Air Pollution Act 1987
F35[Remedies for unauthorised emissions.
28A. — (1) (a) Where there is an emission from any premises, other than an emission under and in compliance with a licence granted under this Act or an emission in compliance with an emission limit value specified under section 51 of this Act or an emission which is in accordance with directions specifying best practicable means issued by the Minister under subsection (3) of section 5 of this Act, any person may make application to the appropriate court which may make an order requiring the occupier of the premises concerned to do one or more of the following, that is to say:
(i) to terminate the emission within such period as may be specified in the order, or
(ii) to mitigate or remedy any effects of the emission concerned in such manner and within such period as may be specified in the order, or
(iii) to pay to the applicant or such other person as may be specified in the order a specified amount to defray all or part of any costs incurred by the applicant or that other person in investigating, mitigating or remedying the effects of the emission concerned.
(b) In this subsection "appropriate court", in relation to an application under paragraph (a) means—
(i) in case the estimated cost of complying with the order to which the application relates does not exceed F36[€15,000], the District Court,
(ii) in case the estimated cost aforesaid does not exceed F37[€75,000], the Circuit Court, and
(iii) in any case, the High Court.
(c) (i) If, in relation to an application under this section to the District Court, that court becomes of opinion during the hearing of the application that the estimated cost aforesaid will exceed F36[€15,000], it may, if it so thinks fit, transfer the application to the Circuit Court or the High Court, whichever it considers appropriate having regard to the estimated cost aforesaid.
(ii) If, in relation to an application under this section to the Circuit Court, that court becomes of opinion during the hearing of the application that the estimated cost aforesaid will exceed F37[€75,000], it may, if it so thinks fit, by order transfer the application to the High Court.
(iii) This paragraph is without prejudice to the jurisdiction of a court (being either the District Court or the Circuit Court) to determine an application under this section in relation to which it was, at the time of the making of the application, the appropriate court.
(2) (a) An application for an order under this section shall be brought in a summary manner and the court when considering the matter may make such interim or interlocutory order as it considers appropriate..
(b) Where an application is transferred under paragraph (c) of subsection (1), the court to which it is transferred shall be deemed to have made any order made under this subsection by the court from which it is so transferred in the proceedings in relation to the application.
(3) (a) An order shall not be made by a court under this section unless the person named in the order has been given an opportunity of being heard by the court in the proceedings relating to the application for the order.
(b) The court concerned may make such order as to the costs of the parties to or persons heard by the court in proceedings relating to an application for an order under this section as it considers appropriate.
(4) (a) Where a person does not comply with an order under subsection (1), a local authority may, in respect of their functional area, take any steps specified in the order to mitigate or remedy the effects of the emission concerned.
(b) The amount of any expenditure incurred by a local authority in relation to steps taken by them under paragraph (a) shall be a simple contract debt owed to the authority and may be recovered by them from the person as a simple contract debt in any court of competent jurisdiction.
(5) (a) An application under subsection (1) to the District Court shall be made to the Justice of the District Court for the District Court district in which the premises concerned are situated or in which the emission concerned takes place.
(b) An application under subsection (1) to the Circuit Court shall be made to the Judge of the Circuit Court for the circuit in which the premises concerned are situated or in which the emission concerned takes place.
(6) An application under subsection (1) may be made whether or not there has been a prosecution for an offence under this Act in relation to the emission concerned.]
Annotations
Amendments:
F35
Inserted (23.04.1992) by Environmental Protection Agency Act 1992 (7/1992), s. 18(2) and sch. 3 para. 4, commenced on enactment.
F36
Substituted (3.02.2014) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 15 and sch. part 2 item 7, S.I. No. 566 of 2013.
F37
Substituted (3.02.2014) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 14 and sch. part 1 item 4, S.I. No. 566 of 2013.
Modifications (not altering text):
C32
Application of section modified (27.05.1996) by Environmental Protection Agency (Extension of Powers) Order 1996 (S.I. No. 126 of 1996), art. 10, in effect as per art. 2.
10. The provisions of the Act of 1987 which are specified in the Table hereunder as modified by this Order shall apply (subject to any qualification included in the Table) to the Agency in lieu of the local authority for the purposes of the prevention or limitation, or the remedying of the effects, as the case may be, of air pollution from an activity, other than an activity to which section 99 (2) of the Act applies, in respect of which a licence or revised licence under Part IV of the Act is in force.
Table
Air Pollution Act 1987
|
Section |
Provision or Qualification |
|
7 |
Subsection (1) for the purpose of the appointment of "authorised persons". |
|
11 |
The whole section. |
|
12 |
The whole section. |
|
13 |
Subsections (1), (3) and (4). |
|
14 |
The whole section. |
|
15 |
The whole section. |
|
16 |
Paragraphs (a) and (b) of subsection (1) and subsections (2), (3) and (4). |
|
24 |
The whole section. |
|
26 |
The whole section. |
|
28 |
Subsections (4) and (6). |
|
54 |
Subsections (1), (2), (3) and (4). |
11. For the purposes of article 10, a function conferred on a local authority or anything required to be done in relation to a local authority under any of the provisions of the Act of 1987 specified in that article, shall, as the case may be, be exercised by, or done in relation to, the Agency in lieu of the local authority.
12. (1) For the purposes of articles 10 and 11, for references to "local authority" in any of the provisions therein referred to (other than section 13 (1) (b) of the Act of 1987) there shall be substituted the following—
"the Environmental Protection Agency, in the case of an activity in respect of which a licence or revised licence under Part IV of the Environmental Protection Agency Act, 1992, is in force, and, in any other case, a local authority",
and cognate words shall be construed accordingly.
(2) For the purposes of articles 10 and 11, the provisions of the Act of 1987 which are specified in the said articles shall apply as modified in the manner set out in the Second Schedule.
SECOND SCHEDULE
Modifications of the Air Pollution Act, 1987
The provisions of the Air Pollution Act, 1987 as modified for the purposes of article 12 (2) are set out as follows—
…
Section 28A (6)
"(6) An application under subsection (1) may be made whether or not there has been, in the case of an activity in respect of which a licence or revised licence under Part IV of the Environmental Protection Agency Act, 1992 is in force, a prosecution for an offence under that Part of that Act or under this Act, and. in any other case, a prosecution for an offence under this Act, in relation to the emission concerned.".
C33
Application of section modified (1.08.1994) by Environmental Protection Agency (Extension of Powers) Order 1994 (S.I. No. 206 of 1994), art 10, in effect as per art. 2.
10. The provisions of the Act of 1987 which are specified in the Table hereunder as modified by this Order shall apply (subject to any qualification included in the Table) to the Agency in lieu of the local authority for the purposes of the prevention or limitation, or the remedying of the effects, as the case may be, of air pollution from an activity, other than an activity to which section 99 (2) of the Act applies, in respect of which a licence or revised licence under Part IV of the Act is in force.
Table
Air Pollution Act 1987
|
Section |
Provision |
|
7 |
Subsection (1) for the purpose of the appointment of "authorised persons". |
|
11 |
The whole section |
|
12 |
The whole section |
|
13 |
Subsections (1), (3) and (4). |
|
14 |
The whole section |
|
15 |
The whole section |
|
16 |
Paragraphs (a) and (b) of subsection (1) and subsections (2), (3) and (4). |
|
24 |
The whole section |
|
26 |
The whole section |
|
28 |
The whole section |
|
28A |
Subsections (4) and (6). |
|
54 |
Subsections (1), (2), (3) and (4). |
11. For the purposes of article 10, a function conferred on a local authority or anything required to be done in relation to a local authority under any of the provisions of the Act of 1987 specified in that article, shall, as the case may be, be exercised by, or done in relation to, the Agency in lieu of the local authority.
12. (1) For the purposes of articles 10 and 11, for references to "local authority" in any of the provisions therein referred to (other than section 13 (1) (b) of the Act of 1987) there shall be substituted the following—
"the Environmental Protection Agency, in the case of an activity in respect of which a licence or revised licence under Part IV of the Environmental Protection Agency Act, 1992, is in force, and, in any other case, a local authority",
and cognate words shall be construed accordingly.
(2) For the purposes of articles 10 and 11, the provisions of the Act of 1987 which are specified in the said articles shall apply as modified in the manner set out in the Second Schedule.
SECOND SCHEDULE
Modifications of the Air Pollution Act, 1987
The provisions of the Air Pollution Act, 1987 as modified for the purposes of article 12 (2) are set out as follows—
…
Section 28A (6)
"(6) An application under subsection (1) may be made whether or not there has been, in the case of an activity in respect of which a licence or revised licence under Part IV of the Environmental Protection Agency Act, 1992 is in force, a prosecution for an offence under that Part of that Act or under this Act, and, in any other case, a prosecution for an offence under this Act, in relation to the emission concerned.".
Editorial Notes:
E124
Defence to proceedings under section provided by Environmental Protection Agency Act 1992 (7/1992), s. 84(3)(b)(iii) as substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 15, S.I. No. 393 of 2004.
E125
Defence to proceedings under section provided (1.07.1996) by Waste Management Act 1996 (10/1996), s. 40(12)(b)(iii), S.I. No. 192 of 1996.
E126
Previous affecting provision: defence to proceedings under section provided (23.04.1992) by Environmental Protection Agency Act 1992 (7/1992), s. 83(7)(b)(iii), commenced on enactment; section substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 15, S.I. No. 393 of 2004.
E127
Previous affecting provision: section amended by Courts and Court Officers Act 2002 (15/2002), ss. 13 and 14 and sch. 2, not commenced; repealed (3.02.2014) by Courts and Civil Law (Miscellaneous Provisions) Act 2013 (32/2013), s. 2(1), S.I. No. 566 of 2013.