Offensive trades: end of PH Act controls – EPA 1990 s.84
Offensive trade under PH Act 1936 ceasing to be regulated under that Act when also a prescribed process requiring EPA Part I authorisation.
Where a person carries on, in the area or part of the area of any local authority— in England or Wales, a trade which— is an offensive trade within the meaning of section 107 of the Public Health Act 1936 in that area or part of that area, and constitutes a prescribed process designated for local control for the carrying on of which an authorisation is required under section 6 of this Act; or in Scotland, a business which— is mentioned in section 32(1) of the Public Health (Scotland) Act 1897 (or is an offensive business by virtue of that section) in that area or part of that area; and constitutes a prescribed process designated for local control for the carrying on of which an authorisation is required under the said section 6, subsection (2) below shall have effect in relation to that trade or business as from the date on which an authorisation is granted under section 6 of this Act or, if that person has not applied for such an authorisation within the period allowed under section 2(1) above for making applications under that section, as from the end of that period. Where this subsection applies in relation to the trade or business carried on by any person— nothing in section 107 of the Public Health Act 1936 or in section 32 of the Public Health (Scotland) Act 1897 shall apply in relation to it, and no byelaws or further byelaws made under section 108(2) of the said Act of 1936, or under subsection (2) of the said section 32 , with respect to a trade or business of that description shall apply in relation to it; but without prejudice to the continuance of, and imposition of any penalty in, any proceedings under the said section 107 or the said section 32 which were instituted before the date as from which this subsection has effect in relation to the trade or business. Subsection (2)(b) above shall apply in relation to the trade of fish frying as it applies in relation to an offensive trade. When the Secretary of State considers it expedient to do so, having regard to the operation of Part I and the preceding provisions of this Part of this Act in relation to offensive trades or businesses, he may by order repeal— sections 107 and 108 of the Public Health Act 1936; and section 32 of the Public Health (Scotland) Act 1897; and different days may be so appointed in relation to trades or businesses which constitute prescribed processes and those which do not. In this section— “ prescribed process ” has the same meaning as in Part I of this Act; and “ offensive trade ” or “ trade ” has the same meaning as in section 107 of the Public Health Act 1936.
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 ends certain controls under the Public Health Act 1936 (and its Scottish equivalent) when an offensive trade – a trade listed under section 107 of that Act – also becomes a "prescribed process" that needs an authorisation under Part I of the Environmental Protection Act 1990. Once the authorisation is granted (or, if no application is made, after the application deadline has passed), section 107 of the Public Health Act 1936 no longer applies to that trade, and no byelaws made under section 108(2) of that Act can apply to it. Any legal proceedings started before that date are not affected.
Fish frying is specifically treated as an offensive trade for the purposes of this section. The Secretary of State may by order repeal sections 107 and 108 of the Public Health Act 1936 (and section 32 of the Public Health (Scotland) Act 1897) when he considers it expedient.
When it applies
- A fish frying business that is also a prescribed process obtains an authorisation under section 6 of EPA 1990, and from that date the old Public Health Act byelaws on offensive trades no longer apply to it.
- A rendering plant that was previously regulated as an offensive trade under the Public Health Act becomes a prescribed process, and after authorisation the local authority can no longer use section 107 against it – though any ongoing nuisance proceedings continue.
- A person carrying on an offensive trade that is a prescribed process fails to apply for an authorisation within the period allowed under section 2(1), so from the end of that period the Public Health Act controls cease.
- The Secretary of State uses the power to repeal sections 107 and 108 of the Public Health Act 1936 entirely, removing the old regime for offensive trades that are not prescribed processes.
What this section does not say
- It does not define what counts as an "offensive trade" – that is found in section 107 of the Public Health Act 1936.
- It does not set out the application process or requirements for an authorisation under section 6 of EPA 1990 – those are in Part I of the Act.
- It does not apply if the trade is not a prescribed process – in that case the Public Health Act controls remain in force.
- It does not deal with statutory nuisances under Part III of EPA 1990 (sections 79 onward) – those are separate proceedings.
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This page reproduces the text of EPA 1990 s. 84 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.