Household waste
Section 14: Householder’s duty of care
46.Section 14 of the Act makes amendments to the Environmental Protection Act 1990 (“
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.
Section 15: Household waste requirements
61.Section 15 of the Act inserts five sections into the Environmental Protection Act 1990 (“
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)).
Section 16: Code of practice on household waste recycling
86.Section 16 of the Act amends the Environmental Protection Act 1990 Act by inserting a new section 44ZZA and adjusting section 44ZA. These changes introduce a code of practice about household waste collection and recycling functions.
87.Section 16(2) inserts section 44ZZA. Section 44ZZA(1) requires the Scottish Ministers to prepare and publish a code of practice, the purpose of which is to set out the standards expected of, and steps to be taken by, local authorities in carrying out their household waste collection and recycling functions. Section 44ZZA(2) allows the code to make different provision for different purposes or different local authority areas. Section 44ZZA(3) then makes further provision about the content of the code.
88.Sections 44ZZA(4) to (7) set out the procedure for the publication and revision of the code. The Scottish Ministers may revise the code (section 44ZZA(4)). Before publishing the first or revised version, they must consult local authorities and SEPA (section 44ZZA(5)). They may not publish a version of the code until after the expiry of the period of 40 days beginning with the day that a draft of that version of the code is laid before the Parliament (section 44ZZA(6)). In calculating the period of 40 days mentioned in subsection (6), no account is to be taken of any time during which the Parliament is dissolved, or in recess for more than 4 days (section 44ZZA(7)).
89.Section 44ZZA(8) provides that the definitions of “local authority” and “waste management functions” in the existing section 44ZA apply also for the purposes of the new provision; and also sets out a definition of “
90.Section 16(3) amends section 44ZA in various respects such that local authorities’ integrated waste management plans must set out how the local authority in question intends to perform its functions consistently with the code.
Section 17: Targets for waste collection authorities relating to household waste recycling
91.Section 17 of the Act inserts a new section 47B into the Environmental Protection Act 1990 (“
92.Section 47B(3) makes further provision about the content of regulations under subsection (1). The regulations may, among other matters, specify targets to be achieved by local authorities, make provision about the enforcement of the targets, and confer functions on SEPA in relation to monitoring the achievement of the targets.
93.Section 47B(4) requires the Scottish Ministers to consult publicly, and in particular to consult local authorities and SEPA before laying a draft of regulations under subsection (1) before the Scottish Parliament.
94.Section 47B(5) provides that regulations under subsection (1) may make different provision for different purposes, including for different local authorities; may modify any legislation, including the Act itself; and may make the ancillary provision listed in subsection (5)(c).
