Commentary on Provisions Household waste Section 15: Household waste requirements
61.Section 15 of the Act inserts five sections into the Environmental Protection Act 1990 (“the 1990 Act”), creating new enforcement provisions relating to the collection of household waste. Local authorities in Scotland are designated as waste collection authorities for the purposes of the 1990 Act: their principal function in that capacity is to arrange for the collection of household waste in their areas and, if requested by the occupier of premises in their areas, to arrange for the collection of any commercial waste from those premises.
62.Section 46 of the 1990 Act addresses receptacles for household waste, placing certain obligations on householders. Section 46(1) provides that where a local authority has a duty to arrange for the collection of any premises, it may require the occupier to place the waste for collection in receptacles of a kind and a number specified. Section 46(3) provides that the local authority may, as respects the provision of the receptacles, require the occupier to provide them. Section 46(4) provides that the local authority may, by notice under section 46(1), make provision with respect to, among other things, the substances or articles which may or may not be put into the receptacles and the steps to be taken by occupiers of premises to facilitate the collection of waste from the receptacles. Section 46(6) then makes it an offence for a person to fail, without reasonable excuse, to comply with any requirements imposed by a waste collection authority in Scotland under the section.
63.New section 46ZA, as inserted by section 15 of the Act, creates a new civil sanctions regime to provide an alternative means of enforcement for section 46 of the 1990 Act.
64.Section 46ZA(1) gives power to authorised officers of waste collection authorities (i.e. local authorities) to give a written warning to a person if satisfied that the person has failed without reasonable excuse to comply with a requirement imposed by the authority under section 46(1), (3)(c) or (d) or (4) of the 1990 Act (a “section 46 requirement”), and that this failure either has caused or is likely to cause a nuisance or has been or is likely to be detrimental to any amenities of the local area. “Nuisance” here would take the common law meaning (that is an unreasonable interference with the comfort of others). The authorised officer must be satisfied about these matters on the balance of probabilities – the usual civil standard of proof. Section 46ZA(2)(a) sets out the mandatory content of a written warning under subsection (1) and section 46ZA(2)(b) provides that it may contain such other provision as the authority considers appropriate.
65.Section 46ZA(3) to (7) allows an authorised officer of a waste collection authority who has already given a written warning to a person to escalate the matter to the imposition of a civil penalty charge.
66.Subsection (3) allows a civil penalty charge to be imposed where the officer is satisfied that the person continued to fail to comply with the section 46 requirement identified in the warning after the end of the period for compliance specified in the warning.
67.Subsection (4) provides that a further civil penalty charge may be imposed where the officer is satisfied that the person’s failure to comply with the section 46 requirement is still ongoing during the period of 12 months from the written warning. For example, if a person is in breach of section 46(1) because they have lost or damaged the waste receptacle provided by the waste collection authority and failed to obtain or provide another suitable one, their ongoing refusal to do so would be a continuous breach which would allow a further civil penalty charge to be imposed under this subsection. Under subsection (5), however, a further civil penalty charge may not be required where there is an appeal pending against the decision to issue a civil penalty charge under subsection (3).
68.Subsection (6)(a)(i) provides that a civil penalty charge may be imposed where the person has again failed without reasonable excuse to comply with the section 46 requirement identified in the warning, before the end of a period of 12 months – this failure either must have caused or be likely to cause a nuisance, or to have been or likely to be detrimental to any amenities of the local area (the same criteria as in section 46ZA(1)(b)). This allows a civil penalty charge to be imposed for a repeated breach (in contrast to an ongoing breach as covered by subsection (4)).
69.Subsection (6)(a)(ii) provides that a civil penalty charge may be imposed for failure without reasonable excuse to comply, before the end of a period of 12 months, with a factually similar section 46 requirement – this failure either must have caused or be likely to cause a nuisance, or to have been or likely to be detrimental to any amenities of the local area (the same criteria as in section 46ZA(1)(b)).
70.Section 46ZA(7) clarifies that an authorised officer may require a person to pay a civil penalty charge under subsection (4) or (6) each time that the authorised officer is satisfied of the matters mentioned in the subsection: so multiple charges can be given under those provisions if the relevant criteria are fulfilled.
71.Section 46ZA(8) limits the operation of the civil penalty charge regime so that a requirement to pay a charge cannot be imposed where a person has already been given a fixed penalty notice under the new section 46ZD(2) (as also inserted by section 15 of the Act) in relation to the same factual circumstances. In addition a requirement to pay a civil penalty charge cannot be imposed on a person who has already been prosecuted under section 46(6) in relation to the same circumstances. So as a means of enforcement, a civil penalty charge here is barred if more onerous methods of enforcement have already been attempted.
72.An authorised officer imposing a civil penalty charge under any of subsections (3), (4) or (6) must also act in accordance with section 46ZB on prior notices (section 46ZA(9)).
73.Section 46ZA(10) allows a waste collection authority to pursue the debt from a penalty charge notice as if it was an extract registered decree arbitral bearing a warrant for execution issued by the sheriff for any sheriffdom, meaning it can be enforced by way of diligence – i.e. as if a court action had been won in respect of the money, and without the necessity of any further court proceedings.
74.Section 46ZA(11) sets out key definitions for the purposes of the new enforcement measures in the 1990 Act.
75.Section 46ZB sets out an initial step that an authorised officer of a waste collection authority must take before requiring a person to pay a civil penalty charge under section 46ZA: they must serve on the person notice of intention to do so, or a “notice of intent”, under section 46ZB(1) containing the information set out in section 46ZB(2), and a person on whom a notice of intent is served may under section 46ZB(3) make representations to the authorised officer as to why payment of a civil penalty charge should not be required.
76.In addition, section 46ZB(4) provides that an authorised officer must serve a “final notice” on a person in order to require the person to pay a civil penalty charge under section 46ZA. A final notice may not be served until 28 days after the notice of intent was served. Section 46ZB(6) provides that an authorised officer must consider any representations made by the person under subsection (3) before serving the final notice, and section 46ZB(7) sets out the mandatory content of the notice.
77.Section 46ZC gives a power to the Scottish Ministers to make regulations setting out various aspects of the civil penalty charge scheme, including the amount of the charge, the periods for payment, and other procedural matters such as appeals. Regulations under section 46ZC(1) are made subject to the affirmative Parliamentary procedure by section 15(3) which inserts reference to them into section 160A(2) of the 1990 Act, which lists regulations in that Act subject to the affirmative procedure.
78.Section 46ZD creates a new fixed penalty regime for the offence under section 46(6) of the 1990 Act. Where it appears to an authorised officer of a waste collection authority that a person has committed an offence under section 46(6) of the 1990 Act, a notice may be given offering the person the opportunity of discharging potential criminal liability for the offence by payment of a fixed penalty to the waste collection authority (section 46ZD(1) and (2)).
79.Section 46ZD(3) has the effect that where a person is given such a notice under subsection (2), the person has 14 days to pay the penalty. No criminal proceedings may be instituted for the offence before the end of that period, and if the penalty is paid then the person cannot be convicted of the offence under section 46 of the 1990 Act.
80.Section 46ZD(4) places the fixed penalty regime in the context of the other enforcement measures for breach of section 46 of the 1990 Act. It provides that where a person has already been given a final notice in relation to a civil penalty charge under section 46ZB (as inserted by section 15 of the Act) and has paid any subsequent charge in full, no fixed penalty notice under this section may be given to that person in relation to the same circumstances. In addition, that person cannot be prosecuted under section 46(6) of the 1990 Act in relation to the same circumstances. The effect of the section is to prevent those two other means of enforcing section 46 requirements as long as a civil penalty charge under section 46ZA has been paid in full.
81.Section 46ZD(5) sets out the mandatory content of a fixed penalty notice, including the factual circumstances alleged to constitute the offence, and information on the 14-day period for payment and the amount of the fixed penalty.
82.Section 46ZD(6) gives a regulation-making power to the Scottish Ministers to set the amount of fixed penalty payable under this section and the form of fixed penalty notice. The maximum penalty possible is to be level 2 on the standard scale for punishment fines (currently £500 – see section 225 of the Criminal Procedure (Scotland) Act 1995). Regulations under section 46ZD(6) are made subject to the affirmative Parliamentary procedure by virtue of section 15(3) of the Act which inserts reference to them into section 160A(2) of the 1990 Act, which lists regulations in that Act subject to the affirmative procedure.
83.Section 46ZD(7) provides that an authorised officer may require an occupier of domestic property to give their name, address and date of birth if the officer proposes to give the occupier a fixed penalty notice: under section 46ZD(8) and (9), failure to comply with such a requirement or giving false or inaccurate details is an offence, punishable by a fine up to level 3 on the standard scale (currently £1,000 – see section 225 of the Criminal Procedure (Scotland) Act 1995).
84.Section 46ZD(10) sets out an evidential rule for court proceedings that a certificate which purports to be signed on behalf of the person having responsibility for the financial affairs of the waste collection authority, and which states that payment of a fixed penalty was or was not received by a date specified in the certificate, is evidence of the facts stated on its face. So for instance if a person was prosecuted for a breach of the section 46(6) offence and took the position that they couldn’t be convicted as they had already paid a fixed penalty in respect of the same conduct, then they could rely on this evidential rule to support their position.
85.Section 46ZE(1) requires the Scottish Ministers to issue guidance about how sections 46ZA to 46ZD operate. Waste collection authorities (and their authorised officers) must have regard to ministerial guidance issued under this section (under section 46ZE(3)) and waste collection authorities must be consulted in its preparation (under section 46ZE(2)).