Commentary on Provisions Household waste Section 14: Householder’s duty of care
46.Section 14 of the Act makes amendments to the Environmental Protection Act 1990 (“the 1990 Act”). Section 34(2) of the 1990 Act creates a duty of care on householders as respects the household waste produced on their property – that the occupier of a domestic property take reasonable steps to secure that any transfer of waste is to an authorised person, or to a person for authorised transport purposes (e.g. a householder transferring household waste to someone offering unrealistically cheap waste services, without making efforts to ensure that they are a registered waste carrier, would be in breach of this duty).
47.Section 14(2)(a) to (c) of the Act restate the duty of care on householders and clarify that it is separate from the various duties related to the production, storage, collection, transport and disposal of waste by commercial actors under section 34(1) of the 1990 Act.
48.Section 14(2)(d) of the Act makes failure to comply with the householder’s duty of care in section 34(2) of the 1990 Act a criminal offence, inserting this provision into the list in section 34(6): this makes equivalent provision for Scotland as already exists in England and Wales.
49.Section 14(2)(e) of the Act also adds the householder’s duty of care in section 34(2) of the 1990 Act to the list of subjects for the Ministerial code of practice in section 34(7).
50.Section 14(3) of the Act then creates a new fixed penalty regime for the new offence under section 34(6) of the 1990 Act, inserting a new section 34ZC into the 1990 Act. Where it appears to a constable or an authorised officer of a local authority or Loch Lomond and The Trossachs National Park Authority that a person has failed without reasonable excuse to comply with the householder’s duty of care, a notice may be given offering the person the opportunity of discharging potential criminal liability for the offence by payment of a fixed penalty (section 34ZC(1) and (2)). Subsection (6) then deals with the legal effect of the notice. For instance a fixed penalty notice could be given to a householder for a breach of the duty of care in relation to fly-tipped waste which is traced back to that householder.
51.Section 34ZC(3) prohibits the giving of a fixed penalty notice under this section where one has already been given to the person in relation to the same circumstances, or a penalty or enforcement undertaking has already been imposed by SEPA in relation to the same circumstances using its powers under the Regulatory Reform (Scotland) Act 2014.
52.Section 34ZC(4) provides that where a constable gives a fixed penalty notice to a person under this section, they must at the same time give a copy of the notice to the local authority in whose area the failure to comply with the householder’s duty of care in section 34(2) of the 1990 Act took place.
53.Section 34ZC(5) provides that where it appears to an authorised officer giving a fixed penalty notice under this section to a person that the failure to comply with the householder’s duty of care in section 34(2) took place in a different local authority’s area, the officer must at the same time give that other local authority a copy of the notice. As with section 34ZC(4), the purpose of this provision is to prevent the same factual circumstances attracting multiple notices.
54.Section 34ZC(6) 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 34(6) of the 1990 Act.
55.Section 34ZC(7) 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.
56.Section 34ZC(8) provides that the fixed penalty payable under this section is £200. This amount may be amended by the Scottish Ministers in regulations under section 34ZC(9), but 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 34ZC(9) are subject to the negative Parliamentary procedure by virtue of section 160A of the 1990 Act.
57.Section 34ZC(10) provides that a constable or 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 34ZC(11) and (12), 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).
58.Section 34ZC(13) 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 authority to whom the fixed penalty is payable (e.g. the Chief Finance Officer of a local 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 those facts for the purpose of those court proceedings. So for instance if a person was prosecuted for a breach of the duty of care 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.
59.Section 34ZC(14) sets out to whom a fixed penalty under this section must be paid, depending on what kind of authorised officer issued it.
60.Section 34ZC(15) defines an “authorised officer” for this section, with section 34ZC(16) giving the Scottish Ministers a regulation-making power (subject to negative procedure) to add to that definition, and to apply this section with modifications as a consequence of adding to the definition.