Animal Health Act 1981

PART IIDisease

Outbreak

15Separation and notice

(1)Any person having in his possession or under his charge an animal affected with disease shall—

(a)as far as practicable keep that animal separate from animals not so affected; and

(b)with all practicable speed give notice of the fact of the animal being so affected to a constable of the police force for the police area in which the animal is so affected.

(2)Any person who knows or suspects that an animal (whether in captivity or not) is affected with rabies shall give notice of that fact to a constable unless—

(a)he believes on reasonable grounds that another person has given notice under this section in respect of that animal, or

(b)he is exempted from doing so by an order under section 1 above,

and, if the animal is in his possession or under his charge, shall as far as practicable keep the animal separate from other animals.

(3)The constable to whom notice is given shall forthwith give information of it to such person or authority as the Ministers by order direct.

(4)The Ministers may make such orders as they think fit for prescribing and regulating the notice to be given to or by any person or authority in case of any particular disease or in case of the illness of an animal, and for supplementing or varying for those purposes any of the provisions of subsections (1) to (3) above.

(5)Subsections (1) to (4) above do not have effect in relation to poultry, but the Ministers may by order prescribe and regulate—

(a)the separation of diseased poultry from poultry not affected with disease ; and

(b)the notification of disease in, or illness of, poultry.

(6)The local authority shall pay to a veterinary surgeon or veterinary practitioner, in respect of every notification of disease made by him to the local authority in pursuance of an order under this Act requiring such a notification, such fee not exceeding 12 ½ p as may be prescribed by the order.

(7)A person is guilty of an offence against this Act who, without lawful authority or excuse, proof of which shall lie on him, fails where required by this Act or by an order of the Minister—

(a)to keep an animal separate so far as practicable; or

(b)to give notice of disease with all practicable speed.

16Treatment after exposure to infection

(1)For the purpose of preventing the spread of disease, the Ministers may cause to be treated with serum or vaccine, or with both serum and vaccine, any animal or bird—

(a)which has been in contact with a diseased animal or bird, or

(b)which appears to the Ministers to be or to have been in any way exposed to the infection of disease ; or

(c)which is in an infected area.

(2)The powers conferred by this section shall be construed as extending to the taking of any action—

(a)which is requisite for enabling the appropriate treatment to be administered, or

(b)which is otherwise required in connection with that treatment,

and for the purpose of exercising those powers any officer of the Minister may, subject to production of his authority on demand, enter any land or premises taking with him such other persons, if any, as he considers requisite.

Infection

17Powers as to infected places and areas

(1)The Ministers may make such orders as they think fit for prescribing the cases in which places and areas are to be declared to be infected with a disease and the authority, mode, and conditions by, in, and on which declarations in that behalf are to be made, and their effect and consequences, and their duration and discontinuance, and other connected matters.

(2)Every place or area so declared infected shall be an infected place or area for the purposes of this Act.

(3)A notice served in pursuance of directions of the Minister or of a local authority by virtue of an order made under this section shall be conclusive evidence to all intents of the existence or past existence or cessation of the disease, or of the error, and of any other matter on which the notice proceeds.

(4)Notwithstanding anything in this Act, a defined part of a port or aerodrome, or any part thereof, shall not be declared to be an infected place, or be made part of an infected place, otherwise than by the Ministers.

18Other provisions as to infected places and areas

(1)Notwithstanding anything in this Act, where the Minister, on inquiry, and after communication with the local authority, is satisfied that a declaration of a place being an infected place has been made in error—

(a)respecting the existence or past existence of disease, or

(b)respecting the limits of a place, or

(c)respecting any other matter of fact on which the declaration proceeded,

the Minister may by order cancel the declaration as regards the infected place, or as regards any part of it, as he thinks fit.

(2)Where, in accordance with the provisions of this Act—

(a)a place or an area or a portion of an area is declared free from a disease, or

(b)a declaration of a place being an infected place is cancelled as regards the place or as regards any part of it,

then, from the time specified in that behalf by the Minister, or a local authority, as the case may be, the place, or area or that portion of the area or that part of the place, shall cease to be, or to be in, an infected place or area.

(3)An order of the Minister—

(a)declaring a place to be an infected place or area, or

(b)declaring a place or area, or a portion of an area, to be free from disease, or

(c)cancelling a declaration,

shall be conclusive evidence to all intents of the existence or past existence or cessation of the disease, or of the error, and of any other matter on which the order proceeds.

19Destruction of foxes etc. on rabies infection

(1)An order under section 17 above prescribing the cases in which areas are to be declared to be infected with rabies may include provision for the destruction in an area declared to be so infected, by persons authorised in accordance with the order, of foxes and such other wild mammals as may be prescribed by the order (not in either case being animals held in captivity).

(2)An order made by virtue of subsection (1) above may provide for—

(a)authorising any person to enter any land (other than a dwellinghouse) for the purpose of carrying out, or of deciding whether to carry out, the destruction there of animals in accordance with the order;

(b)authorising the erection of fences or other obstacles to restrict the movement of animals into and out of an area where destruction is carried out;

(c)regulating the ownership and disposal of the carcases of animals destroyed in accordance with the order;

(d)prohibiting any person from obstructing the destruction of animals in accordance with the order and from interfering with the carcases of animals destroyed;

(e)authorising the use of methods of destruction which would otherwise be unlawful.

(3)An order made by virtue of subsection (1) shall include provision as to the steps to be taken to inform the occupier of any land where it is proposed that animals should be destroyed, and other persons who may be there, of the proposal and of the methods of destruction to be used.

20Additional provisions under s. 17 on rabies infection

(1)An order under section 17 above prescribing the cases in which areas are to be declared to be infected with rabies may include provision for—

(a)requiring notice to be given, in such circumstances as may be prescribed by the order, of the death in an area declared to be so infected of such domestic or wild mammals as may be prescribed;

(b)regulating the ownership and disposal of the carcases of animals whose deaths are required to be notified by virtue of paragraph (a) above;

(c)requiring and regulating the vaccination, confinement and control in such area of such domestic mammals and mammals held in captivity as may be prescribed by the order;

(d)authorising the seizure and detention and the disposal or destruction of any animal in respect of which any provision made by virtue of paragraph (c) above is not complied with;

(e)authorising any person to enter any land for the purpose of seizing or destroying any animal in pursuance of the order.

(2)An order under section 17 prescribing the cases in which areas are to be declared to be infected with rabies may provide—

(a)for the division of an area into zones (whether denned by reference to distance from the places within the area where diseased animals have been found or otherwise) ; and

(b)for the consequences which may follow a declaration to be different for different zones.

21Destruction of wild life on infection other than rabies

(1)This section—

(a)applies to any disease other than rabies which is for the time being a disease for the purposes of section 1(a) above; and

(b)is without prejudice to any powers conferred by other provisions of this Act on the Minister, the appropriate Minister and the Ministers.

(2)The Minister, if satisfied in the case of any area—

(a)that there exists among the wild members of one or more species in the area a disease to which this section applies which has been or is being transmitted from members of that or those species to animals of any kind in the area, and

(b)that destruction of wild members of that or those species in that area is necessary in order to eliminate, or substantially reduce the incidence of, that disease in animals of any kind in the area,

may, subject to the following provisions of this section, by order provide for the destruction of wild members of that or those species in that area.

(3)Before making an order under this section the Minister shall consult with the Nature Conservancy Council, and every order so made shall specify—

(a)the area to which it applies;

(b)the disease to which it applies; and

(c)the one or more species to which it relates.

(4)An order under this section providing for the destruction of wild members of one or more species in any area may provide for authorising the use for that purpose of one or more methods of destruction that would otherwise be unlawful.

The order shall not authorise such use unless the Minister is satisfied that use of the method or methods in question is the most appropriate way of carrying out that destruction, having regard to all relevant considerations and, in particular, the need to avoid causing unnecessary suffering to wild members of the species in question.

(5)An order under this section may include provision—

(a)for ensuring that destruction of wild members of any species to which the order relates is properly and effectively carried out, and in particular—

(i)for preventing persons from taking into captivity harbouring, concealing or otherwise protecting wild members of any such species with intent to prevent their destruction, or

(ii)in any other way obstructing or interfering with anything which has been, is being or is to be done or used in connection with that destruction"

(b)for regulating the ownership and disposal of the carcases of members of any such species destroyed in the area to which the order relates.

(6)Before commencing the destruction of wild members of a species on any land within an area to which an order under this section applies the Minister shall take all reasonable steps to inform—

(a)the occupier of the land, and

(b)any other person who may be there,

of his intention to carry out that destruction and of the methods of destruction to be used.

It shall be the Minister's duty to ensure that destruction is carried out on any such land in as safe a manner as is possible in all the circumstances.

(7)Where an order under this section is in force, the Minister shall have power to take such measures (including the erection of fences or other obstacles) as he considers appropriate—

(a)for preventing the movement of living creatures into or out of the area or any part of the area to which the order applies while destruction of wild members of any species to which the order relates is being carried out in the area; and

(b)where destruction of wild members of any such species has been or is to be carried out in any part of that area, for preventing the recolonisation of that part by members of that species for as long as he considers necessary to prevent reappearance among them of the disease to which the order applies.

(8)As soon as may be after the Minister is satisfied, in the case of any land, that any measures affecting that land which have been taken in connection with an order under this section are no longer necessary, he shall—

(a)remove from the land anything placed or erected on it; and

(b)take such other steps as are reasonably practicable to reinstate the land.

(9)In this section and section 22 below—

• " animals " includes horses,

• " species " means any species of bird or mammal, except man,

and references to wild members of any species in an area are references to members of the species in the area that are neither domesticated nor held in captivity.

(10)A statutory instrument containing an order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

22Powers of entry etc. for s. 21

(1)In relation to any disease to which section 21 above applies the following persons are authorised officers for the purposes of this section—

(a)an officer of the appropriate Minister,

(b)a veterinary inspector, and

(c)any person who, not being such an officer or inspector, is authorised by the appropriate Minister to exercise the powers conferred by this section,

and subsection (9) of section 21 applies to this section.

(2)Where an authorised officer has reasonable grounds for suspecting, in the case of any area, that there exists among the wild members of any species in the area a disease to which section 21 applies, he may enter any land in the area and—

(a)take samples of the wild members of that species, or of their excreta, or of any materials (whether or not forming part of the land) with which wild members of that species may have been in contact;

(b)carry out any other investigations which he considers necessary for the purpose of determining, as regards that species and that disease, whether an order under section 21 should be made in respect of the whole or part of the area in question.

(3)An authorised officer may at any time enter any land in the area to which an order under section 21 applies for any of the following purposes—

(a)to carry out the destruction of any wild members of a species to which the order relates that may be on that land;

(b)to take any such measures as are mentioned in subsection (7) of that section ;

(c)to ascertain, as regards any wild members of a species to which the order relates, whether destruction has been effectively carried out.

(4)Where in pursuance of an order under section 21 destruction of wild members of any species to which the order relates has been carried out on any land in the area to which the order applies, then, for the purpose of ascertaining—

(a)whether the land has been or is being recolonised by wild members of that species, and, if so,

(b)whether there exists among them the disease to which the order applies (or, if the order has been revoked, to which it previously applied),

an authorised officer may enter the land and take such samples of or relating to that species as are mentioned in paragraph (a) of subsection (2) above; but the powers conferred by this subsection shall not be exercisable at any time more than 2 years after the revocation of the order in question.

(5)Nothing in this section authorises any person to enter a dwellinghouse.

(6)A person entering any land in the exercise of powers conferred on him by this section shall, if so required by the owner or occupier or person in charge of the land—

(a)produce to him some duly authenticated document showing his authority ; and

(b)state in writing his reasons for entering.

(7)Without prejudice to subsection (6) above, an authorised officer—

(a)shall not demand admission as of right to any land forming part of a nature reserve (within the meaning of section 15 of the [1949 c. 97.] National Parks and Access to the Countryside Act 1949) maintained or managed by the Nature Conservancy Council under section 1 of the [1973 c. 54.] Nature Conservancy Council Act 1973 unless 7 days' notice of the intended entry has been given to die Council; and

(b)in exercising any of his powers under subsection (2), (3) or (4) above on any such land shall, as far as possible, do so in accordance with such reasonable requirements for minimising damage to flora, fauna or geological or physiographical features within the reserve as may have been notified by the Council to the appropriate Minister.

(8)The preceding provisions of this section are without prejudice to any powers conferred on inspectors or others by or by virtue of any other provision of this Act.

23Orders as to infected places and areas

The Ministers may make such orders as they think fit for all or any of the following purposes—

(a)for prescribing and regulating the publication by placards, handbills, or otherwise, in the immediate neighbourhood of a place or area declared infected, of the fact of such declaration ;

(b)for prohibiting or regulating the movement of animals and persons into, within, or out of an infected place or area;

(c)for prescribing and regulating the isolation or separation of animals being in an infected place or area;

(d)for prohibiting or regulating the removal of carcases, fodder, litter, utensils, pens, hurdles, dung, or other things into, within, or out of an infected place or area;

(e)for prescribing and regulating the destruction, burial, disposal, or treatment of carcases, fodder, litter, utensils, pens, hurdles, dung, or other things, being in or removed from an infected place or area ;

(f)for prescribing and regulating the cleansing and disinfection of infected places and areas, or parts of them ;

(g)for prescribing and regulating the disinfection of the clothes of persons being in an infected place, and the use of precautions against the spreading of disease by such persons.

24Rabies: quarantine and virus control

The provision which may be made by orders under section 1 above shall (without prejudice to the generality of that provision) include provision—

(a)for requiring mammals which may be carriers of rabies to be kept in quarantine in such cases, for such periods and under such conditions as may be prescribed by the order;

(b)for prohibiting or regulating—

(i)the keeping and importation of rabies virus in any form; and

(ii)the deliberate introduction of the virus into animals.

25Movement of diseased or suspected animals

The Ministers may make such orders as they think fit for all or any of the following purposes—

(a)for prohibiting or regulating the exposure of diseased or suspected animals in markets or fairs or sale-yards, or other public or private places, where animals are commonly exposed for sale, and their placing in lairs or other places adjacent to or connected with markets or fairs, or where animals are commonly placed before exposure for sale;

(b)for prohibiting or regulating the sending or carrying of diseased or suspected animals, or of dung or other thing likely to spread disease, or causing them to be sent or carried, on railways, canals, rivers, or inland navigations, or in coasting vessels, or in an aircraft engaged in a flight or a part of a flight beginning and ending in Great Britain, or otherwise ;

(c)for prohibiting or regulating the carrying, leading, or driving of diseased or suspected animals, or causing them to be carried, led or driven, on highways or thoroughfares, or elsewhere ;

(d)for prohibiting or regulating the placing or keeping of diseased or suspected animals on commons or unenclosed lands, or in fields or other places insufficiently fenced, or on the sides of highways.

26Pleuro-pneumonia or foot-and-mouth disease found in transit

(1)The Minister shall by orders make such provision as he thinks necessary or expedient respecting the case of animals found to be affected with pleuro-pneumonia or foot-and-mouth disease—

(a)while exposed for sale or exhibited in a market, fair, sale-yard, place of exhibition, or other place; or

(b)while placed in a lair or other place before exposure for sale; or

(c)while in transit or in course of being moved by land, water or air; or

(d)while being in a slaughter-house or place where animals are slaughtered or are kept with a view to slaughter; or

(e)while being on common or unenclosed land; or

(f)generally, while being in a place not in the possession or occupation or under the control of the owner of the animals.

(2)The Minister shall by orders under this section make such provision as he thinks fit for the consequences under this Act of animals being so found in the circumstances mentioned above—

(a)as well with regard to the animals as with regard to the places where they are when so found, and other places ; and

(b)with regard to animals being or having been in the same shed or stable, herd or flock as, or in contact with, animals so found.

(3)The Minister may, by orders under this section relating to particular places, make such provision as he thinks fit for the consequences mentioned above.

(4)Every order under this section shall have full effect not withstanding—

(a)any provision of this Act requiring the declaration of a place infected with pleuro-pneumonia or foot-and-mouth disease, or relating to any consequence of such a declaration, or to any matter connected with such a declaration; and

(b)any other provision whatsoever of this Act.

27Exclusion of strangers

(1)A person owning or having charge of any animals in a place or area declared infected with any disease may affix, at or near the entrance to a building or enclosure in which the animals are, a notice forbidding persons to enter the building or enclosure without the permission mentioned in the notice.

(2)Thereupon it shall not be lawful for any person, not having by law a right of entry or way into, on, or over that building or enclosure, to enter or go into, on, or over the building or enclosure without that permission.

28Seizure of diseased or suspected animals

The Ministers may make such orders as they think fit—

(a)for prescribing and regulating the seizure, detention and disposal of a diseased or suspected animal exposed, carried, kept or otherwise dealt with in contravention of an order of the Minister ; and

(b)for prescribing and regulating the liability of the owner or consignor or consignee of such animal to the expenses connected with its seizure, detention and disposal.

Risk to human health

29Control of zoonoses

(1)This section shall have effect with a view to reducing the risk to human health from any disease of, or organism carried in, animals ; and the Ministers may by order designate any such disease or organism which in their opinion constitutes such a risk as is mentioned in this subsection.

In this section " disease " is not restricted by its definition in this Act.

(2)Where any disease or organism is for the time being designated under this section, the Ministers may by order—

(a)provide for any provision of this Act which has effect in relation to the disease to have that effect in relation to the disease so designated subject to such modifications as may be specified in the order;

(b)apply any provision of this Act, subject to any modifications so specified, in relation to the presence of the organism in an animal as if the presence of the organism were a disease to which this Act applied.

(3)The Ministers may by order make provision for requiring a person who, in such circumstances as are specified by the order, knows or has reason to suspect that an animal of such description as is specified in the order is or was—

(a)affected with a disease designated under this section, or

(b)a carrier of an organism so designated,

to furnish to such person and in such form and within such period as are specified in the order such information relating to the animal as is so specified.

30Provisions supplemental to s. 29

(1)If it appears to the appropriate Minister that a person may have information relating to—

(a)an animal affected with a disease designated under section 29 above, or

(b)an animal which is a carrier of an organism so designated,

that Minister may by notice in writing require him to furnish to such person and in such form and within such period as are specified in the notice such information relating to the animal as he possesses and is so specified.

In this section " disease " is not restricted by its definition iu this Act.

(2)Where a veterinary inspector has reason to believe that an animal such as is mentioned in subsection (1) above is or has been on any land he may, on producing if so required evidence of his authority—

(a)enter the land and make such tests and take such samples of any animal, feeding stuff, litter, dung, vessel, pen, vehicle or other thing whatsoever which is on or forms part of the land as he thinks appropriate for the purpose of ascertaining whether such an animal is or has been on the land; and

(b)require the owner or person having charge of any animals on the land to take such reasonable steps as the inspector may specify for the purpose of collecting or restraining them so as to facilitate the exercise in relation to them of the powers conferred on the inspector by paragraph (a) above.

(3)A person is guilty of an offence against this Act who—

(a)fails to comply with a requirement imposed on him by virtue of section 29 and this section ; or

(b)in purported compliance with a requirement to furnish information which is imposed on him by virtue of section 29 and this section, knowingly or recklessly furnishes information which is false in a material particular.

Slaughter

31Slaughter in certain diseases

Schedule 3 to this Act has effect as to the slaughter of animals in relation to—

(a)cattle plague;

(b)pleuropneumonia;

(c)foot-and-mouth disease;

(d)swine-fever; and

(e)diseases of poultry.

32Slaughter in other diseases

(1)The Minister may, if he thinks fit, cause to be slaughtered any animal which—

(a)is affected or suspected of being affected with any disease to which this section applies ; or

(b)has been exposed to the infection of any such disease.

(2)This section applies to such diseases of animals as may from time to time be directed by order of the Ministers.

(3)The Minister shall pay for animals slaughtered under this section compensation of such amount as may be determined in accordance with scales prescribed by order of the Minister made with the Treasury's approval.

A statutory instrument containing an order under this subsection shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(4)This section does not apply to poultry; and in this section—

(a)" animals " includes horses ;

(b)" disease " is not restricted by its definition in this Act.

33Additional staff and expenses

The Minister may, for the purposes of his powers under this Act relating to the slaughter by him of animals, employ such additional inspectors, valuers and other persons, and at such remuneration, and may incur such expenses, as, subject to the approval of the Minister for the Civil Service, he thinks necessary.

34Slaughter and compensation generally

(1)The Minister may, notwithstanding anything in this Act, reserve for observation and treatment an animal liable to be slaughtered under this Act at his direction but subject to payment of compensation by him as in case of actual slaughter.

(2)Where an animal has been slaughtered under this Act at the Minister's direction, the carcase of the animal shall belong to the Minister and shall be buried, or sold, or otherwise disposed of by him, or as he directs, as the condition of the animal or carcase and other circumstances may require or admit.

(3)If, in any case, the sum received by the Minister on sale of a carcase under this section exceeds the amount paid for compensation to the owner of the animal slaughtered, he shall pay that excess to the owner, after deducting reasonable expenses.

(4)Where an animal has been slaughtered under this Act at the Minister's direction, he may use for the burial of the carcase any ground in the possession or occupation of the owner of the animal and suitable in that behalf, or any common or unenclosed land.

(5)If the owner of an animal slaughtered under this Act at the Minister's direction has an insurance on the animal, the amount of the compensation awarded to him under this Act may be deducted by the insurers from the amount of the money payable under the insurance before they make any payment in respect of it.

(6)Notwithstanding anything in this Act, the Minister may, if he thinks fit, withhold, either wholly or partially, compensation or other payment in respect of an animal slaughtered under this Act at his discretion, where the animal, being an imported animal, was in his judgment diseased at the time of its landing or, before or while being brought from a member State, exposed to the infection of disease.

(7)The Ministers may make such orders as they think fit for all or any of the following purposes—

(a)for prescribing the mode of ascertainment of the value of an animal slaughtered, or liable to be slaughtered, at their direction;

(b)for regulating applications for, and the mode of payment of, compensation;

(c)for prescribing and regulating the destruction, burial, disposal or treatment of carcases of animals slaughtered at their direction,

and they may by order provide that subsection (6) above shall cease to have effect.

Carcases etc. liable to spread disease

35Seizure and disposal of carcases etc.

(1)The Ministers may by order make such provision—

(a)for the seizure of carcases, fodder, litter, eggs, milk, skim milk, whey, buttermilk, cream or fertilisers, and

(b)for the destruction, burial, disposal or treatment of anything seized under the order,

as they may think expedient for preventing the spread of any disease to which this subsection applies.

(2)Subsection (1) above applies to the diseases in the case of which powers of slaughter are exercisable under this Act, that is to say—

(a)to cattle plague, pleuro-pneumonia, foot-and-mouth disease and swine-fever, and any disease within the meaning of section 32 above to which that section for the time being applies; and

(b)to any disease as defined in relation to poultry by or under section 88 below.

(3)The Ministers may make such orders as they think fit—

(a)for prescribing and regulating the destruction, burial, disposal or treatment of carcases of animals dying while diseased or suspected ;

(b)for prescribing and regulating the destruction, burial or disposal of anything seized under subsection (1);

(c)for prohibiting or regulating the digging up of carcases which have been buried.

(4)A person is guilty of an offence against this Act who, without lawful authority or excuse, proof of which shall lie on him—

(a)throws or places, or causes or suffers to be thrown or placed, into any river, stream, canal, navigation, or other water, or into the sea within 4.8 kilometres of the shore, the carcase of an animal which has died of disease, or been slaughtered as diseased or suspected; or

(b)digs up, or causes to be dug up, a carcase buried under the direction of the Minister or of a local authority or of a receiver of wreck.

36Compensation for seizure

(1)The Minister shall pay compensation—

(a)for anything seized under an order made by virtue of section 35(1) above for the purpose of preventing the spread of foot-and-mouth disease;

(b)for anything seized under such an order for the purpose of preventing the spread of any other disease to which section 35(1) applies, except the carcase of any animal or bird affected with that disease.

(2)The Ministers may by order provide for the payment by the Minister of compensation for carcases seized as mentioned above of animals or birds affected with any disease to which section 35(1) applies other than foot-and-mouth disease or fowl pest.

(3)The compensation payable under subsection (1) or subsection (2) above for anything seized shall be its value at the time of seizure.

(4)Where anything destroyed, buried or disposed of under an order made under paragraph (e) of section 23 above could have been seized under an order made under section 35(1), the Minister shall pay the like compensation (if any) for it as if it had been so seized at the time of the destruction, burial or disposal.

(5)The Ministers may make such orders as they think fit for all or any of the following purposes—

(a)for prescribing how the value of anything seized under section 35(1) is to be ascertained ;

(b)for regulating applications for, and the mode of payment of, any compensation payable by virtue of this section;

(c)for prescribing and regulating the destruction, burial or disposal of anything seized under section 35(1).