Legalize / United Kingdom / Scotland / Scottish-Statutory-Instrument

The Environmental Regulation (Enforcement Measures) (Scotland) Order 2015

Type Scottish-Statutory-Instrument

Publication 2015-11-11

Last updated 2025-06-26

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

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articles 1

Reform history JSON API

Made: 11th November 2015

Coming into force: 12th November 2015

In accordance with section 58(3) of the Regulatory Reform (Scotland) Act 2014, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament[^f00003].

PART 1 — Introduction

Citation and commencement

1

This Order may be cited as the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015 and comes into force on the day after the day on which it is made.

Interpretation

2

(1) In this Order—

“the Act” means the Regulatory Reform (Scotland) Act 2014;

“certificate of non-compliance” has the meaning given in paragraph 4(2) of Schedule 3;

“costs recovery notice” has the meaning given in paragraph 9(1) of Schedule 2;

“enforcement measure” has the meaning given in article 9(5);

“enforcement undertaking” has the meaning given in paragraph 1(3) of Schedule 3;

“fixed monetary penalty” has the meaning given in paragraph 1(3) of Schedule 1;

“late payment interest” has the meaning given in paragraph 18(1) of Schedule 2; and

“late payment penalty” has the meaning given in paragraph 10 of Schedule 1;

“non-compliance penalty” has the meaning given in paragraph 14(2) of Schedule 2;

“notice of intent”— in relation to a fixed monetary penalty, has the meaning given in paragraph 4(1) of Schedule 1; and in relation to a variable monetary penalty, has the meaning given in paragraph 3(1) of Schedule 2;

“relevant offence”— in relation to a fixed monetary penalty, has the meaning given in paragraph 2 of Schedule 1; in relation to a variable monetary penalty, has the meaning given in paragraph 2 of Schedule 2; and in relation to an enforcement undertaking, has the meaning given in paragraph 2 of Schedule 3;

“variable monetary penalty” has the meaning given in paragraph 1(3) of Schedule 2;

“VMP undertaking” has the meaning given in paragraph 12(2) of Schedule 2.

(2) Where anything under this Order is to be done “in writing” that includes an electronic communication, as defined in section 15(1) of the Electronic Communications Act 2000[^f00004], which is capable of being reproduced (and “written” is to be construed accordingly).

PART 2 — Enforcement measures

The enforcement measures

3

(1) Schedule 1 makes provision for and about the imposition by SEPA of a fixed monetary penalty on a person in relation to a relevant offence.

(2) Schedule 2 makes provision for and about the imposition by SEPA of a variable monetary penalty on a person in relation to a relevant offence.

(3) Schedule 3 makes provision for and about enabling SEPA to accept an enforcement undertaking from a person in a case where SEPA has reasonable grounds to suspect that the person has committed a relevant offence.

Combination of sanctions

4

(1) SEPA may not impose a fixed monetary penalty on a person in relation to an offence constituted by an act or omission if a fixed monetary penalty has already been imposed on that person in respect of the same offence constituted by the same act or omission.

(2) SEPA may not impose a variable monetary penalty on a person in relation to an offence constituted by an act or omission if a variable monetary penalty has already been imposed on that person in respect of the same offence constituted by the same act or omission.

(3) SEPA may not serve a notice of intent relating to a fixed monetary penalty on a person in relation to any act or omission where a variable monetary penalty has been imposed on that person in relation to the act or omission.

(4) SEPA may not serve a notice of intent relating to a variable monetary penalty on a person in relation to any act or omission where a fixed monetary penalty has been imposed on the person in relation to the act or omission.

(5) Where a fixed monetary penalty is imposed on a person, SEPA may not impose a variable monetary penalty on the person in respect of the act or omission giving rise to the penalty.

(6) Where a variable monetary penalty is imposed on a person, SEPA may not impose a fixed monetary penalty on the person in respect of the act or omission giving rise to the penalty.

(7) SEPA may not impose on a person a fixed monetary penalty or variable monetary penalty in respect of an offence constituted by an act or omission if, in respect of that offence as constituted by that act or omission—

(a) criminal proceedings have been commenced against the person;

(b) the person has been given a warning by the procurator fiscal;

(c) the person has been sent a conditional offer (within the meaning of section 302 of the Criminal Procedure (Scotland) Act 1995 (fixed penalty: conditional offer by procurator fiscal)[^f00005];

(d) the person has accepted, or is deemed to have accepted, a compensation offer issued under section 302A of that Act (compensation offer by procurator fiscal)[^f00006];

(e) the person has accepted, or is deemed to have accepted, a combined offer issued under section 302B of that Act (combined fixed penalty and compensation offer)[^f00007]; or

(f) a work order has been made against the person under section 303ZA of that Act (work orders)[^f00008].

PART 3 — Administration and Enforcement

Recovery of payments

5

(1) SEPA may recover as a civil debt any—

(a) fixed monetary penalty;

(b) variable monetary penalty;

(d) costs required to be paid under a costs recovery notice;

(e) late payment interest; or

(f) late payment penalty.

(2) The amount is recoverable as if it were payable under an extract registered decree arbitral bearing a warrant for execution issued by a sheriff of any sheriffdom.

Withdrawal of notice etc.

6

SEPA may by notice at any time—

(a) withdraw a fixed monetary penalty notice; or

(b) withdraw a variable monetary penalty notice, a non-compliance penalty notice or a costs recovery notice or reduce the amount specified in the notice.

Appeals

7

(1) This article applies to any appeal under this Order.

(2) An appeal is to the Scottish Land Court[^f00009].

(3) An appeal shall be in such form as may be prescribed from time to time by the Scottish Land Court.

(4) In any appeal where the commission of an offence is an issue requiring determination, SEPA must prove the offence according to the balance of probabilities.

(5) The Scottish Land Court may determine a case, or any part of a case, on the basis of written submissions and without a hearing where—

(a) both parties agree; or

(b) subject to paragraph (6), the Court considers that it can justly determine the matter without a hearing.

(6) Where paragraph (5)(b) applies, the Court must not determine the appeal without a hearing without first giving the parties notice of its intention to do so, and an opportunity to make written representations as to whether there should be a hearing.

Powers of the Court

8

(1) On an appeal under paragraph 8(1) of Schedule 1 (fixed monetary penalties) the Court may quash or confirm the penalty.

(2) On an appeal under paragraph 7(1) (variable monetary penalties), 10(1) (costs recovery notices) or 15(1) (non-compliance penalties) of Schedule 2, the Court may do one or more of the following:—

(a) quash, confirm or vary the penalty, requirement or notice (in whole or in part);

(b) take such steps as SEPA could take under this Order in relation to the act or omission giving rise to the penalty, requirement or notice; or

(3) On an appeal under paragraph 6(1) of Schedule 3 (certificates of non-compliance), the Court may quash or confirm the certificate.

(4) Subject to paragraphs (5) and (6), on an appeal under this Order the Scottish Land Court may not make an order in respect of expenses.

(5) The Court may make an order awarding expenses for the court fees paid or payable.

(6) The Court may make an order in respect of expenses where the Court considers that a party or their representatives has acted unreasonably in bringing, defending or conducting the proceedings.

Guidance

9

(1) Where power is conferred on SEPA by this Order to impose an enforcement measure in relation to an offence, SEPA must publish guidance about—

(a) how the offence is enforced;

(b) the sanctions (including criminal sanctions) to which a person who commits the offence may be liable;

(d) the circumstances in which SEPA is likely to take any such action;

(e) SEPA’s use of the enforcement measure; and

(f) in the case of guidance relating to a fixed monetary penalty or variable monetary penalty, the guidance must contain the relevant information provided for in paragraph (2) or (3) as the case may be.

(2) In the case of guidance relating to a fixed monetary penalty, the relevant information referred to in paragraph (1)(f) is information as to—

(a) the circumstances in which the penalty is likely to be imposed;

(b) the circumstances in which it may not be imposed;

(d) rights to make representations and rights of appeal.

(3) In the case of guidance relating to a variable monetary penalty, the relevant information referred to in paragraph (1)(f) is information as to—

(a) the circumstances in which the penalty is likely to be imposed;

(b) the circumstances in which it may not be imposed;

(c) the matters likely to be taken into account by SEPA in determining the amount of the penalty (including, where relevant, any discounts for voluntary reporting of non-compliance);

(d) rights to make representations and rights of appeal; and

(e) SEPA’s use of non-compliance penalties.

(4) SEPA must have regard to the guidance in exercising its functions.

(5) An “enforcement measure” means a fixed monetary penalty, variable monetary penalty or enforcement undertaking (and any references to the imposition of an enforcement measure include acceptance of an enforcement measure).

(6) In this article, any references to guidance include references to any guidance revised by virtue of section 31(8) of the Act.

Additional guidance

10

(1) SEPA must publish guidance about how SEPA will use costs recovery notices, including information as to—

(a) the circumstances in which they are likely to be used;

(b) the circumstances in which they may not be used;

(d) rights of appeal.

(2) SEPA must have regard to the guidance in exercising its functions.

Publication of enforcement action

11

(1) SEPA must from time to time publish information about—

(a) the number and type of cases in which fixed monetary penalties, variable monetary penalties, non-compliance penalties and costs recovery notices have been imposed; and

(b) the number and type of cases in which a VMP undertaking or enforcement undertaking has been accepted by SEPA.

(2) Where SEPA—

(a) imposes a fixed monetary penalty, variable monetary penalty or non-compliance penalty; or

(b) accepts an enforcement undertaking or VMP undertaking,

Payment of penalties etc to the Scottish Ministers

12

Where, by virtue of this Order, SEPA receive any sum in respect of—

(a) a fixed monetary penalty, a variable monetary penalty or a non-compliance penalty; or

(b) any interest or other financial penalty for late payment of such a penalty,

PART 4 — Consequential Amendments

Amendment of the Scottish Land Court Act 1993

13

In section 1(7) of the Scottish Land Court Act 1993[^f00010] (determination by Court of Session of point of law), after “enactment” insert “, or under the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015”.

Amendment of Fees Order

14

(1) The Scottish Land Court (Fees) Order 1996[^f00011] is amended as follows.

(2) At the end of article 3 insert “, subject to article 3A”.

(3) After article 3 insert—

(3A) The fees specified under heading (3)(b) of the Table of Fees in the Schedule (miscellaneous; applications not otherwise specified) are not payable in respect of appeals made under the Environmental Regulation (Enforcement Measures) (Scotland) Order2015.

SCHEDULE 1 — Fixed monetary penalties

Power to impose fixed monetary penalties

1

(1) SEPA may by notice impose a fixed monetary penalty on a person in relation to a relevant offence.

(2) Before doing so SEPA must be satisfied on the balance of probabilities that the person has committed the offence to which the penalty relates.

(3) A “fixed monetary penalty” is a requirement to pay to SEPA a penalty of the amount specified in paragraph 3.

Relevant offences for fixed monetary penalties

2

(1) For the purposes of this Schedule and section 20 of the Act (fixed monetary penalties), “relevant offence” means an offence specified in Schedule 4, if the table in that Schedule indicates that a fixed monetary penalty may be imposed.

(2) In relation to a relevant offence (“the principal offence”), the following offences are also relevant offences for those purposes—

(a) any attempt, conspiracy or incitement to commit the principal offence; and

(b) an offence under section 293(2) of the Criminal Procedure (Scotland) Act 1995 (statutory offences: art and part and aiding or abetting) as it applies in relation to the principal offence.

(3) For the purposes of sub-paragraph (1), the table in Schedule 4—

(a) indicates that, in relation to an offence, a fixed monetary penalty may be imposed if the second column of the table contains the word “YES” in the row relating to the offence; and

(b) does not so indicate if that column contains the word “NO” in the row relating to the offence.

Specified amount

3

(1) The amount of a fixed monetary penalty in relation to a relevant offence is—

(a) £300 if the fifth column of the table in Schedule 4 indicates that the level of penalty is “LOW” for that offence;

(b) £600 if the fifth column of the table in Schedule 4 indicates that the level of penalty is “MEDIUM” for that offence; or

(2) Where an offence is a relevant offence by virtue of paragraph 2(2), the amount of the fixed penalty is the same as the amount indicated in the table in Schedule 4 in relation to the principal offence (within the meaning of that paragraph).

Notice of intent

4

(1) Where SEPA proposes to impose a fixed monetary penalty on a person, it must serve on the person a notice of what is proposed (a “notice of intent”).

(2) The notice of intent must include information as to—

(a) the grounds for the proposal to impose the fixed monetary penalty;

(b) the amount of the penalty;

(d) the period within which written representations may be made.

Right to make written representations

5

(1) A person on whom a notice of intent is served may, within 28 days beginning with the day on which the notice was served, make written representations to SEPA in relation to the proposed imposition of the fixed monetary penalty.

(2) Written representations may in particular include representations that the person would not, by reason of any defence, be liable to be convicted of the offence to which the penalty relates.

(3) The period mentioned in sub-paragraph (1) may be extended by agreement in writing between SEPA and the person on whom the notice was served.

Decision to impose fixed monetary penalty

6

(1) SEPA must, after the end of the period for making representations, decide whether to impose a fixed monetary penalty.

(2) In making that decision, SEPA must have regard to any representations made in accordance with paragraph 5.

Final notice

7

(1) Where a decision is taken to impose a fixed monetary penalty, SEPA may do so by serving a final notice.

(2) A final notice must include information as to—

(a) the grounds for imposing the penalty;

(b) how payment may be made;

(d) late payment penalties;

(e) rights of appeal; and

(f) the consequences of non-payment.

(3) SEPA may not serve a final notice after a period of six months beginning with the day which is the final day on which written representations may be made in relation to the notice of intent.

(4) The period mentioned in sub-paragraph (3) may be extended by agreement in writing between SEPA and the person on whom the notice was served.

Appeals against a fixed monetary penalty

8

(1) A person on whom a fixed monetary penalty is imposed may appeal against the decision of SEPA to impose it.

(2) The appeal may be made on one or more of the following grounds:—

(a) the decision was based on an error of fact;

(b) the decision was wrong in law;

(d) any other reason.

(3) The grounds on which a person may appeal under this paragraph do not include the ground that SEPA failed to comply with guidance issued to it by the Lord Advocate under section 31(1) of the Act.

(4) An appeal under this paragraph must be made within the period of 28 days beginning with the day on which the final notice under paragraph 7(1) was served.

(5) Where an appeal is made under this paragraph, the fixed monetary penalty is suspended from the day on which the appeal is made until the day on which the appeal is determined or withdrawn.

Payment requirements

9

(1) Subject to sub-paragraph (2), the fixed monetary penalty must be paid within 56 days beginning with the day the final notice was served.

(2) In the case of an appeal, any penalty which falls to be paid (whether because the penalty was upheld or because the appeal was withdrawn) is payable within—

(a) the period referred to in sub-paragraph (1); or

(b) the period of 28 days beginning with the day the appeal is determined or withdrawn,

whichever ends later.

Late payment penalties

10

(1) If a person fails to pay a fixed monetary penalty in full by the payment date the amount payable is increased by 40% (the “late payment penalty”).

(2) “the payment date” means the date payment is due in accordance with paragraph 9(1) or, in the case of an appeal, paragraph 9(2).

Fixed monetary penalties: effect on criminal proceedings etc.

11

(1) Where a notice of intent relating to a fixed monetary penalty is served on a person in respect of an offence constituted by an act or omission, the period mentioned in sub-paragraph (2) is not to be counted in calculating any period within which criminal proceedings in respect of that offence constituted by that act or omission must be commenced.

(2) The period is that beginning with the day on which the notice of intent is served and ending with the day which is the final day on which written representations may be made in relation to the notice.

(3) Where a fixed monetary penalty is imposed on a person in respect of an offence constituted by an act or omission, no criminal proceedings may be commenced against the person in respect of that offence constituted by that act or omission.

(4) The reference in sub-paragraph (3) to criminal proceedings being commenced is to be read as if it includes a reference to—

(a) a warning being given by the procurator fiscal;

(b) a conditional offer (within the meaning of section 302 of the Criminal Procedure (Scotland) Act 1995[^f00012]) being sent;

(d) a combined offer under section 302B[^f00014] of that Act being sent; and

(e) a work order under section 302ZA[^f00015] of that Act being made.

SCHEDULE 2 — Variable monetary penalties etc.

CHAPTER 1 — Variable Monetary Penalties

Power to impose variable monetary penalties

1

(1) SEPA may by notice impose a variable monetary penalty on a person in relation to a relevant offence.

(2) Before doing so SEPA must be satisfied on the balance of probabilities that the person has committed the offence to which the penalty relates.

(3) A “variable monetary penalty” is, subject to sub-paragraph (4), a requirement to pay SEPA a penalty of such an amount as SEPA may in each case determine.

(4) SEPA may not impose a variable monetary penalty that exceeds the following maximum amounts—

(a) in the case mentioned in sub-paragraph (5), the maximum amount of the fine that may be imposed on summary conviction in such a case; and

(b) in any other case, £40,000.

(5) The case is one where the offence in respect of which the variable monetary penalty is imposed is—

(a) triable summarily (whether or not it is also triable on indictment); and

(b) is punishable on summary conviction by a fine (whether or not it is also punishable by a term of imprisonment).

Relevant offences for variable monetary penalties

2

(1) For the purposes of this Schedule and section 23 of the Act (variable monetary penalties), “relevant offence” means an offence specified in Schedule 4, if the table in that Schedule indicates that a variable monetary penalty may be imposed.

(2) In relation to a relevant offence (“the principal offence”), the following offences are also relevant offences for those purposes—

(a) any attempt, conspiracy or incitement to commit the principal offence; and

(b) an offence under section 293(2) of the Criminal Procedure (Scotland) Act 1995 (statutory offences: art and part and aiding or abetting) as it applies in relation to the principal offence.

(3) For the purposes of sub-paragraph (1), the table in Schedule 4—

(a) indicates that, in relation to an offence, a variable monetary penalty may be imposed if the third column of the table contains the word “YES” in the row relating to the offence; and

(b) does not so indicate if that column contains the word “NO” in the row relating to the offence.

Notice of intent

3

(1) Where SEPA proposes to impose a variable monetary penalty on a person, it must serve on the person a notice of what is proposed (a “notice of intent”).

(2) The notice of intent must include information as to—

(a) the proposed amount of the penalty;

(b) the grounds for the proposal to impose the variable monetary penalty;

(d) the period within which representations may be made; and

(e) the option to offer a VMP undertaking within the period for making written representations.

Right to make written representations

4

(1) A person on whom a notice of intent is served may, within 28 days beginning with the day on which the notice was served, make written representations to SEPA in relation to the proposed imposition of the variable monetary penalty.

(2) Written representations may in particular include representations that the person would not, by reason of any defence, be liable to be convicted of the offence to which the penalty relates.

(3) The period mentioned in sub-paragraph (1) may be extended by agreement in writing between SEPA and the person on whom the notice was served.

Decision to impose a variable monetary penalty

5

(1) SEPA must, after the end of the period for making written representations, decide whether to impose a variable monetary penalty and, if so, the amount of the penalty.

(2) In making that decision, SEPA must—

(a) have regard to any representations made in accordance with paragraph 4; and

(b) take into account any VMP undertaking accepted by it.

Final notice

6

(1) Where a decision is taken to impose a variable monetary penalty, SEPA may do so by serving a final notice.

(2) A final notice must include information as to—

(a) the amount of the penalty;

(b) the grounds for imposing the penalty;

(d) the period within which payment must be made;

(e) late payment interest;

(f) rights of appeal; and

(g) the consequences of non-payment.

(3) SEPA may not serve a final notice after a period of six months beginning with the day which is the final day on which written representations may be made in relation to the notice of intent.

(4) The period mentioned in sub-paragraph (3) may be extended by agreement in writing between SEPA and the person on whom the notice was served.

Appeals against variable monetary penalties

7

(1) A person on whom a variable monetary penalty is imposed may appeal against the decision as to the imposition or amount of the penalty.

(2) An appeal under this paragraph may be made on one or more of the following grounds:—

(a) the decision was based on an error of fact;

(b) the decision was wrong in law;

(d) the decision was unreasonable for any other reason; or

(e) any other reason.

(3) The grounds on which a person may appeal under this paragraph do not include the ground that SEPA failed to comply with guidance issued to it by the Lord Advocate under section 31(1) of the Act.

(4) An appeal under this paragraph must be made within the period of 28 days beginning with the day on which the final notice under paragraph 6(1) is served.

(5) Where an appeal is made under this paragraph, the variable monetary penalty is suspended from the day on which the appeal is made until the day on which the appeal is determined or withdrawn.

Payment requirements for variable monetary penalties

8

(1) Subject to paragraph (2), the variable monetary penalty must be paid within 56 days beginning with the day the final notice was served or such longer period as SEPA may specify in the final notice.

(2) In the case of an appeal, any penalty which falls to be paid (whether because the penalty was upheld or because the appeal was withdrawn) is payable within—

(a) the period referred to in sub-paragraph (1);

(b) the period of 28 days beginning with the day the appeal is determined or withdrawn; or

whichever ends later.

Costs recovery notices

9

(1) SEPA may serve a notice on a person on whom a variable monetary penalty has been imposed, requiring that person to pay the costs incurred by SEPA in relation to the imposition of the penalty up to the time of its imposition (a “costs recovery notice”) .

(2) In this paragraph, “costs” include in particular—

(a) investigation costs (including the costs of monitoring the environment to determine the harm caused by the relevant offence to which the penalty relates);

(b) administration costs; and

(3) The costs recovery notice must specify—

(a) the amount required to be paid;

(b) how payment may be made;

(d) that SEPA may be required to provide a detailed breakdown of the amount (unless such a breakdown is provided by SEPA with the notice itself);

(e) the rights of appeal; and

(f) consequences of non-payment.

(4) The person on whom the notice is served may require SEPA to provide a detailed breakdown of the amount required to be paid (unless such a breakdown has already been provided).

(5) SEPA must take such steps as are reasonable to ensure that the detailed breakdown is sent to the person requesting it within a period of 21 days from the date of the request.

Appeals against costs recovery notices

10

(1) The person required to pay costs may appeal against—

(a) the decision of SEPA to impose the requirement; and

(b) the decision of SEPA as to the amount of the costs (including that some or all of the costs were unnecessarily incurred).

(2) An appeal under this paragraph must be made within the period of 28 days beginning with—

(a) the day on which the costs recovery notice under paragraph 9(1) is served; or

(b) where a person requests a detailed breakdown of the costs recovery notice, the day on which that breakdown is sent by SEPA.

(3) Where an appeal is made under this paragraph, the costs recovery notice is suspended from the day on which the appeal is made until the day on which the appeal is determined or withdrawn.

Payment requirements for costs recovery notices

11

(1) Subject to sub-paragraph (2), the amount required to be paid under the costs recovery notice must be paid within 56 days beginning with the day the notice was served or such longer period as SEPA may specify in the notice.

(2) In the case of an appeal, any costs which fall to be paid (whether because the penalty was upheld or because the appeal was withdrawn) are payable within—

(a) the period referred to in sub-paragraph (1);

(b) the period of 28 days beginning with the day the appeal is determined or withdrawn; or

whichever ends later.

CHAPTER 2 — VMP Undertakings

VMP undertakings

12

(1) A person on whom a notice of intent to issue a variable monetary penalty is served may offer a VMP undertaking, which SEPA may accept or reject.

(2) A “VMP undertaking” is an undertaking by the person on whom the notice of intent is served as to action to be taken by that person, within such period as may be specified in the undertaking, for all or any of the following purposes—

(a) to secure that the position is, so far as possible, restored to what it would have been if the offence had not been committed;

(b) to benefit the environment to the extent that the commission of the offence has harmed the environment;

(3) A person offering a VMP undertaking must do so in writing within the period for making written representations.

(4) A VMP undertaking must include—

(a) information as to—

(i) the notice of intent to which the undertaking relates;

(ii) the act or omission giving rise to the relevant offence to which the notice of intent relates;

(iii) the action to be taken under the undertaking;

(iv) the period within which that action must be taken; and

(v) how and when the person is considered to have fulfilled the undertaking; and

(b) a statement that the undertaking is made in accordance with this Schedule.

(5) A VMP undertaking accepted by SEPA may be varied (including by extending the period within which the action must be taken) if both parties agree in writing.

Inaccurate, incomplete and misleading information

13

(1) SEPA may serve a notice on a person from whom SEPA has accepted a VMP undertaking, requiring that person to provide, within such period as SEPA may consider reasonable, sufficient information to determine whether the VMP undertaking has been complied with.

(2) A person who fails to provide such information, or provides inaccurate, misleading or incomplete information in relation to a VMP undertaking may be regarded by SEPA as not having complied with the undertaking.

Non-compliance penalties

14

(1) SEPA may impose a non-compliance penalty on a person who fails to comply with a VMP undertaking which is accepted from the person.

(2) A “non-compliance penalty” is a requirement to pay SEPA an amount calculated in accordance with sub-paragraph (3).

(3) The amount of the non-compliance penalty is to be determined by SEPA and, subject to sub-paragraph (4), must be—

(a) an amount equivalent to 140% of the variable monetary penalty which SEPA would have imposed by final notice had the undertaking not been accepted; or

(b) a lesser amount, where SEPA considers there are exceptional circumstances justifying it.

(4) The maximum amount of the non-compliance penalty that may be imposed in any case is the same as the maximum amount of a variable monetary penalty which would apply in that case in accordance with paragraph 1(4).

(5) Where a decision is taken to impose a non-compliance penalty, SEPA may do so by serving a non-compliance penalty notice.

(6) A non-compliance penalty notice must include information as to—

(a) the grounds for imposing the non-compliance penalty;

(b) the amount of the penalty;

(d) the period within which payment must be made;

(e) late payment interest;

(f) rights of appeal; and

(g) the consequences of non-payment.

Appeals against non-compliance penalties

15

(1) A person on whom a non-compliance penalty is imposed may appeal against the notice.

(2) An appeal under this paragraph may be made on one or more of the following grounds:—

(a) the decision to serve the notice was based on an error of fact;

(b) the decision was wrong in law;

(d) any other reason.

(3) An appeal under this paragraph must be made within the period of 28 days beginning with the day on which the non-compliance penalty notice under paragraph 14 is served.

(4) Where an appeal is made under this paragraph, the non-compliance penalty is suspended from the day on which the appeal is made until the day on which the appeal is determined or withdrawn.

Payment requirements for non-compliance penalties

16

(1) Subject to sub-paragraph (2), the non-compliance penalty must be paid within 56 days beginning with the day the non-compliance penalty notice was served or such longer period as SEPA may specify in the notice.

(2) In the case of an appeal, any penalty which falls to be paid (whether because the penalty was upheld or because the appeal was withdrawn) is payable within—

(a) the period referred to in sub-paragraph (1);

(b) the period of 28 days beginning with the day the appeal is determined or withdrawn; or

whichever ends later.

CHAPTER 3 — Effect on criminal proceedings etc. and late payment interest

Variable monetary penalties: effect on criminal proceedings etc.

17

(1) Sub-paragraph (2) applies where—

(a) a variable monetary penalty is imposed on a person;

(b) a VMP undertaking is accepted from a person; or

(2) No criminal proceedings may be commenced against the person for an offence constituted by an act or omission if the variable monetary penalty or, as the case may be, the VMP undertaking related to that offence constituted by that act or omission.

(3) Where a notice of intent relating to a variable monetary penalty is served on a person in respect of an offence constituted by an act or omission, the period mentioned in sub-paragraph (4) is not to be counted in calculating any period within which criminal proceedings in respect of that offence constituted by that act or omission must be commenced.

(4) The period is that beginning with the day on which the notice of intent is served and ending with the day which is the final day on which written representations may be made in relation to the notice.

(5) The reference in sub-paragraph (2) to criminal proceedings being commenced includes a reference to—

(a) a warning being given by the procurator fiscal;

(b) a conditional offer (within the meaning of section 302 of the Criminal Procedure (Scotland) Act 1995[^f00016]) being sent;

(d) a combined offer under section 302B[^f00018] of that Act being sent; and

(e) a work order under section 302ZA[^f00019] of that Act being made.

Late payment interest

18

(1) If a person fails to pay in full—

(a) a variable monetary penalty;

(b) a non-compliance penalty; or

by the payment date, interest is payable on the amount outstanding (“late payment interest”) in accordance with the following sub-paragraphs.

(2) Interest falls to be paid at a rate of 8 per cent per annum calculated on a daily basis for the period beginning with the day after the payment date and ending on the day payment is made or recovered.

(3) The total amount of interest payable is not to exceed the amount of the variable monetary penalty, non-compliance penalty or costs recovery notice to which the interest relates.

(4) In this article, “payment date” means—

(a) in relation to a variable monetary penalty, the date payment is due in accordance with paragraph 8(1) or, in the case of an appeal, 8(2);

(b) in relation to a costs recovery notice, the date payment is due in accordance with paragraph 11(1) or, in the case of an appeal, 11(2); and

(c) in relation to a non-compliance penalty, the date payment is due in accordance with paragraph 16(1) or, in the case of an appeal, 16(2).

SCHEDULE 3 — Enforcement undertakings

Enforcement undertakings

1

(1) Where a person offers SEPA an enforcement undertaking, SEPA may accept it in accordance with sub-paragraph (2) or reject it.

(2) SEPA may only accept an enforcement undertaking from a person where SEPA has reasonable grounds to suspect that the person has committed a relevant offence.

(3) An “enforcement undertaking” is an undertaking to take such action of a type mentioned in sub-paragraph (4) and specified in the undertaking within such period as may be so specified.

(4) The types of action are—

(a) action to secure that the offence does not continue or recur;

(b) action to secure that the position is, so far as possible, restored to what it would have been if the offence had not been committed; and

(c) any other action that will secure benefits or improvements to the environment (including the payment of a sum of money to a third party).

(5) In this Schedule, references to taking action specified in an enforcement undertaking include references to refraining from taking such action.

Relevant offences for enforcement undertakings

2

(1) For the purposes of this Schedule and section 27 of the Act (enforcement undertakings), “relevant offence” means an offence specified in Schedule 4, if the table in that Schedule indicates that an enforcement undertaking may be accepted.

(2) In relation to a relevant offence (“the principal offence”), the following offences are also relevant offences for those purposes—

(a) any attempt, conspiracy or incitement to commit the principal offence; and

(b) an offence under section 293(2) of the Criminal Procedure (Scotland) Act 1995 (statutory offences: art and part and aiding or abetting) as it applies in relation to the principal offence.

(3) For the purposes of sub-paragraph (1), the table in Schedule 4—

(a) indicates that, in relation to an offence, an enforcement undertaking may be accepted, if the fourth column of the table contains the word “YES” in the row relating to the offence; and

(b) does not so indicate if that column contains the word “NO” in the row relating to the offence.

Contents of an enforcement undertaking

3

(1) An enforcement undertaking must be made in writing.

(2) An enforcement undertaking must include—

(a) information as to—

(i) the act or omission giving rise to the relevant offence to which the undertaking relates;

(ii) the action to be taken under the undertaking;

(iii) the period within which that action must be taken;

(iv) how and when the person is considered to have fulfilled the undertaking; and

(b) a statement that the undertaking is made in accordance with this Schedule.

(3) An enforcement undertaking accepted by SEPA may be varied (including by extending the period within which the action must be taken) if both parties agree in writing.

Consequences of an enforcement undertaking and certificates of non-compliance

4

(1) If SEPA accepts an enforcement undertaking and has not issued a certificate of non-compliance in relation to it—

(a) no criminal proceedings may be commenced against the person from whom the enforcement undertaking is accepted in respect of an offence constituted by an act or omission if the undertaking relates to that offence constituted by that act or omission; and

(b) SEPA may not impose on that person a fixed monetary penalty or variable monetary penalty in respect of the act or omission.

(2) If SEPA is satisfied that an enforcement undertaking, or any part of it, has not been complied with it may issue a certificate to that effect (a “certificate of non-compliance”).

(3) For the purpose of enabling criminal proceedings in respect of an act or omission in relation to which SEPA has accepted an enforcement undertaking to be commenced against a person who has not complied with the undertaking or any part of it, the period mentioned in sub-paragraph (4) is not to be counted in calculating any period within which such proceedings must be commenced.

(4) The period is that beginning with the day on which the enforcement undertaking is accepted and ending with—

(a) the day on which SEPA issues a certificate of non-compliance; or

(b) where an appeal against such a certificate is taken, the day on which the appeal is finally determined.

(5) SEPA may revoke a certificate of non-compliance by notice at any time.

(6) Where SEPA revokes a certificate of non-compliance, this paragraph applies as if the certificate had not been issued.

(7) The reference in subparagraph (1)(a) to criminal proceedings being commenced is to be read as if it included a reference to—

(a) a warning being given by the procurator fiscal;

(b) a conditional offer (within the meaning of section 302 of the Criminal Procedure (Scotland) Act 1995) being sent;

(d) a combined offer under section 302B of that Act being sent; and

(e) a work order under section 302ZA of that Act being made.

Inaccurate, incomplete or misleading information

5

(1) SEPA may serve a notice on a person from whom SEPA has accepted an enforcement undertaking requiring that person to provide, within such period as SEPA may consider reasonable, sufficient information to determine whether the undertaking has been complied with.

(2) A person who fails to provide such information, or provides inaccurate, misleading or incomplete information in relation to an enforcement undertaking, is to be regarded as not having complied with the undertaking.

Appeal against a certificate of non-compliance

6

(1) A person who is issued a certificate of non-compliance may appeal against it.

(2) An appeal under this paragraph may be made on one or more of the following grounds:—

(a) the decision was based on an error of fact;

(b) the decision was wrong in law;

(d) any other reason.

(3) An appeal under this paragraph must be made within the period of 28 days beginning with the day on which the certificate of non-compliance is issued.

(4) Where an appeal is made under this paragraph, the certificate of non-compliance has no effect from the day on which the appeal is made until the day on which the appeal is determined or withdrawn.

SCHEDULE 4 — Relevant offences and fixed penalty amounts

In the following table—

“FMP” is a fixed monetary penalty;

“VMP” is a variable monetary penalty;

“EU” is an enforcement undertaking; and

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