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6 1987

AIR POLLUTION ACT, 1987

PART I

Preliminary and General

Short title.

1. —This Act may be cited as the Air Pollution Act, 1987.

Commencement.

2. —This Act shall come into operation on such day or days as may be appointed by order or orders of the Minister, either generally or with reference to a particular purpose or provision, or with reference to a particular area or areas, and different days may be fixed for different purposes and different provisions of this Act and for different areas.

Non application of Act.

3. —This Act shall not apply in relation to an emission arising from—

(i) the disposal at sea of a substance by deliberate combustion for thermal destruction, or

(ii) the use of any radioactive substance or device.

Air pollution.

4. —“Air pollution” in this Act means a condition of the atmosphere in which a pollutant is present in such a quantity as to be liable to—

(i) be injurious to public health, or

(ii) have a deleterious effect on flora or fauna or damage property, or

(iii) impair or interfere with amenities or with the environment.

Best practicable means.

5. —(1) Subject to subsection (3), a reference in this Act to the use of the best practicable means to prevent or limit an emission shall be construed as meaning the provision and proper maintenance, use, operation and supervision of facilities which, having regard to all the circumstances, are the most suitable for such prevention or limitation.

(2) In considering whether facilities are the most suitable for the prevention or limitation of an emission, regard shall be had—

(a) in the case of industrial plant, other than existing industrial plant, to—

(i) the current state of technical knowledge, and

(ii) the requirements of the environment, and

(iii) the costs which would be incurred in providing, maintaining, using, operating and supervising the facilities concerned, and

(b) in any other case, in addition to the matters specified in paragraph (a) (i), (ii) and (iii), to—

(i) the nature, extent and effect of the emission concerned, and

(ii) the age of the existing industrial plant or other premises, the nature of the facilities installed therein and the period during which the plant or other premises is likely to be used or to continue in operation, and

(iii) the costs which would be incurred in renovating the plant or other premises, or of renovating or replacing the facilities therein, in relation to the economic situation of undertakings or enterprises of the class concerned.

(3) The Minister may, from time to time as occasion demands, issue directions specifying the best practicable means for preventing or limiting such emission as may be specified in the direction either generally, or from premises of a particular class or description, and regard shall be had, in the administration of this Act, to any such directions.

(4) Whenever the Minister issues a direction under subsection (3), he shall cause as soon as may be—

(a) a copy of such direction to be sent to each local authority and to An Bord Pleanála,

(b) notice of the issue of the direction to be published in Iris Oifigiúil, and

(c) a copy of the direction to be made available, on payment of such fee (if any) as may be fixed by the Minister, to every person who makes application for such a copy.

(5) In this section “facilities” means machinery, plant, equipment, appliances, apparatus, buildings and other structures.

Industrial plant and existing industrial plant.

6. —(1) “Industrial plant” in this Act means any plant, equipment, appliance, apparatus, machinery, works, building or other structure or any land or any part of any land which is used in the course of trade, business or industry for the purposes of, or incidental to, any industrial process specified in the Third Schedule .

(2) In this Act “existing industrial plant” means industrial plant—

(a) in respect of which a permission under Part IV of the Local Government (Planning and Development) Act, 1963 , is granted prior to such day (in this subsection referred to as “the relevant day”) as may be prescribed by the Minister, or

(b) which is, on the day immediately prior to the relevant day, or was, at any time during the period of twelve months ending on the day immediately prior to the relevant day, used for the purposes of, or incidental to, any industrial process specified in the Third Schedule , other than industrial plant which is an unauthorised structure or the use of which constitutes an unauthorised use.

(3) The Minister may, by regulations, vary, by the addition or deletion of any industrial process, the Third Schedule .

(4) In this section “unauthorised structure” and “unauthorised use” have the meanings assigned to them by the Local Government (Planning and Development) Act, 1963 .

Interpretation generally.

7. —(1) In this Act—

air quality management plan” has the meaning specified in section 46 ;

air quality standard” means a standard prescribed for the purposes of this Act by the Minister pursuant to section 50 ;

authorised fireplace” means a fireplace declared to be an authorised fireplace by the Minister in regulations under section 40 (2);

authorised fuel” means a fuel declared to be an authorised fuel by the Minister in regulations under section 40 (3);

authorised person” means a person who is—

(a) appointed in writing by a local authority to be an authorised person for the purposes of this Act, or

(b) appointed in writing to be an authorised person pursuant to regulations under this Act by a person specified in those regulations;

emission” means, save where the context otherwise requires, an emission of a pollutant into the atmosphere;

emission limit value” means a limit prescribed by the Minister under section 51 ;

fireplace” includes any furnace, incinerator, grate or stove whether open or closed or any other place of combustion;

functions” includes powers and duties;

industrial process” includes any process which is carried on in the course of trade, business or industry and which is for, or incidental to, the making or production of any article, part of an article, substance, energy or thing or the altering, repairing, ornamenting, finishing, cleaning, washing, packing or canning, or the adapting for sale, or breaking up or demolition of any article, substance or thing; including, in particular, the getting, raising, taking, carrying away and processing (including size reduction, grading and heating) of minerals, the storage of mineral wastes and the incineration, treatment or recovery of other wastes;

licence”, in relation to a licence granted under section 32 , includes, where the context so admits or requires, such a licence as revised pursuant to section 33 ;

local authority” means—

(a) in the case of the administrative county of Dublin, other than the borough of Dún Laoghaire, the council of the county of Dublin,

(b) in the case of the borough of Dún Laoghaire, the corporation of the borough,

(c) in the case of a county borough, the corporation of the county borough, and

(d) in the case of any other administrative county, the council of the county,

and references to the functional area of a local authority shall be construed accordingly;

the Minister” means the Minister for the Environment;

monitoring” includes the inspection, measurement, sampling or analysis, for the purposes of this Act, of any emission or of the ambient air in any locality, whether periodically or continuously;

occupier”, in relation to any premises, includes a lessee, any person entitled to occupy the premises and any other person having, for the time being, control of the premises;

pollutant” means any substance specified in the First Schedule or any other substance or energy which, when emitted into the atmosphere, either by itself or in combination with any other substance, may cause air pollution;

premises” includes any messuage, building, structure or land (whether or not there are structures on the land or whether or not the land is covered with water) or any hereditament of any tenure, together with any out-buildings and curtilage;

prescribed” means prescribed by regulations made by the Minister;

private dwelling” means any building or structure or any part of any building or structure (including any ancillary building or structure) which is used, or intended to be used, solely for human habitation but does not include—

(a) a curtilage or garden, or

(b) an ancillary building or structure, or part of a building or structure, having a fireplace with a maximum heating capacity exceeding 45kW which serves more than one dwelling;

public place” means any street, road, seashore or other place to which the public have access, whether by right or by permission, or whether subject to, or free of charge;

the register” means the register kept pursuant to section 17 ;

reserved function” means—

(a) in relation to the council of a county or the corporation of Dún Laoghaire, a reserved function for the purposes of the County Management Acts, 1940 to 1985,

(b) in relation to the corporation of a county borough, a reserved function for the purposes of the Acts relating to the management of the county borough;

smoke” includes soot, ash, grit, and any other particle emitted in smoke;

special control area” means an area in relation to which a special control area order is in operation;

special control area order” has the meaning assigned to it by section 39 .

(2) In this Act, a reference to a section, Schedule or Part is a reference to a section, Schedule or Part of this Act unless there is an indication that a reference to any other enactment is intended.

(3) In this Act, a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless there is an indication that a reference to some other provision is intended.

(4) A reference in this Act to any enactment shall be construed as a reference to that enactment as amended or adapted by any subsequent enactment.

Application of Act to premises belonging to State.

8. —This Act shall apply to premises belonging to or in the occupation of the State.

Repeals.

9. —(1) Each enactment mentioned in column (2) of Part I of the Second Schedule is hereby repealed to the extent specified in column (3) of that Part of that Schedule.

(2) Each Statutory Instrument mentioned in column (2) of Part II of the Second Schedule is hereby repealed to the extent specified in column (3) of that Part of that Schedule.

Regulations.

10. —(1) The Minister may make regulations—

(a) for prescribing any matter referred to in this Act as prescribed,

(b) in relation to any matter referred to in this Act as the subject of regulations, and

(c) for the purpose of giving full effect to this Act.

(2) Regulations made under this Act may make different provisions in relation to different areas, different circumstances and different classes of cases.

(3) Where it is proposed to make regulations under section 6 , a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of the draft has been passed by each House.

(4) Every regulation made by the Minister under this Act (other than a regulation made under section 6 ) shall be laid before each House of the Oireachtas soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done under it.

Offences.

11. —(1) Any person who contravenes any provision of this Act or of any regulation made under this Act or of any notice served under this Act shall be guilty of an offence.

(2) Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of, any director, manager, secretary or other official of such body, such person shall also be guilty of an offence.

(3) In this section, a reference to the contravention of a provision includes, where appropriate, a reference to a refusal, or a failure, to comply with that provision.

Penalties.

12. —(1) A person guilty of an offence under this Act shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 (together with, in the case of a continuing offence, a fine not exceeding £100 for every day on which the offence is continued and not exceeding in total an amount which, when added to any other fine under this paragraph in relation to the offence concerned, equals £1,000), or to imprisonment for any term not exceeding six months or, at the discretion of the court, to both such fine and such imprisonment,

(b) on conviction on indictment, to a fine not exceeding £10,000 (together with, in the case of a continuing offence, a fine not exceeding £1,000 for every day on which the offence is continued), or to imprisonment for any term not exceeding two years or, at the discretion of the court, to both such fine and such imprisonment.

(2) Section 13 of the Criminal Procedure Act, 1967 , shall apply in relation to an offence to which subsection (1) relates as if, in lieu of the penalties provided for in subsection (3) of the said section 13, there were specified therein the penalties provided for in subsection (1) (a), and the reference in subsection (2) (a) of the said section 13 to the penalties provided for in the said subsection (3) shall be construed and have effect accordingly.

Prosecution of offences.

13. —(1) (a) An offence under this Act may be prosecuted summarily by the local authority in whose functional area the offence is committed or, in the case of an offence arising from an order made, or a notice served, by a local authority, by the local authority concerned.

(b) Where a local authority are of opinion that an emission from any premises may cause air pollution affecting any part of their functional area, the local authority may, notwithstanding that the emission is from a premises which is situate outside the functional area of the local authority concerned, initiate summary proceedings for an offence under this Act in relation to the emission concerned.

(2) The Minister may, by regulations under this section, prescribe that such offence as may be specified in the regulations may be prosecuted summarily by such person (including the Minister) as may be so specified in addition to, or in lieu of, the relevant local authority.

(3) Notwithstanding the provisions of section 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be commenced—

(a) at any time within twelve months from the date on which the offence was committed, or

(b) at any time within three months from the date on which evidence sufficient, in the opinion of the person by whom the proceedings are initiated, to justify the proceedings comes to such person's knowledge,

whichever is the later: provided that no such proceedings shall be initiated later than five years from the date on which the offence concerned was committed.

(4) For the purposes of this section, a certificate signed by or on behalf of the person initiating the proceedings as to the date on which evidence relating to the offence came to his knowledge shall be prima facie evidence thereof and in any legal proceedings a document purporting to be a certificate issued for the purposes of this subsection and to be so signed shall be deemed to be so signed and shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate, unless the contrary is shown.

Powers of authorised person.

14. —(1) Subject to subsection (2), an authorised person shall, for any purpose connected with this Act, be entitled, at all reasonable times, to enter into any premises and to bring therein such other persons or equipment as he may consider necessary for the purpose.

(2) An authorised person shall not, other than with the consent of the occupier, enter into a private dwelling unless he has given to the occupier of the dwelling not less than 24 hours notice in writing of his intended entry.

(3) Every authorised person shall be furnished with a certificate of his appointment and when exercising any power conferred on him by or under this Act, the authorised person shall, if requested by any person affected, produce the certificate to that person.

(4) Whenever an authorised person enters into any premises pursuant to this section, he may therein—

(a) make such plans and carry out such inspections,

(b) make such tests and take such samples,

(c) require from the owner or occupier of the premises or from any other person on the premises such information, or

(d) inspect such records or such documents,

as he, having regard to all the circumstances, considers necessary for the purposes of this Act.

(5) Any person who obstructs an authorised person in the exercise of his powers under this section or who fails to comply with a requisition of an authorised person or who wilfully withholds any information which the authorised person requires shall be guilty of an offence.

(6) Where an authorised person in the exercise of his powers under this section is prevented from entering any premises, the authorised person or the person by whom he was appointed may apply to the District Court for a warrant authorising such entry.

(7) The Minister may make regulations for the purposes of this section.

(8) Without prejudice to the generality of subsection (7), regulations under this section may provide for all or any of the following matters:

(a) the taking of samples and the carrying out of tests, examinations and analysis of samples;

(b) the specification of the classes of persons to be responsible for taking such samples and for the carrying out of such tests, examinations and analysis;

(c) the specification of the certificate or other evidence to be given of the result of any such test, examination or analysis and the class or classes of person by whom such certificate or evidence is to be given;

(d) that any certificate or other evidence given or to be given in respect of any test, examination or analysis of any sample shall in relation to that sample be evidence, without further proof, of the result of the test, examination or analysis until the contrary is shown.

Service of notices.

15. —(1) Any notice required to be served or given by or under this Act shall be addressed to the person concerned and served or given in one of the following ways—

(a) by addressing it to him by name and delivering it to him,

(b) by leaving it at the address at which he ordinarily resides,

(c) by sending it by post in a prepaid registered letter addressed to him at the address at which he ordinarily resides,

(d) if an address for the service of notices has been furnished by him, by leaving it at, or sending it by prepaid registered post addressed to him to, that address,

(e) where the address at which he ordinarily resides cannot be ascertained by reasonable inquiry and notice is required to be served on, or given to, him in respect of any premises, by delivering it to a person over the age of 16 years of age resident in, or employed on, the premises or by affixing it in a conspicuous position on or near the premises.

(2) Where the name of the occupier of a premises cannot be ascertained by reasonable inquiry, a notice under this Act may be addressed to “the occupier”.

(3) For the purposes of this section, a company registered under the Companies Acts, 1963 to 1986, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

Obligation to give information.

16. —(1) A local authority may, for any purpose relating to their functions under this Act, by notice in writing, require—

(a) the occupier of any premises within their functional area, within such period (being not less than fourteen days after the date of the service of the notice) as may be specified in the notice, to furnish in writing to the authority such particulars as to—

(i) any activity or process being carried out on the premises,

(ii) any fireplaces in the premises, and

(iii) the fuels or other materials being burned on the premises,

as may be so specified,

(b) the occupier of any premises (other than a private dwelling) within their functional area, within such period as may be specified in the notice, to furnish in writing whether by periodic returns or otherwise, such information concerning any emission from the premises as may be so specified, and

(c) any person engaged in the production, treatment, importation, placing on the market, distribution or sale of any fuel to furnish in writing to the authority such particulars as to the type and quantity of fuel produced, treated, imported, placed on the market, distributed or sold by such person, as the case may be, within the functional area of the authority concerned as may be specified in the notice.

(2) A notice under this section, whether or not requiring periodic returns, shall not require the provision of information—

(a) at intervals of less than three months, or

(b) in respect of a period in excess of twelve months.

(3) Any person who has been served with a notice under this section and who furnishes any information in reply to the notice which he knows to be false or misleading in a material particular shall be guilty of an offence.

(4) Information furnished to a local authority pursuant to a notice under this section shall not be given by the local authority to any person other than a person prescribed.

The register.

17. —(1) Every local authority shall as soon as may be after the commencement of this Act establish and maintain a register (in this Act referred to as “the register”) for the purposes of this Act and shall make therein all such entries and additions as may, from time to time, be prescribed.

(2) The register shall be kept at the offices of the local authority and shall be made available for inspection by any person during office hours.

(3) When a request is made to a local authority for a copy of an entry in the register, the copy shall be issued to the applicant on the payment by him to the local authority of such fee (if any) as they shall fix not exceeding the reasonable cost of making the copy.

(4) Every document purporting to be a copy of an entry in the register and purporting to be certified by an officer of a local authority to be a true copy of the entry shall, without proof of the signature of the person purporting so to certify or that he was such officer, be received in evidence in any legal proceedings and shall, until the contrary is proved, be deemed to be a true copy of the entry and to be evidence of the terms of the entry.

(5) Evidence of an entry in the register may be given by production of a copy thereof certified pursuant to this section and it shall not be necessary to produce the register itself.

Research into air pollution.

18. —(1) A local authority may organise and conduct research, surveys or investigations into the nature and extent, the cause and effect, and the prevention or limitation, of air pollution and may establish and maintain educational programmes relating to such matters and may publish, or cause to be published, any information derived from any such research, surveys, investigations or educational programmes.

(2) A local authority may support or assist, by means of a financial contribution or otherwise, any person, or body of persons, engaged, or proposing to engage, in any research, survey or investigation into the nature and extent, the cause and effect, and the prevention or limitation, of air pollution or in any educational programme relating to such matters.

(3) The making of a financial contribution pursuant to subsection (2) shall be a reserved function.

(4) The Minister, with the consent of the Minister for Finance, may make a financial contribution to any person, or body of persons, engaged, or proposing to engage, in research, surveys or investigations into the nature and extent, the cause and effect, and the prevention or limitation, of air pollution or in any educational programme relating to such matters.

Expenses.

19. —The expenses incurred by the Minister in the administration of this Act shall be paid out of moneys provided by the Oireachtas to such extent as may be sanctioned by the Minister for Finance.

Consultation by local authorities.

20. —The Minister may make regulations requiring a local authority to consult with such bodies or persons as may be specified in relation to the performance of such of their functions under this Act as may be prescribed.

Transfer of functions.

21. —(1) The Minister may, by regulations, provide that any function conferred on a local authority under this Act shall, in addition to or in lieu of, being performed by a local authority, be performed by such other person (including the Minister or another local authority) or body of persons as may be specified.

(2) In particular and without prejudice to the generality of subsection (1), regulations under this section may provide for the performance of any function conferred on a local authority by this Act by a body established under the Local Government Services (Corporate Bodies) Act, 1971 , for that purpose.

(3) Whenever regulations under this section are in force, a reference in this Act to a local authority shall be construed as including a reference to the person or body specified in the regulations and the function to which the regulations relate shall be a function of that person or body.

(4) Regulations under this section may contain such incidental, supplementary, consequential and transitional provisions (including provisions modifying any provision of this Act) as appear to the Minister to be necessary for the purpose of, in consequence of, or to give full effect to the regulations.

Power to make charges in relation to emissions.

22. —(1) A local authority may, in accordance with regulations made by the Minister under this section, make charges in relation to such emissions as may be specified in the regulations.

(2) Without prejudice to the generality of subsection (1), regulations under this section may make provision for all or any of the following matters:

(a) specify the emissions in relation to which a charge under this section may be imposed;

(b) specify the manner in which such a charge is to be imposed;

(c) specify the method in which the amount of such charge is to be calculated;

(d) enable a local authority to make different charges under this section in respect of different emissions and in different circumstances;

(e) specify the manner in which representations may be made to a local authority regarding the imposition of a charge under this section and provide for the procedure to be followed in respect of such representations;

(f) provide for the amendment, revocation or review of charges imposed under this section.

(3) A local authority may recover the amount of any charges made by them under this section from the person by whom they are payable as a simple contract debt in any court of competent jurisdiction.