Agency duty to consider guidance EPA 1990 s. 78W
EPA 1990 s. 78W empowers the Secretary of State to issue guidance to the Agency on contaminated land powers, which the Agency must consider.
The Secretary of State may issue guidance to the appropriate Agency with respect to the exercise or performance of that Agency’s powers or duties under this Part; and in exercising or performing those powers or duties the appropriate Agency shall have regard to any such guidance so issued. The duty imposed on the appropriate Agency by subsection (1) above is without prejudice to any duty imposed by any other provision of this Part on that Agency to act in accordance with guidance issued by the Secretary of State.
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
Section 78W of the Environmental Protection Act 1990 allows the Secretary of State to issue statutory guidance to the appropriate Agency (such as the Environment Agency) regarding its contaminated land duties and powers under Part IIA.
When exercising its powers or carrying out its statutory duties, the Agency is required to "have regard to" any guidance issued under this provision. This obligation does not replace or override other provisions in Part IIA that specifically require the Agency to act strictly in accordance with ministerial guidance.
When it applies
- The Environment Agency assesses ministerial guidance when deciding how to exercise its powers regarding contaminated land.
- The Agency considers statutory policy advice from the Secretary of State when establishing procedural priorities for site regulation.
- The Agency evaluates government guidelines when determining how to perform duties under Part IIA.
What this section does not say
- Direct legal duties imposed on local authorities or private landowners to follow ministerial guidance.
- Provisions where the law explicitly requires the Agency to act strictly in accordance with guidance rather than merely have regard to it.
- Site-specific advice issued by the Agency itself to local authorities, which is covered under epa1990s.78v.
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This page reproduces the text of EPA 1990 s. 78W 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.