Heat Networks (Scotland) Act 2021

Enforcement of requirement for heat network consent

37 Meaning of “enforcement authority”

In this Part, the “enforcement authority” means—

(a) the Scottish Ministers, or

(b) such other person as the Scottish Ministers by regulations designate as the enforcement authority for the purposes of this Part.

38 Power to require information about activities on land

(1) This section applies where—

(a) section 18(1) applies in relation to a heat network and it appears to the enforcement authority that the heat network—

(i) is being constructed (or has been constructed) on land without a heat network consent in relation to the heat network,

(ii) is being operated (or has been operated) on land without a heat network consent in relation to the heat network, or

(b) it appears to the enforcement authority that there has been a failure to comply with a condition or limitation to which a heat network consent in relation to a heat network situated on land is subject.

(2) The enforcement authority may give notice outlining its concerns (a “contravention notice”) to any person who—

(a) is the owner or occupier of the land or has any other interest in it, or

(b) is carrying out operations on the land or is using it for any purpose.

(3) A contravention notice may require the person to whom it is given to give such information as may be specified in the notice in relation to—

(a) any operations being carried out on the land, any use of the land and any other activities being carried out on the land,

(b) any matter relating to conditions or limitations to which a heat network consent in relation to a heat network situated on the land is subject.

(4) In this section, references to—

(a) the construction or operation of a heat network on land include references to the construction or operation of a heat network under or over the land,

(b) a heat network situated on land include references to a heat network situated under or over the land,

(c) operations or activities on land include references to operations or activities under or over the land.

39 Enforcement notice

(1) Where section 18(1) applies in relation to a heat network and it appears to the enforcement authority that the heat network is being (or has been) constructed or operated—

(a) by a person on their own behalf without the person holding a heat network consent in relation to the construction or (as the case may be) operation of the heat network, the enforcement authority may give a written notice to the person,

(b) by a person on behalf of another person without the other person holding a heat network consent in relation to the construction or (as the case may be) operation of the heat network, the enforcement authority may give a written notice to the person or to the other person.

(2) Where it appears to the enforcement authority that there has been a failure by the person holding a heat network consent to comply (or to secure compliance) with a condition or limitation to which the consent is subject, the enforcement authority may give a written notice to the person.

(3) An enforcement notice must specify the date on which it is to take effect which must be no less than 28 days after the date on which the notice is given.

(4) An enforcement notice must—

(a) specify the reasons why the notice has been given, and

(b) specify (either or both)—

(i) the steps that the enforcement authority requires the person to whom the notice is given (or another person acting on behalf of that person) to take,

(ii) the activities that the enforcement authority requires to cease,

in order to achieve (wholly or partly) either of the purposes mentioned in subsection (5).

(5) The purposes are—

(a) the person’s compliance with section 18(1), or

(b) where the person’s failure to comply with section 18(1) has affected the condition of any land, restoring the land to its condition before the failure.

(6) An enforcement notice may require in particular—

(a) the alteration or removal of any buildings or works,

(b) the carrying out of any building or other operations,

(c) any activity on the land concerned not to be carried out except to the extent specified in the notice.

(7) An enforcement notice must specify the period for compliance with the notice, and may specify different periods within which different steps are required to be taken or (as the case may be) different activities are required to cease.

(8) In this Part, an “enforcement notice” means a written notice given by the enforcement authority under subsection (1) or (2).

40 Withdrawal or variation of enforcement notice

(1) The enforcement authority may—

(a) withdraw an enforcement notice given by it, or

(b) waive or relax any requirement of such a notice.

(2) The enforcement authority may exercise the power under subsection (1) in relation to an enforcement notice regardless of whether the notice has taken effect.

(3) Immediately after exercising a power under subsection (1) in relation to an enforcement notice, the enforcement authority must give notice of—

(a) the withdrawal of the notice, or (as the case may be)

(b) the waiver or relaxation of any requirement of the notice,

to each person to whom the notice was given.

(4) The withdrawal of an enforcement notice by the enforcement authority under subsection (1) does not affect the power of the enforcement authority to issue a further enforcement notice.

41 Appeals against enforcement notice

(1) The Scottish Ministers may by regulations make provision for or about appeals against enforcement notices.

(2) Regulations under subsection (1) may in particular include provision about—

(a) who may appeal,

(b) grounds of appeal,

(c) the way in which appeals are to be made,

(d) the information to be provided when making appeals,

(e) the procedure for determining appeals,

(f) who may determine appeals,

(g) the manner in which appeals are to be conducted,

(h) decisions that may be taken on appeal,

(i) how the determination of appeals is to be notified.

(3) Regulations under subsection (1) may modify any enactment (including this Act).

42 Offence of failing to comply with enforcement notice

(1) If at any time after the end of the period for compliance with an enforcement notice—

(a) any step required by the notice has not been taken, or

(b) any activity required by the notice to cease is being carried on,

the person to whom the notice was given commits an offence.

(2) A person who commits an offence under subsection (1) is liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum,

(b) on conviction on indictment, to a fine.

(3) It is a defence for a person charged with an offence under subsection (1) to show that—

(a) the person did everything that the person could reasonably be expected to do to secure compliance with the enforcement notice,

(b) the person had a reasonable excuse for failing to ensure that the step concerned was taken or (as the case may be) for failing to ensure the cessation of the carrying on of the activity concerned.

(4) In this Part, references to the period for compliance with an enforcement notice are references to—

(a) the period specified in the notice for compliance with it in accordance with section 39(7), or

(b) such extended period as the enforcement authority may allow for compliance with the notice.

(5) For the purposes of subsection (4)(a), where an enforcement notice specifies that different periods apply to different steps or activities, references to the period for compliance with an enforcement notice, in relation to any step or activity, are references to the period at the end of which the step is required to have been taken or the activity is required to have ceased.

43 Execution and cost of works required by enforcement notice

(1) This section applies if at any time after the end of the period for compliance with an enforcement notice any step required by the notice has not been taken.

(2) The enforcement authority may—

(a) enter the land in relation to which the steps were required to be taken and take those steps, and

(b) recover from the person to whom the enforcement notice was given any expenses reasonably incurred by the enforcement authority in doing so.

(3) In determining the amount of expenses that may be recovered by it under subsection (2), the enforcement authority may include in that amount such proportion of its administrative expenses as it considers appropriate.

(4) When taking steps under subsection (2), the enforcement authority may sell any materials removed by it from the land unless those materials are claimed by the owner of the materials within 3 days of their removal.

(5) After any such sale the enforcement authority must pay the proceeds to the owner of the materials less the expenses recoverable by it from the owner of the materials.

(6) A person commits an offence if the person, without reasonable excuse, intentionally obstructs the enforcement authority in exercising its powers under subsection (2).

(7) A person who commits an offence under subsection (6) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.