Environmental Protection Act 1990

32Transition to waste disposal companies etc

(1)In this section “existing disposal authority” means any authority (including any joint authority) constituted as a waste disposal authority for any area before the day appointed for this section to come into force.

(2)The Secretary of State shall, subject to subsection (3) below, give directions to existing disposal authorities or, in the case of joint authorities, to the constituent authorities requiring them, before specified dates, to—

(a)form or participate in forming waste disposal companies; and

(b)transfer to the companies so formed, by and in accordance with a scheme made in accordance with Schedule 2 to this Act, the relevant part of their undertakings;

and a waste disposal authority shall accordingly have power to form, and hold securities in, any company so established.

(3)Subject to subsection (4) below, the Secretary of State shall not give any direction under subsection (2) above to an existing disposal authority, or to the constituent authorities of an existing disposal authority, as respects which or each of which he is satisfied that the authority—

(a)has formed or participated in forming a waste disposal company and transferred to it the relevant part of its undertaking;

(b)has, in pursuance of arrangements made with other persons, ceased to carry on itself the relevant part of its undertaking;

(c)has made arrangements with other persons to cease to carry on itself the relevant part of its undertaking; or

(d)has, in pursuance of arrangements made with other persons, ceased to provide places at which and plant and equipment by means of which controlled waste can be disposed of or deposited for the purposes of disposal.

(4)Subsection (3) above does not apply in a case falling within paragraph (a) unless it appears to the Secretary of State that—

(a)the form of the company and the undertaking transferred are satisfactory; and

(b)the requirements of subsections (8) and (9) below are fulfilled;

and “satisfactory” means satisfactory by reference to the corresponding arrangements to which he would give his approval for the purposes of a transfer scheme under Schedule 2 to this Act.

(5)Where the Secretary of State is precluded from giving a direction under subsection (2) above to any authority by reason of his being satisfied as to the arrangements mentioned in subsection (3)(c) above, then, if those arrangements are not implemented within what appears to him to be a reasonable time, he may exercise his power to give directions under subsection (2) above as respects that authority.

(6)Part I of Schedule 2 to this Act has effect for the purposes of this section and Part II for regulating the functions of waste disposal authorities and the activities of waste disposal contractors.

(7)Subject to subsection (8) below, the activities of a company which a waste disposal authority has formed or participated in forming (whether in pursuance of subsection (2)(a) above or otherwise) may include activities which are beyond the powers of the authority to carry on itself, but, in the case of a company formed otherwise than in pursuance of subsection (2)(a) above, only if the Secretary of State has determined under subsection (4)(a) above that the form of the company and the undertaking transferred to it are satisfactory.

(8)A waste disposal authority shall, for so long as it controls a company which it has formed or participated in forming (whether in pursuance of subsection (2)(a) above or otherwise), so exercise its control as to secure that the company does not engage in activities other than the following activities or any activities incidental or conducive to, or calculated to facilitate, them, that is to say, the disposal, keeping or treatment of waste and the collection of waste.

(9)Subject to subsection (10) below, a waste disposal authority shall, for so long as it controls a company which it has formed or participated in forming (whether in pursuance of subsection (2)(a) above or otherwise), so exercise its control as to secure that, for the purposes of Part V of the [1989 c. 42.] Local Government and Housing Act 1989, the company is an arm’s length company.

(10)Subsection (9) above shall not apply in the case of a company which a waste disposal authority has formed or participated in forming in pursuance of subsection (2)(a) above until after the vesting date for that company.

(11)In this section and Schedule 2 to this Act—

• “control” (and cognate expressions) is to be construed in accordance with section 68 or, as the case requires, section 73 of the Local Government and Housing Act 1989;

• “the relevant part” of the undertaking of an existing disposal authority is that part which relates to the disposal, keeping or treatment or the collection of waste;

and in this section “securities” and “vesting date” have the same meaning as in Schedule 2.

(12)This section shall not apply to Scotland.