approval granted pursuant to the F4[Planning and Development Act 2000,]

F2[(o) a consent to a plan or project for which a screening for appropriate assessment is required under regulation 42 of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011), and

(p) a consent or notice under regulation 43 of those regulations.]

(5) In this section—

“damage”, in relation to the environment, includes any adverse effect on any matter specified in paragraphs (a) to (i) of subsection (2);

“statutory body” means any of the following:

(a) a body established by or under statute;

(b) a county council within the meaning of the Local Government Act 2001;

(c) a city council within the meaning of the Local Government Act 2001.

(6) In this section F1[a reference to a licence, registration, revised licence,] permit, permission, approval, lease or consent F1[is a reference to such licence, registration, permit, lease or consent and any conditions or other requirements specified in or attached to it] and to any renewal or revision of such licence, permit, permission, approval, lease or consent.

5.. Proceedings relating to Information Regulations.

5.— (1) Section 3 applies to civil proceedings, other than proceedings referred to in subsection (2), instituted by a person relating to a request referred to in Regulation 6 of the Information Regulations.

(2) Section 3 shall not apply to proceedings instituted by the Commissioner for Environmental Information or a public authority pursuant to the Information Regulations.

(3) In this section—

“Information Regulations” means the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007);

“public authority” has the meaning assigned to it by the Information Regulations.

6.. Additional proceedings to which section 3 applies.

6.—Section 3 applies to—

(a) proceedings in the High Court by way of judicial review or of seeking leave to apply for judicial review, of proceedings referred to in section 4 or 5,

(b) an appeal (including an appeal by way of case stated) from the District Court, Circuit Court or High Court in any proceedings referred to in section 4 or 5 or paragraph (a), and

(c) proceedings for interim or interlocutory relief in relation to any proceedings referred to in section 4 or 5 or paragraph (a).

7.. Application to court for determination that section 3 applies to proceedings.

7.— (1) A party to proceedings to which section 3 applies may at any time before, or during the course of, the proceedings apply to the court for a determination that section 3 applies to those proceedings.

(2) Where an application is made under subsection (1), the court may make a determination that section 3 applies to those proceedings.

(3) Without prejudice to subsection (1), the parties to proceedings referred to in subsection (1), may, at any time, agree that section 3 applies to those proceedings.

(4) Before proceedings referred to in section 3 are instituted, the persons who would be the parties to those proceedings if those proceedings were instituted, may, before the institution of those proceedings and without prejudice to subsection (1), agree that section 3 applies to those proceedings.

(5) An application under subsection (1) shall be by motion on notice to the parties concerned.

8.. Judicial notice to be taken of Convention.

8.— Judicial notice shall be taken of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark on 25 June 1998.

PART 3 Amendment of Act of 1987

9.. Amendment of section 12 of Act of 1987.

9.— Section 12(1) of the Act of 1987 is amended—

(a) in paragraph (a)—

(i) by substituting “a class A fine” for “a fine not exceeding £1,000”,

(ii) by substituting “a class E fine” for “a fine not exceeding £100”, and

(iii) by substituting “equals €5,000” for “equals £1,000”,

and

(b) in paragraph (b) by substituting—

(i) “€500,000” for “£10,000”, and

(ii) “€5,000” for “£1,000”.

10.. Fixed payment notice.

10.— The Act of 1987 is amended by inserting the following. section after section 12:

“12A.— (1) Where an authorised person has reasonable grounds for believing that a person has committed a relevant offence and is liable to summary prosecution in respect thereof, the authorised person may give to the person a notice (in this Act referred to as a ‘fixed payment notice’) in writing and in the prescribed form stating that—

(a) the person is alleged to have committed that offence,

(b) the person may, during the period of 21 days beginning on the date of the notice, make to the local authority concerned at the address specified in the notice a payment of the amount specified in subsection (4) in respect of that offence, accompanied by the notice,

(c) the person is not obliged to make the payment specified in the notice, and

(d) a prosecution of the person to whom the notice is given in respect of the relevant offence concerned will not be instituted during the period of 21 days beginning on the date of the notice and, if the payment specified in the notice is made during that period, no prosecution in respect of that offence will be instituted.

(2) Where a fixed payment notice is given—

(a) the person to whom it applies may, during the period of 21 days beginning on the date of the notice, make to the local authority concerned at the address specified in the notice the payment specified in the notice, accompanied by the notice,

(b) the local authority concerned shall receive the payment and shall, upon receipt of the payment, issue a receipt for it and any payment so received shall not be recoverable by the person who made it and the local authority shall retain the money for disposal in accordance with subsection (5), and

(c) a prosecution in respect of the alleged offence shall not be instituted in the period specified in the notice, and if the payment so specified is made during that period, no prosecution in respect of the alleged offence shall be instituted.

(3) In summary proceedings for a relevant offence it shall be a defence for the defendant to prove that he or she has made a payment in accordance with this section, pursuant to a fixed payment notice issued in respect of that offence.

(4) The amount to be specified in a fixed payment notice in respect of a relevant offence is—

(a) €1,000, where the relevant offence consists of a contravention of article 3(1) or regulation 3A of the Fuel Regulations,

(b) €500, where the relevant offence consists of a contravention of article 3(2), regulation 4A(1), 4B(1), 4C(1), 4C(2), article 4 or 6 of the Fuel Regulations, or

(c) €250, where the relevant offence consists of a contravention of regulation 4A(2) or article 7 of the Fuel Regulations.

(5) Moneys received by a local authority pursuant to the giving of a fixed payment notice shall be lodged to the credit of the local fund maintained by the local authority concerned pursuant to, and in accordance with, section 97 (amended by the Local Government (Business Improvement Districts) Act 2006) of the Local Government Act 2001 and expended in accordance with that section.

(6) In this section—

‘Fuel Regulations’ means the Air Pollution Act 1987 (Marketing, Sale and Distribution of Fuels) Regulations 1998 (S.I. No. 118 of 1998) (amended by the Air Pollution Act 1987 (Marketing, Sale and Distribution of Fuels)(Amendment) Regulations 2011 (S.I. No. 270 of 2011));

‘relevant offence’ means an offence under section 11 consisting of a contravention of article 3(1), 3(2), regulation 3A, article 4, regulation 4A(1), 4A(2), 4B(1), 4C(1), 4C(2), article 6 or 7 of the Fuel Regulations.”.

11.. Amendment of section 14 of Act of 1987.

11.— Section 14 of the Act of 1987 is amended—

(a) by inserting the following subsection after subsection (5):

“(5A) Where an authorised person has reasonable grounds for apprehending any serious obstruction in the performance of his or her functions or otherwise considers it necessary, he or she may be accompanied by a member of the Garda Síochána when performing any functions conferred on him or her under this Act or any regulations made under it.”,

and

(b) in subsection (6) by inserting “under subsection (6A)” after “for a warrant”,

(c) by inserting the following subsection after subsection (6):

“(6A) Without prejudice to the powers conferred on an authorised person by or under any other provision of this section, if a judge of the District Court is satisfied by information on oath of an authorised person that there are reasonable grounds for believing that there is, or such entry is likely to disclose, evidence of a contravention of this Act, or regulations made under it, the judge may issue a warrant authorising an authorised person, accompanied by such other authorised persons or by a member or members of the Garda Síochána as may be necessary, at any time or times, within one month from the date of issue of the warrant, on production of the warrant if requested, to enter the place, if necessary by the use of reasonable force, and perform the functions conferred on an authorised person under this Act or any regulations made under it.”.

PART 4 Amendment of Act of 1996

12.. Amendment of section 72 of Act of 1996.

12.— Section 72 of the Act of 1996 is amended—

(a) by substituting the following subsections for subsection (3):

“(3) The amount of the levy shall be specified in the regulations under subsection (2) but shall not exceed an amount of 70 cent for each plastic bag supplied to a customer.

(3A) The Minister may, subject to subsections (3) and (3B), amend the amount of the levy specified in regulations under subsection (2) for the purposes of promoting—

(a) the prevention of the generation of waste, and

(b) the reduction of the use of plastic bags,

once and once only in each financial year beginning with the financial year following the financial year in which the Environment (Miscellaneous Provisions) Act 2011 is passed.

(3B) The amount to which the amount of the levy standing specified in regulations under subsection (2) may be amended shall, subject to subsection (3C), be obtained by multiplying the amount of the levy standing specified for the time being in regulations made under subsection (2) by the figure specified in subsection (3D) and if—

(a) the amount so obtained is not a whole number of cent, and

(b) the Minister considers it appropriate to do so and specifies in the regulations that the amount has so been rounded,

rounding (up or down as he or she thinks fit) the amount to the nearest whole number of cent.

(3C) The Minister may, where he or she considers it appropriate for the purposes referred to in subsection (3A), add, to the amount obtained in accordance with subsection (3B), a figure which is not greater than 10 per cent of the amount of the levy standing specified in regulations under subsection (2) and if—

(a) the amount so obtained is not a whole number of cent, and

(b) the Minister considers it appropriate to do so, and specifies in the regulations that the amount has been so rounded,

rounding (up or down as he or she thinks fit) the amount to the nearest whole number of cent.