The Fluorinated Greenhouse Gases Regulations 2015

Regulation 26(2A)

[F1 SCHEDULE 5 E+S Appeals

Textual Amendments

F1 Schs. 4, 5 inserted (E.S.) (1.4.2018) by The Fluorinated Greenhouse Gases (Amendment) Regulations 2018 (S.I. 2018/98), regs. 1(2), 31

Appeals against notices served by the Environment Agency or the Secretary of State E+S

1.— (1) A person on whom an enforcement notice, a civil penalty notice or an enforcement cost recovery notice is served by the Environment Agency or the Secretary of State may appeal against it to the First-tier Tribunal.

(2) An appeal must be made within 28 days beginning with the day on which the notice subject to the appeal is served.

(3) A person bringing an appeal under sub-paragraph (1) may withdraw the appeal at any time before the appeal is determined.

(4) Where an appeal is made under sub-paragraph (1), the notice is suspended until the appeal is withdrawn or determined by the First-tier Tribunal in accordance with sub-paragraph (5).

(5) The First-tier Tribunal may—

(a) affirm the notice;

(b) direct the Environment Agency or Secretary of State to vary or withdraw the notice;

(c) impose such other enforcement notice, civil penalty notice or enforcement cost recovery notice as the First-tier Tribunal thinks fit.

Appeals against notices served by the Scottish Ministers E+S

2.— (1) A person on whom an enforcement notice, a civil penalty notice or an enforcement cost recovery notice is served by the Scottish Ministers may appeal against it to the sheriff.

(2) The appeal must be made within 28 days beginning with the day on which the notice is served.

(3) A person bringing an appeal under sub-paragraph (1) may withdraw the appeal at any time before the appeal is determined.

(4) Where an appeal is made under sub-paragraph (1), the notice is suspended until the appeal is withdrawn or determined by the sheriff in accordance with sub-paragraph (5).

(5) The sheriff may, without prejudice to any other powers the sheriff may exercise—

(a) affirm the notice;

(b) direct the Scottish Ministers to vary or withdraw the notice;

(c) impose such other enforcement notice, civil penalty notice or, as the case may be, enforcement cost recovery notice as the sheriff thinks fit.

Appeals against notices served by SEPA E+S

3.— (1) A person, other than the Scottish Ministers, on whom an enforcement notice, a civil penalty notice or an enforcement cost recovery notice is served by SEPA may appeal against it to the Scottish Ministers.

(2) Subject to sub-paragraph (3), an appeal under sub-paragraph (1) must be made by notice in writing (“appeal notice”) within a period of 28 days beginning with the day on which the notice which is the subject of the appeal is served.

(3) The Scottish Ministers may at any time allow an appeal to be made after the expiry of the period mentioned in sub-paragraph (2).

(4) The appeal notice must be accompanied by—

(a) a statement of the grounds of appeal,

(b) a copy of any correspondence or document relevant to the appeal, and

(c) a statement indicating whether the person making an appeal under sub-paragraph (1) (“the appellant”) wishes the appeal to be in the form of a hearing or to be determined on the basis of written representations.

(5) The appellant must also serve on SEPA a copy of the appeal notice together with copies of any documents referred to in sub-paragraph (4) which accompanied it.

(6) The appellant may, by further notice in writing to SEPA, withdraw the appeal made under sub-paragraph (1) at any time before the appeal is determined.

(7) Where an appeal under sub-paragraph (1) is made under this paragraph, the notice is suspended until the appeal is either withdrawn under sub-paragraph (6) or determined in accordance with sub-paragraph (11).

(8) The Scottish Ministers may—

(a) appoint any person to exercise on their behalf, with or without payment, the function of determining the appeal in accordance with sub-paragraph (11), or

(b) refer for determination any matter involved in the appeal to such person as the Scottish Ministers may appoint for the purpose, with or without payment.

(9) If the appellant requests that an appeal under sub-paragraph (1) is in the form of a hearing, or the Scottish Ministers so decide—

(a) the appeal must be in the form of a hearing;

(b) the appeal must continue in the form of a hearing, despite previously being considered on the basis of written representations.

(10) Except in a case where an appeal is withdrawn under sub-paragraph (6), the Scottish Ministers or, with the agreement of the Scottish Ministers, any person appointed to determine an appeal (“the appointed person”), must notify the appellant and SEPA in writing of the decision and the reasons for the decision.

(11) The Scottish Ministers may—

(a) affirm the notice which is subject to the appeal under sub-paragraph (1);

(b) vary or withdraw the notice;

(c) impose such other enforcement notice, civil penalty notice or, as the case may be, enforcement cost recovery notice as the Scottish Ministers think fit, or as the case may be, the appointed person thinks fit.

(12) Where the determination is that the notice subject to the appeal under sub-paragraph (1) is to be varied or withdrawn, SEPA must give effect to the determination.

(13) Where an enforcement notice, a civil penalty notice or an enforcement cost recovery notice is served by SEPA on the Scottish Ministers (“the relevant notice”), the Scottish Ministers may appeal against it to the sheriff.

(14) An appeal under sub-paragraph (13) must be made within 28 days beginning with the day on which the relevant notice is served.

(15) The Scottish Ministers bringing an appeal under sub-paragraph (13) may withdraw the appeal at any time before the appeal is determined.

(16) Where an appeal is made under sub-paragraph (13), the relevant notice is suspended until the appeal is withdrawn or determined by the sheriff in accordance with sub-paragraph (17).

(17) The sheriff may, without prejudice to any other powers the sheriff may exercise—

(a) affirm the relevant notice;

(b) direct SEPA to vary or withdraw the relevant notice;

(c) impose such other enforcement notice, civil penalty notice or, as the case may be, enforcement cost recovery notice as the sheriff thinks fit.

Grounds for appeal E+S

4.— (1) The grounds for an appeal against an enforcement notice under paragraph 1(1), 2(1), 3(1) or 3(13) of this Schedule are that the relevant enforcing authority’s decision to serve the enforcement notice was—

(a) based on an error of fact;

(b) wrong in law;

(c) wrong for any other reason;

(d) unreasonable.

(2) The grounds for an appeal against a civil penalty notice under paragraph 1(1), 2(1), 3(1) or 3(13) of this Schedule are—

(a) that the relevant enforcing authority’s decision to serve the civil penalty notice was—

(i) based on an error of fact;

(ii) wrong in law;

(iii) wrong for any other reason;

(iv) unreasonable;

(b) that the amount specified in, or determined by, the notice is unreasonable.

(3) The grounds for an appeal against an enforcement cost recovery notice under paragraph 1(1), 2(1), 3(1) or 3(13) of this Schedule are—

(a) that the relevant enforcing authority’s decision to serve the enforcement cost recovery notice was—

(i) based on an error of fact;

(ii) wrong in law;

(iii) wrong for any other reason;

(iv) unreasonable;

(b) that the amount specified in the notice is unreasonable.]