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

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

Type Scottish-Statutory-Instrument

Publication 2015-11-11

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

articles 1

Reform history JSON API PDF

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

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(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

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(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

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(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

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(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

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(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

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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

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(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

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(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

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(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

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(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.

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