Commentary on Provisions Fly-tipping offences and removal of waste Section 12: Removal of unlawfully deposited waste
39.Section 12 of the Act amends section 59 of the Environmental Protection Act 1990 which allows a waste regulation authority or waste collection authority to serve notice requiring an occupier of land to remove waste which has been unlawfully deposited on that land.
40.New section 59(1A) provides that such a notice may only be issued if the authority is satisfied that the occupier deposited or knowingly caused or permitted the deposit of the waste. The civil test of being satisfied on the balance of probabilities will apply.
41.Section 12 further amends section 59(2), (3) and (4) so that appeals against notices are made to the Scottish Ministers (consistent with the approach taken in relation to a number of other environmental appeals) rather than to the sheriff court, and allows the Scottish Ministers to make further provision by regulations about such appeals under section 59(10). Adding reference to section 59(2) to section 114(2)(a)(iii) of the Environment Act 1995, as set out in section 12(2) of the Act, means that the function of determining appeals may be delegated by the Scottish Ministers.
42.Section 59(11) and (12) allows the Scottish Ministers to issue guidance for waste regulation authorities and waste collection authorities about the operation of section 59, and requires authorities to have regard to any such guidance.