Enforcement of requirement for heat network consent
Section 37: Meaning of “enforcement authority”
89.This section defines “enforcement authority” as the Scottish Ministers or such other person as the Scottish Ministers designate by regulations.
Section 38: Power to require information about activities on land
90.If it appears to the enforcement authority that a heat network is being, or has been constructed or operated on land without a heat network consent, or there has been a failure to comply with a condition or limitation of a consent, the enforcement authority may issue a contravention notice to the owner or occupier of the land or to other specified persons (subsections (1) and (2)).
91.A contravention notice may require the person to provide information in relation to operations or activities being carried out on the land, the use of the land and any matter relating to conditions to which a heat network consent is subject (subsection (3)).
Section 39: Enforcement notice
92.Subsection (1) specifies that where there is a requirement for a heat network consent (see section 18(1)) and it appears to the enforcement authority that the heat network is being (or has been) constructed or operated without a heat network consent, the enforcement authority may issue an enforcement notice. If the heat network is being (or has been) constructed or operated by a person on their own behalf without the person holding a heat network consent, the notice may be given to that person. If the heat network is being (or has been) constructed or operated by a person on behalf of another person without the other person holding a heat network consent, the notice may be given to either of those persons, that is, the principal or the contractor.
93.Subsection (2) also allows the enforcement authority to issue an enforcement notice to a person holding a heat network consent where it is believed that a condition or limitation of the consent is not being complied with.
94.An enforcement notice must specify the date on which it is to take effect (being not less than 28 days after the date on which the notice is given), set out the reasons why it has been given, and specify the steps the person is required to take and/or the activities the enforcement authority requires to cease in order to achieve (wholly or partly) either of the purposes mentioned in subsection (5) (subsections (3) and (4)). Subsection (5) lists the purposes referred to in subsection (4), namely the person’s compliance with section 18(1) or where the person’s failure to comply with section 18(1) has affected the condition of any land, the restoration of that land. The enforcement notice may in particular require the alteration or removal of buildings or works, the carrying out of building or other operations, or prohibit certain activities (subsection (6)). It should specify the period for compliance and may require different steps to be taken over different periods or different activities that are required to cease (subsection (7)). Subsection (8) defines “enforcement notice”.
Section 40: Withdrawal or variation of enforcement notice
95.This section makes provision for the enforcement authority to withdraw an enforcement notice, or waive or relax any requirement of such a notice, whether or not the notice has taken effect (subsections (1) and (2)). If the enforcement authority decides to withdraw, waive or relax a requirement of notice, it must immediately inform each person to whom notice was given (subsection (3)). The withdrawal of an enforcement notice will not prevent the authority from issuing another one (subsection (4)).
Section 41: Appeals against enforcement notice
96.Section 41 allows the Scottish Ministers by regulations to make provision for or about appeals against enforcement notices. The regulations may include provision on those matters listed in subsection (2). Regulations made under this section may modify any enactment (subsection (3)).
Section 42: Offence of failing to comply with enforcement notice
97.Failure to comply with an enforcement notice within the period for compliance is an offence (subsection (1)). A person who commits an offence under subsection (1) can be prosecuted either on summary complaint or on indictment and is liable to a fine, which on summary conviction may not exceed the statutory maximum (£10,000). However, it is a defence for a person charged with such an offence to show that they did everything they could reasonably be expected to do to comply with the notice or they had a reasonable excuse for failing to ensure that the step concerned was taken or for failing to ensure the cessation of the carrying on the activity concerned (subsection (3)). The period for compliance is the period specified in the notice in accordance with section 39(7), or such other extended period as the enforcement authority may allow (subsection (4)).
Section 43: Execution and cost of works required by enforcement notice
98.If at any time after the end of a period for compliance of an enforcement notice, any step required by the notice has not been taken, the enforcement authority may enter the land to take the necessary steps and may recover the expenses reasonably incurred by them in doing so from the person to whom the notice was given (subsections (1) and (2)). Subsection (3) provides that any expenses recovered under subsection (2) may include appropriate administrative expenses.
99.When taking steps under subsection (2), the enforcement authority may sell any materials removed from the land unless they are claimed by the owner within 3 days of removal (subsection (4)). The enforcement authority must pay the proceeds of any sale, less recoverable expenses, to the owner (subsection (5)).
100.Subsection (6) creates an offence if a person, without reasonable excuse, intentionally obstructs the enforcement authority in exercising its powers under subsection (2). A person who commits such an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale (subsection (7)).
