Part 4: Air Quality and Environmental Recall

Section 72: Local air quality management framework

  • This section enacts Schedule 11, which amends Part 4 of the Environment Act 1995. Part 4 creates the Local Air Quality Management Framework. The amendments require the Secretary of State to review the National Air Quality Strategy, which sets out policies for the assessment or management of the quality of air, at least every five years; and to report annually to Parliament on progress to deliver air quality objectives and standards (set out in the Strategy) in relation to England, and the steps the Secretary of State has taken in that year to support the meeting of those objectives and standards.
  • Amendments also strengthen the requirements for local authorities under the Framework. When an Air Quality Management Area is declared by local authorities because they have assessed local air and determined that it exceeds, or is likely to exceed, air quality objectives and standards (as set by the Secretary of State in the National Air Quality Strategy and enacted in secondary legislation), local authorities are required to prepare actions plans that must set out how the local authority will exercise its functions to ensure that air quality standards are achieved and maintained. All tiers of local government, and neighbouring local authorities where relevant, will be required to co-operate in the development of those action plans. The Secretary of State has power to designate, following consultation, relevant public authorities as air quality partners who would also be required to co-operate with the development of action plans, and to take proportionate action to improve air quality where necessary. These amendments ensure responsibility for tackling air pollution is shared across relevant parties.

Section 73: Smoke control areas: amendments of the Clean Air Act 1993

  • This section enacts Schedule 12, which amends the Clean Air Act 1993. The amendments give local authorities the power to impose financial penalties for the emission of smoke in smoke control areas (SCAs) in England. This means that the emission of smoke from a chimney of a building or a chimney (not being a chimney of a building) that serves the furnace of any fixed boiler or industrial plant in an SCA in England has changed from being a criminal offence to instead being subject to a civil penalty notice (a fine). The change removes the current statutory defences that are making enforcement by local authorities very challenging, and reduces the burden and cost associated with enforcing SCAs. Additionally, the amendments remove the exemption in the Environmental Protection Act 1990 so that smoke emitted from a private dwelling in a Smoke Control Area can be enforced by local authorities in England as a statutory
  • The amendments also remove the limit on the fine for the offence of selling controlled solid fuels for delivery (leaving it to the discretion of the Magistrate’s Court), and create a new duty on retailers to notify customers of the law regarding the acquisition of controlled solid fuels in England. This is intended to help raise consumer awareness and improve compliance.
  • They also enable a local authority to extend the scope of an SCA in England to cover moored vessels, subject to local consultation. This means that if a local authority amends its smoke control order to include vessels, smoke emissions from the chimney of such vessels could be liable to a financial penalty.
  • Schedule 12 also amends, for Wales, the procedure for declaring a fuel to be authorised or fireplace to be exempt for the purposes of Part 3 of the Clean Air Act 1993, by enabling Welsh Ministers to publish a list of these fuels and fireplaces and to update this list as needed.

Section 74: Environmental recall of motor vehicles etc.

  • Subsection (1) provides for the Secretary of State to make regulations making provision for the recall of relevant products that do not meet relevant environmental standards.
  • Subsections (2) and (3) clarify that the specification or description of a “relevant product” will be set out in secondary legislation, but set constraints on the types of product that may be specified or described.
  • Subsections (4), (5) and (6) provide definitions for “relevant environmental standard”, “enactment” and “environmental impact”.
  • Subsection (7) provides that regulations made under subsection (1) will be subject to affirmative
  • Subsection (8) provides that subsequent sections 75 to 77 will make further provision for regulations made under subsection (1).

Section 75: Compulsory recall notices

  • Subsection (1) provides that regulations made under section 74(1) can confer a power on the Secretary of State to issue a “compulsory recall notice”.
  • Subsection (2) provides a definition for “compulsory recall notice”.
  • Subsection (3) provides that the Secretary of State must have reasonable grounds for believing that a relevant product does not meet a relevant environmental standard prior to issuing a

“compulsory recall notice”.

  • Subsection (4) specifies that where a relevant product forms part of another product, a notice may require the return of the entire product.
  • Subsections (5) and (6) provide that a notice, or a supplementary notice, may impose supplementary requirements on a recipient.
  • Subsection (7) provides a non-exhaustive list of supplementary requirements that may be imposed pursuant to subsections (5) and (6), including requirements to publicise the recall, to achieve a minimum recall rate, to pay compensation, or to prevent any relevant products being sold while subject to a notice.
  • Subsection (8) provides a definition for “specified”.
  • Subsection (9) provides that the Secretary of State may in the regulations provide for an appeal mechanism or for a means of withdrawing a notice or supplementary notice.

Section 76: Further provision about regulations under section 74

Schedule 11: Local air quality management framework

1548 The Schedule makes amendments to the cited sections of the Environment Act 1995.

1549 Paragraph 2 amends section 80 (national air quality strategy) of the Environment Act 1995. Sub- paragraph (2) omits subsection (3); sub-paragraph (3) inserts new subsections (4A). New subsection (4A) requires that the National Air Quality Strategy be reviewed, and, following that review, amended if that is considered necessary. New subsection (4A)(a) and (b) sets out the minimum review periods, requiring a review initially within 12 months of the schedule coming into force, and then subsequent reviews to happen at least once every five years after that.

1550 Paragraph 3 inserts new section 80A into the Environment Act 1995.

 

New section 80A Duty to report on air quality in England

1551 New section 80A requires the Secretary of State to lay a statement annually before Parliament which sets out an assessment of progress made towards meeting air quality objectives and standards in England, as well as the steps the Secretary of State has taken in support of meeting those standards and objectives. These are the standards and objectives for local air quality that the Secretary of State must include in the National Air Quality Strategy and enact in secondary legislation, which are then the levels that local authorities must assess against under the Local Air Quality Management Framework.

1552 Paragraph 4 inserts new section 81A into the Environment Act 1995.

 

New section 81A: Functions of relevant public authorities

1553 New section 81A applies a legislative requirement to certain relevant public authorities to co- operate with local authority air quality action planning, once the relevant public authority has been designated under subsection (3) below by the Secretary of State.

1554 Subsection (1) applies the duty to have regard to the National Air Quality Strategy when carrying out functions and services which might affect air quality to additional bodies who may be relevant to meeting air quality standards and objectives.

1555 Subsection (2) defines a “relevant public authority” as a body or person prescribed by the Secretary of State in regulations.

1556 Subsection (3) gives Secretary of State the power to designate a relevant public authority in England if it is determined that the person carries out functions of a public nature that are relevant to air quality in local authority areas.

1557 Subsection (4) ensures that the Secretary of State consults with both the person who is proposed to be designated as a relevant public authority and anyone else considered appropriate, ahead of making regulations that designate the relevant public body or bodies.

1558 Subsection (5) provide that the consultation requirement in inserted section 81A(4) of the Environment Act 1995 may be met by a consultation before this paragraph comes into force.

 

 

 

 

1559 Subsection (6) clarifies that references to England include the territorial sea adjacent to England, but not the territorial sea adjacent to Wales or Scotland.

1560 Paragraph 5 amends section 82 (local authority reviews) of the Environment Act 1995. Sub- paragraph (2) provides drafting to allow for the insertion of further subsections into that Act. Sub-paragraph (3) inserts new subsections (4), (5) and (6).

1561 New subsection (4) of section 82 replicates the former duty on local authorities to identify where air quality standards or objectives are not likely to be achieved within the “relevant period” (a period to be prescribed by regulations).

1562 New subsection (5) of section 82 provides that local authorities in England must also identify which sources of emissions they believe are responsible for failure to achieve air quality standards or objectives; identify neighbouring authorities who may be responsible for emissions; and identify other relevant public authorities or the Environment Agency who may be responsible for emissions.

1563 New subsection (6) of section 82 defines a source of pollution as relevant if it is: within the local authority; within a neighbouring local authority in England; or within an area where a relevant public authority has functions of a public nature and the local authority considers these functions as relevant to the source of the emissions.

1564 Paragraph 6 inserts new section 83A into the Environment Act 1995.

 

New section 83A Duties of English local authorities in relation to designated areas

1565 Subsection (1) sets out the application of this section.

1566 Subsection (2) applies a duty on local authorities to prepare an action plan to ensure air quality standards and objectives are achieved in the Air Quality Management Area it has designated in accordance with section 83. This tightens the requirement to ensure that action plans should secure the required standards and objectives.

1567 Subsection (3) sets out that an action plan’s purpose is to set out how the local authority will

secure air quality standards and objectives in the air quality management area.

1568 Subsection (4) sets out that the action plan must also maintain air quality standards and objectives in the Air Quality Management Area, once achieved.

1569 Subsection (5) provides that action plans must set out measures the local authority will take to secure and maintain air quality standards and objectives within the Air Quality Management Area, and requires a date by which these measures must be carried out to be set out in the plan.

1570 Subsection (6) provides that local authorities may revise the action plan, and must revise the action plan if new or different measures are required. This will be applicable if the existing plan is not securing compliance, or if there are new circumstances which need to be taken into account.

1571 Subsection (7) sets out that the following two subsections apply where a district council preparing a plan is in a two-tier authority.

1572 Subsection (8) provides that, in the case of disagreement between a county and district council on the contents of the plan, either the county council or the district council preparing the plan can refer the matter to the Secretary of State.

 

1573 Subsection (9) gives Secretary of State the power to confirm or reject the proposed action plan and the actions to be taken, where there is disagreement between the district and county council. This would apply where the Secretary of State considers the plan to be inadequate and not likely to secure compliance with air quality objectives.

1574 Subsection (10) requires that, if an action plan has been referred to the Secretary of State under

subsection (8), the district council must abide by the Secretary of State’s decision.

1575 Paragraph 7 amends section 84 of the Environment Act 1995 to clarify that this section now applies only to Scottish and Welsh local authorities.

1576 Paragraph 8 inserts new sections 85A and 85B into the Environment Act 1995. These new sections define the new duties of air quality partners. These could be neighbouring authorities, relevant public authorities or the Environment Agency, where relevant to a local pollution exceedance or likely future exceedance.

 

New section 85A Duty of air quality partners to co-operate

1577 Subsection (1) defines an “air quality partner” as a body responsible for emissions contributing to exceedance of local air quality objectives.

1578 Subsection (2) requires an air quality partner to assist a local authority upon request in connection with meeting air quality standards and objectives in the context of action planning where there is an exceedance. Such requests may include provision of information needed to accurately assess a pollution source’s contribution to a local exceedance.

1579 Subsection (3) clarifies that an air quality partner may refuse a request for assistance it deems to be unreasonable. It is for the air quality partner to determine whether a request is reasonable – for example, a request may be considered unreasonable on grounds of disproportionate cost, feasibility, relevance, or incompatibility with their wider legal obligations.

 

New section 85B Role of air quality partners in relation to action plans

1580 Subsection (1) places a duty on local authorities in England to notify all of their identified air quality partners if they intend to prepare an action plan.

1581 Subsection (2) places a duty on air quality partners to propose measures for inclusion in the plan they will take to contribute to achievement or maintenance of air quality standards. It is for the air quality partner to propose measures they deem reasonable taking into account their wider legal responsibilities, disproportionate cost and feasibility.

1582 Subsection (3) provides that an air quality partner should specify a date by when they will carry out the measures they have proposed and, as far as possible, meet those commitments.

1583 Subsection (4) requires action plans to include the proposals and dates provided by air quality partners.

1584 Subsection (5) provides for the Secretary of State to direct air quality partners to make further proposals for action by a date specified by the Secretary of State where existing proposals are considered insufficient. This is a last resort measure, and is limited to directing that an air quality partner propose further actions; it does not give the Secretary of State the power to determine the measures the air quality partner will take. This power of direction would not be utilised unilaterally by the Secretary of State where a relevant public body falls under the governance of another government department – agreement with the relevant government department would be sought. If agreement was reached that ministerial direction was necessary, the lead department could legitimately opt to use existing governance structures instead.

 

 

 

 

1585 Subsection (6) sets out that directions given under subsection (5) may specify the extent to which further proposals are designed to augment or replace existing actions proposed by air quality partners. So a direction could require the partner to go further in respect of a particular action it intends to take, such as extending its scope, or it could ask the partner to come up with new measures.

1586 Subsection (7) requires air quality partners to comply with directions as above. 1587 Paragraph 9 amends section 86 of the Environment Act 1995.

1588 Paragraph 9(2) omits subsection (1) relating to the role of district and county councils, which is now covered in new section 83A.

1589 Paragraph 9(3) sets out that county councils may make recommendations to district councils in respect of meeting air quality objectives.

1590 Paragraph 9(4) inserts new subsection (2A) into section 86, providing that district councils in areas of England where there is a county council must inform county councils if they intend to prepare an action plan.

1591 Paragraph 9(5) substitutes subsections (3) to (5) of section 86. New subsection (3) provides that if, as above, a county council has been informed of a district council’s intention to prepare an action plan, the county council should propose measures that they will take to help secure the achievement and maintenance of air quality standards and objectives in the local authority’s area. New subsection (4) sets out proposals should have a date specified for the carrying out of the measures and, as far as possible, those dates should be met. New subsection (5) sets out district councils should incorporate county council proposals and dates in their action plans.

1592 Paragraph 9(6) applies the definition of a district council to England. 1593 Paragraph 9(7) makes consequential amendments.

1594 Paragraph 10 substitutes section 86A in the Environment Act 1995 with new sections 86A and 86B.

 

New section 86A Role of the Mayor of London in relation to action plans

1595 Subsection (1) provides that local authorities in London must inform the Mayor of London if they intend to prepare an action plan.

1596 Subsection (2) has the effect that if, as above, the Mayor of London has been informed of a local authority’s intention to prepare an action plan, the Mayor must propose measures that the Mayor will take to help contribute to the achievement and maintenance of air quality standards and objectives. This replicates the duty that now applies to county councils in areas outside of London.

1597 Subsection (3) sets out that proposals should have a date specified for carrying out of proposed measures and, as far as possible, those dates should be met.

1598 Subsection (4) requires local authorities to incorporate the Mayor of London’s proposals and

dates in their action plans.

 

New section 86B Role of combined authorities in relation to action plans

1599 Subsection (1) requires that a local authority in a combined authority area must notify the combined authority of its intention to produce a plan.

1600 Subsection (2) requires that if, as above, the combined authority has been informed of a local authority’s intention to prepare an action plan, they should propose measures that they will take to help contribute to the achievement and maintenance of air quality standards.

1601 Subsection (3) requires that proposals should have a date specified for carrying out of proposed measures and that, as far as possible, those dates should be met.

1602 Subsection (4) requires that local authorities should incorporate combined authority proposals and dates in their action plans.

1603 Subsection (5) defines “combined authority”.

1604 Paragraph 11 amends section 87 (regulations) of the Environment Act 1995. These amendments broaden the range of bodies the Secretary of State can confer powers on, impose duties on, prescribe measures to be adopted by, require provision of relevant information or enable cost recovery in the realm of measures to improve air quality, to include relevant county councils, relevant public authorities and the Environment Agency.

1605 Paragraph 12 amends section 88 of the Environment Act 1995. These amendments widen the number of bodies the Secretary of State may issue guidance to relating to local air quality, and to which they must have regard, to include relevant public authorities and the Environment Agency.

1606 Paragraph 13 amends section 91 (interpretation) of the Environment Act 1995, providing additional definitions.

1607 Paragraph 14 makes amendments to Schedule 11 (air quality: supplementary provisions) to the Environment Act 1995, simplifying wording.

 

Schedule 12: Smoke control in England and Wales

Part 1: Principal amendments to the Clean Air Act 1993: England

1608 Paragraphs 1 to 8 make amendments to the Clean Air Act 1993.

1609 Paragraph 2 inserts new section 19A, which introduces new Schedule 1A.

1610 Paragraph 3 inserts new Schedule 1A after Schedule 1. Schedule 1A makes provisions for imposing financial penalties for emissions of smoke from a chimney of a building, a chimney (not being a chimney of a building) which serves the furnace of any fixed boiler or industrial plant and, if applicable, a chimney of a vessel in smoke control areas in England. The amendments to this Act enable a local authority to extend the scope of a smoke control area to cover moored vessels, (as set out in paragraph 7 below), subject to local consultation. They would need to amend their smoke control order to include vessels and then once it comes into operation smoke emissions from the chimney of such vessels could be liable to a financial penalty.

 

New Schedule 1A Penalty for emission of smoke in smoke control area in England

1611 Paragraph 1 of new Schedule 1A defines “relevant chimney” and “person liable” (in relation to a relevant chimney).

1612 Paragraph 2 of new Schedule 1A defines “notice of intent”, setting out when a notice of intent applies and what it must do. Where a local authority is satisfied that smoke has been emitted from a relevant chimney, they can give a notice to the liable person. The notice must include the information specified in sub-paragraph (3).

1613 Paragraph 3 of new Schedule 1A provides the minimum and maximum levels of penalty that can be given in respect of a financial penalty issued under the Schedule. Sub-paragraphs (3) and

(4) allow the Secretary of State to amend these amounts under regulations, subject to the affirmative resolution procedure. This means that draft regulations must be laid before and approved by a resolution of both Houses of Parliament.

1614 Paragraph 4 of new Schedule 1A gives the recipient of the notice of intent a period of 28 days from the day after the notice of intent was given to object in writing on a ground specified in sub-paragraph (2) and provide evidence to support the objection. For example, they could object on the grounds that there was no emission of smoke on the occasion specified or that they were not the person liable on the occasion specified in the notice of intent. Sub-paragraph (3) stipulates that if the objection is on the grounds of the person not being liable, the name and address of the liable person must be included if known. Sub-paragraph (4) allows the Secretary of State to amend the grounds of objection under regulations, subject to consultation with anyone who may have an interest in the proposed regulations (sub-paragraph (5)) as well as the affirmative resolution procedure (sub-paragraph (6)). This means that draft regulations must be laid before and approved by a resolution of both Houses of Parliament.

1615 Paragraph 5 of new Schedule 1A gives the local authority the power to impose a financial penalty, following the issuing of a notice of intent, and specifies the period within which they must do so. Sub-paragraph (2) stipulates that a local authority must notify a person of their decision not to impose a financial penalty, if applicable. For example, if the local authority receives an objection following the issuing of a notice of intent and is satisfied that the penalty should not apply, they must inform the person of their decision.

1616 Paragraph 6 of new Schedule 1A provides for the application of this paragraph where a local authority decides to impose a financial penalty. It sets out how a local authority can use a final notice to impose a financial penalty and defines a “final notice”. It also sets out what a final notice must specify (sub-paragraph (3)) and sets out the period within which the financial penalty must be paid (sub-paragraph (4)).

1617 Paragraph 7 of new Schedule 1A gives local authorities the power to withdraw a notice of intent or final notice, or reduce the amount specified in a final notice, and explains how to use said power.

1618 Paragraph 8 of new Schedule 1A gives the recipient of a financial penalty a period within which they can appeal to the First-tier Tribunal. It also sets out the grounds of appeal to the First-tier Tribunal a person may take. Sub-paragraph (3) stipulates that until the appeal has been determined or withdrawn, the final notice is suspended (that is, the local authority cannot pursue any debt until such time). Sub-paragraph (4) gives the First-tier Tribunal the power to respond to the appeal.

1619 Paragraph 9 of new Schedule 1A states that a financial penalty is recoverable as a civil debt due to the relevant local authority.

1620 Paragraph 10 of new Schedule 1A allows a local authority to delegate any of their functions under this Schedule. It requires that delegation must be made by giving notice to the delegate.

1621 Paragraph 11 of new Schedule 1A requires that a notice under this Schedule must be in writing, and instructs how a notice may be given to a person.

1622 Paragraph 12 of new Schedule 1A applies to a vessel moored in a smoke control area in England and is subject to the operation of new Schedule 1A. It sets out that when a local authority has included vessels within the scope of its smoke control area, these provisions apply in respect of emissions of smoke from those vessels. If the notice of intent cannot be given to the occupier of the vessel, it may instead be given to the registered owner of the vessel, in which case one of the grounds for objecting listed in paragraph 4(2) – that they were not the person liable on the occasion specified in the notice of intent – does not apply. A person who receives a notice of

intent relating to a vessel may object under paragraph 4 on the further ground that the smoke emitted on the occasion specified was solely due to engine-powered propulsion or to provide electric power to the vessel.

1623 Paragraph 4 inserts new sections 19B to 19D after new section 19A. These sections set out the offences relating to the acquisition and sale of controlled solid fuel in England, the exemption relating to particular areas in England, and the interpretation of new sections 19A to 19C.

 

New section 19B Acquisition and sale of controlled solid fuel in England

1624 Most of the provisions set out in new sections 19B and 19C mirror those in existing sections 22 and 23 of the Clean Air Act, but have been amended to provide a distinction between how Part 3 of the Act applies in England and in Wales. For example, subsection (1) of new section 19B provides for an offence of acquiring controlled solid fuel for use in a building, fireplace, fixed boiler or industrial plant to which a smoke control order applies. This offence already exists in existing section 23 of the Act.

1625 New subsection (2) clarifies that the acquisition of controlled solid fuel for use in the propulsion of a vessel or to provide electric power to the vessel will not form an offence.

1626 New subsection (3) clarifies that acquiring controlled fuel for use in an approved fireplace will not form an offence, mirroring the existing defence under section 23. For example, wood is a controlled solid fuel but it is not an offence to acquire wood for use in a smoke control area if it will used in a fireplace of a type specified in a list published by the Secretary of State and used in compliance with any conditions specified in the list.

1627 New subsection (4) sets out a new offence where a retailer must notify potential buyers that is an offence to acquire controlled solid fuel for certain purposes (for example, if it will be burned in a fireplace not specified in the Secretary of State’s list of approved fireplaces, such as an open fireplace, in a smoke control area in England). This also applies to online retailers. Reasonable steps to notify potential purchasers could include, for example, putting an informative sign next to the fuels and at the cash register, or including a notification during online checkout.

1628 New subsection (5) provides for an offence of selling controlled fuels for delivery to a building, or premises with a fixed boiler or industrial plant to which a smoke control order in England applies. This offence already exists in the current Act.

1629 New subsection (6) provides defences for the offence under subsection (5), mirroring the existing defences in the current Act.

1630 New subsection (7) provides that a person guilty of the offences under subsection (1) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

1631 New subsection (8) provides that a person guilty of the offence under subsections (4) and (5) is liable on summary conviction to a fine. The level of fine will be determined by the Court.

 

New section 19C Exemptions relating to particular areas in England

1632 The provisions set out in new section 19C (exemptions relating to particular areas in England) allow the Secretary of State to order the suspension of financial penalties for emission of smoke and/or offences relating to the acquisition and sale of controlled solid fuel in England.

Subsection (2) sets out that the Secretary of State must consult the relevant local authority prior to using their power under subsection (1), and subsection (3) sets out what the local authority must do following the making of such an order.

New Section 19D Interpretation: “approved fireplace” and “controlled solid fuel”

1633 New section 19D applies to new sections 19A to 19C. Subsection (1) defines “approved fireplace”, and subsection (2) sets out the requirements a fireplace must meet in order for the Secretary of State to include it on the list of approved fireplaces. Subsections (3) and (4) define “controlled solid fuel” and “approved fuel”.

1634 Paragraph 5 inserts new section 26A after section 26.

 

New section 26A Duty of local authority to reimburse for adaptations of vessels in  England

1635 This section sets out the criteria by which local authorities in England are required to reimburse owners or occupiers of vessels that are subject to a smoke control order, for works carried out to avoid incurring a financial penalty under new Schedule 1A to the Clean Air Act 1993.

1636 Subsection (1) sets out the criteria an owner or occupier of a vessel must meet in order to be eligible for reimbursement under these provisions. For example, the vessel must have the right to moor at a single mooring place for the qualifying period, the owner or occupier must complete the adaptations prior to the coming into operation of the order, and the owner or occupier must not have access to mains gas or electricity.

1637 Subsection (2) provides further conditions for when reimbursement will be required, and requires local authorities to reimburse the owner or occupier of a vessel 70% of the expenditure incurred in carrying out the adaptations if the adaptations are completed prior to the coming into operation of the order, the local authority approves the expenditure, and the adaptations are completed to the satisfaction of the local authority.

1638 Subsection (3) stipulates that reimbursement must be paid in equal monthly instalments for a period of six months.

1639 Subsection (4) removes the duty on local authorities to reimburse the owner or occupier of a vessel, should the owner or occupier cease to have the right to moor at the single mooring place or the vessel be absent from the smoke control area for one or more periods totalling three months.

1640 Paragraph 6 inserts new section 28A after section 28.

 

New section 28A Guidance for local authorities in England

1641 New section 28A requires local authorities in England to have regard to any guidance published by the Secretary of State related to their functions under Part 3 of the Act.

1642 Paragraph 7 inserts new subsections (2A) to (2C) after section 44(2).

1643 New subsection (2A) allows local authorities in England to include moored vessels in scope of their smoke control areas, which would be subject to the operation of new Schedule 1A. The amendments in this Act enable a local authority to extend the scope of a smoke control area to cover moored vessels, subject to local consultation. They would need to amend their smoke control order to include vessels, and then, once it comes into operation, smoke emissions from the chimney of such vessels could be liable to a financial penalty. New subsection (2B) extends references to a building in Part 3 and in section 54 of the Act to vessels, except for references in section 24 and 25 to dwellings. New subsection (2C) defines “moored vessels”.

1644 Paragraph 8 clarifies that rights of entry under section 56 only apply in relation to a private dwelling where adaptations are required under section 24(1), or to a vessel where there is a duty to make reimbursements to the occupier or owner for works carried out under section 26A(3).

Part 2: Principal amendments to the Clean Air Act 1993: Wales

1645 Paragraphs 9 to 11 make amendments to the Clean Air Act 1993.

1646 Paragraph 10 amends section 20 (prohibition on emission of smoke in smoke control area), which only applies in Wales following the minor and consequential amendments made in Part

  1. Sub-paragraph (2) amends, for Wales, the procedure for declaring a fuel to be authorised for the purposes of Part 3 of the Act. It enables Welsh Ministers to authorise fuels by publishing a list of authorised fuels and to update this list as needed. Sub-paragraph (3) omits subsection (6), which gives meaning to “authorised fuel”.

1647 Paragraph 11 amends section 21 (power by order to exempt certain fireplaces) as it applies to Wales. Welsh Ministers currently have the power to exempt any class of fireplace by order upon such conditions as may be specified in the order, if they are satisfied that such fireplaces can be used for burning fuel other than authorised fuels without producing any smoke or a substantial quantity of smoke. The amendment enables Welsh Ministers to exempt such fireplaces by publishing a list of exempted fireplaces and any relevant conditions and to update this list as needed.

1648 The amendments made by these paragraphs will enable Welsh Ministers to authorise fuels and exempt fireplaces as and when they are manufactured and tested, rather than waiting for common commencement dates as is currently the case for Wales.

Part 3: Minor and consequential amendments

Minor and consequential amendments to the Clean Air Act 1993

1649 Paragraph 13 amends section 18 (declaration of smoke control area by local authority) to achieve a distinction between how Part 3 applies in England and in Wales, and extends the section to include new Schedule 1A.

1650 Paragraph 14 amends section 20 (prohibition on emission of smoke in smoke control area) to provide that the section applies only in Wales.

1651 Paragraph 15 amends section 21 (power to exempt certain fireplaces) to achieve a distinction between how Part 3 applies in England and in Wales.

1652 Paragraph 16 amends section 22 (exemptions relating to particular areas) to achieve a distinction between how Part 3 applies in England and in Wales.

1653 Paragraph 17 amends section 23 (acquisition and sale of unauthorised fuel in a smoke control area) to achieve a distinction between how Part 3 applies in England and in Wales.

1654 Paragraph 18 amends section 24 (power to require adaptations of fireplaces) to achieve a distinction between how Part 3 applies in England and in Wales, and extends the section to include new Schedule 1A.

1655 Paragraph 19 amends section 26 (power to make grants for fireplaces in churches etc) to achieve a distinction between how Part 3 applies in England and in Wales and, extends references made to premises to include vessels.

1656 Paragraph 20 amends section 27 (references to adaptations) to achieve a distinction between how Part 3 applies in England and in Wales, and extends references made to a dwelling to include vessels.

 

 

1657 Paragraph 21 amends section 28 (expenditure on execution of works) to extend references made to a dwelling to include vessels.

1658 Paragraph 22 inserts the definition of “smoke control order in England” into section 29

(interpretation).

1659 Paragraph 23 amends section 63 (regulations and orders) to clarify that the delegated powers set out in paragraph 3(3) and 4(5) of new Schedule 1A are not subject to annulment in pursuance of a resolution of either House of Parliament.

1660 Paragraph 24 amends Schedule 1 to achieve a distinction between how Part 3 applies in England and in Wales, and extends paragraph 5 of that Schedule 1 to new Schedule 1A. Sub- paragraph (3) inserts new paragraph 6A into Schedule 1, which provides a duty on local authorities in England to inform the Secretary of State of any new smoke control orders and the date on which they will come into operation.

Minor amendments to other legislation

1661 Paragraph 25 inserts “in Wales” into subsection (3)(i) of section 79 of the Environmental Protection Act 1990 (statutory nuisances). This achieves a distinction between how the section applies in England and in Wales. It means that private dwellings in smoke control areas in England are no longer exempt from nuisance legislation, but retains the exemption for Wales. This means that smoke from private dwellings in smoke control areas in England can constitute a statutory nuisance, provided that it is prejudicial to health or a nuisance, as is currently the case for private dwellings outside of smoke control areas in England.

Part 4: Smoke Control Areas in England: Transitional Provision

1662 This transitional provision ensures that, where a local authority in England has made a smoke control order, any limitations that currently apply by virtue of that order will continue to apply in relation to new Schedule 1A, when those provisions are commenced. This is because if a smoke control order that applies in England makes any such limitations or exemptions from section 20 of the Clean Air Act 1993 these would be of no effect once Schedule 1A comes into force, as section 20 will then only apply in Wales.

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