Referral of special site decisions: EPA 1990 s. 78D
If the appropriate Agency objects within 21 days to a local authority's special site decision, the authority must refer it to the Secretary of State.
In any case where— a local authority gives notice of a decision to the appropriate Agency pursuant to subsection (1)(b) or (5)(b) of section 78C above, but before the expiration of the period of twenty-one days beginning with the day on which that notice is so given, that Agency gives the local authority notice that it disagrees with the decision, together with a statement of its reasons for disagreeing, the authority shall refer the decision to the Secretary of State and shall send to him a statement of its reasons for reaching the decision. Where the appropriate Agency gives notice to a local authority under paragraph (b) of subsection (1) above, it shall also send to the Secretary of State a copy of the notice and of the statement given under that paragraph. Where a local authority refers a decision to the Secretary of State under subsection (1) above, it shall give notice of that fact to the relevant persons. Where a decision of a local authority is referred to the Secretary of State under subsection (1) above, he— may confirm or reverse the decision with respect to the whole or any part of the land to which it relates; and shall give notice of his decision on the referral— to the relevant persons; and to the local authority. Where a decision of a local authority is referred to the Secretary of State under subsection (1) above, the decision shall not take effect until the day after that on which the Secretary of State gives the notice required by subsection (4) above to the persons there mentioned and shall then take effect as confirmed or reversed by him. Where a decision which takes effect in accordance with subsection (5) above is to the effect that at least some land is land which is required to be designated as a special site, the notice given under subsection (4)(b) above shall have effect, as from the time when the decision takes effect, as the designation of that land as such a site. In this section “ the relevant persons ” has the same meaning as in section 78C above.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
This section sets out what happens when a local authority decides whether land should be designated a special site under section 78C and the appropriate Agency (the Environment Agency in England, Natural Resources Wales in Wales) disagrees. The Agency has 21 days from receiving the authority's notice to give its own notice of disagreement with reasons. If it does, the authority must send the decision to the Secretary of State along with its own reasons. The Secretary of State then confirms or reverses the decision for the whole or any part of the land. The decision does not take effect until the day after the Secretary of State gives notice of the outcome to the relevant persons (the same people as in section 78C) and to the local authority. If the Secretary confirms that land is a special site, the notice itself acts as the designation.
When it applies
- A local authority decides that a site is not a special site, but the Environment Agency disagrees within 21 days and gives reasons.
- A local authority decides that a site is a special site and the Agency disagrees, forcing referral to the Secretary of State.
- The Secretary of State confirms a local authority's decision that land is a special site, and the notice takes effect as the official designation.
- The Secretary of State reverses a local authority's decision that land is a special site, so it is never designated.
- A landowner receives notice that the local authority's decision has been referred to the Secretary of State and awaits the final outcome.
What this section does not say
- How a local authority initially identifies contaminated land or designates a special site (that is in sections 78B and 78C).
- Appeals against remediation notices or enforcement action (covered by sections 78L and 78M).
- Compensation for rights of entry or restrictions on serving remediation notices (sections 78G and 78H).
- The definition of 'relevant persons' itself (that is given in section 78C, referenced here).
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This page reproduces the text of EPA 1990 s. 78D in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.