Enforcement notices
Section 43 - Compliance notice
59.Section 43 provides that a person carrying out a licensed activity in a manner that breaches licence conditions can be issued with a notice requiring compliance. Such a notice is called a “compliance notice”.
60.The Scottish Ministers can issue a compliance notice where licence conditions have been breached and where the activity has not caused (nor is likely to cause) serious harm to either the environment or human health or serious interference with legitimate uses of the sea. A compliance notice may be served, for example in the case of a technical breach. The Scottish Ministers will use other enforcement tools available to them, such as a stop or remediation notice, where the breach has led to serious harm to the environment or human health.
61.A compliance notice must state the Scottish Ministers’ reasons for issuing the notice, any steps the Scottish Ministers require to be taken, and the time period within which any steps should be completed.
Section 44 - Remediation notice
62.Section 44 indicates that a person who has carried on or is carrying on a licensable activity, either without a licence or in a manner that breaches the conditions of their licence, can be issued with a notice requiring them to put right any damage caused by their activity, pay for another body to put right that damage, or to undertake steps elsewhere in compensation for the damage caused. Such a notice is called a “remediation notice”.
63.The Scottish Ministers can issue a remediation notice in cases where harm to the environment or human health has occurred, or is likely to occur, or where the activity has interfered with other legitimate uses of the sea, or is likely to do so.
64.The Scottish Ministers may only issue a remediation notice after they have consulted the person to whom they intend to issue the notice.
65.The remediation notice may require the person to take steps to protect the environment, prevent, minimise or mitigate the effects of harm or interference caused, or restore a site to an appropriate condition had the harm or interference not been caused. In addition, the remediation notice may require steps to be taken at a site other than the one affected by the harm or interference. It may not be reasonably possible to restore a site so steps to be taken at another site may be deemed more appropriate. A remediation notice could be served in addition to a stop notice (see below). This would be the case, for example, where the Scottish Ministers sought to put an immediate halt to a damaging activity and then to require the operator to put right the damage already caused.
66.A remediation notice must state the Scottish Ministers’ reasons for issuing the notice; any remedial steps or payment to be made as a consequence of the offence or to protect the environment, human health or prevent interference; and the time period within which any steps required should be completed or sum paid. The requirements contained in a remediation notice must be reasonable.
Section 45 - Further provision as to compliance and remediation notices
67.Section 45 indicates that all compliance and remediation notices must be served on the person undertaking or in control of the activity in question, and may, if a licence has been granted for that activity and the person is different, also be served on the licensee. Notices can be varied or revoked by issue of a further notice.
68.It is an offence to fail to comply with a compliance or remediation notice.
