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Part IIU.K. Waste on Land

Modifications etc. (not altering text)

C1Pt. II (ss. 29-78) amended: (1.4.1992) by S.I. 1992/588, reg. 8; (1.5.1994) by S.I. 1994/1056, regs. 1(3), 19, Sch. 4 para. 9 (as amended (E.W.) (15.5.3006) by S.I. 2006/937, reg. 6(10)(a))

Pt. II (ss. 29-78) modified: (1.2.1996) by 1995 c. 25, s. 5(5)(e) (with ss. 7(6), 115, 117) and S.I. 1996/186, art.2; (1.4.1996) by 1995 c. 25, s. 33(5)(e) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Pt. II (ss. 29-78): certain functions transferred on transfer date (1.4.1996) by 1995 c. 25, ss. 2(1)(b)(ii), 21(1)(b)(ii), 56(1) (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3, S.I. 1995/2649, art. 2 and S.I. 1995/1983, art. 2 (by which respectively s. 56 is in force from 28.7.1995, s. 21 is in force from 12.10.1995 and s. 2 is in force from 1.4.1996); S.I. 1996/136, art. 2; S.I. 1996/234), art. 2 (specifying transfer date)

Pt. II (ss. 29-78) extended (1.4.1996) by 1995 c. 25, s. 120(2), Sch. 23 para. 13 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

Commencement Information

I1Pt. II partly in force at 31.5.1991 see s. 164(3) and S.I. 1991/1319, art. 2

Pt. II partly in force at 13.12.1991 and for certain purposes at 01.04.1992 by S.I.1991/2829, arts. 2, 4.

Pt. II: power to make corresponding provisions conferred (27.7.1999) by 1999 c. 24, s. 2, Sch. 1 Pt. I para. 20(1)(a)

Prohibition on unauthorised or harmful depositing, treatment or disposal of wasteE+W+S

33 Prohibition on unauthorised or harmful deposit, treatment or disposal etc. of waste.E+W

(1)Subject to [F1subsections (1A), (1B), (2) and (3) below] and, in relation to Scotland, to section 54 below, a person shall not—

(a)deposit controlled waste [F2or extractive waste], or knowingly cause or knowingly permit controlled waste [F2or extractive waste] to be deposited in or on any land unless [F3an environmental permit] authorising the deposit is in force and the deposit is in accordance with the licence;

[F4(b)submit controlled waste, or knowingly cause or knowingly permit controlled waste to be submitted, to any listed operation (other than an operation within subsection (1)(a)) that—

(i)is carried out in or on any land, or by means of any mobile plant, and

(ii)is not carried out under and in accordance with an environmental permit.]

(c)treat, keep or dispose of controlled waste [F5or extractive waste] in a manner likely to cause pollution of the environment or harm to human health.

[F6(1A)Paragraphs (a) and (b) of subsection (1) above do not apply in relation to a waste operation that is an exempt waste operation.

[F7(1B)Subsection (1) does not apply in relation to any part of a waste operation that—

(a)is the subject of a marine licence under the Marine and Coastal Access Act 2009; or

(b)does not require such a licence by virtue of any provision made by or under section 74, 75 or 77 of that Act and does not involve the dismantling of a ship that is waste.]]

[F8(2)Subject to subsection (2A) below, paragraphs (a) and (b) of subsection (1) above do not apply in relation to household waste from a domestic property which is treated, kept or disposed of within the curtilage of the property.

(2A)Subsection (2) above does not apply to the treatment, keeping or disposal of household waste by an establishment or undertaking.]

(3)Subsection (1)(a), (b) or (c) above do not apply in cases prescribed in regulations made by the Secretary of State and the regulations may make different exceptions for different areas.

(4)The Secretary of State, in exercising his power under subsection (3) above, shall have regard in particular to the expediency of excluding from [F9the prohibitions in subsection (1)]—

(a)any deposits which are small enough or of such a temporary nature that they may be so excluded;

(b)any means of treatment or disposal which are innocuous enough to be so excluded;

(c)cases for which adequate controls are provided by another enactment than this section.

(5)Where controlled waste is carried in and deposited from a motor vehicle, the person who controls or is in a position to control the use of the vehicle shall, for the purposes of subsection (1)(a) above, be treated as knowingly causing the waste to be deposited whether or not he gave any instructions for this to be done.

(6)A person who contravenes subsection (1) above F10. . . commits an offence.

(7)It shall be a defence for a person charged with an offence under this section to prove—

(a)that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence; or

(b)F11. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F12[(c)that the acts alleged to constitute the contravention were done in an emergency in order to avoid danger to human health in a case where—

(i)he took all such steps as were reasonably practicable in the circumstances for minimising pollution of the environment and harm to human health; and

(ii)particulars of the acts were furnished to the waste regulation authority as soon as reasonably practicable after they were done.]

[F13(8)A person who commits an offence under this section is liable—

(a)[F14Subject to subsection (9) below,] on summary conviction, to imprisonment for a term not exceeding [F15the general limit in a magistrates’ court] or [F16a fine] or both;

(b)on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or both.]

F17[F18(9)A person (other than an establishment or undertaking) who commits a relevant offence shall be liable [F19on summary conviction, or on conviction on indictment, to a fine].

(10)In this section, “relevant offence” means an offence under this section in respect of a contravention of subsection (1)(c) above consisting of the treatment, keeping or disposal within the curtillage of a domestic property of household waste from that property.]

(11)For the purposes of subsection (1)(a) above, the deposit of waste in or on land includes any listed operation involving such a deposit.

(12)For the purposes of subsection (1)(c) above, treating, keeping or disposing of controlled waste includes submitting it to any listed operation.

(13)For the purposes of this section, a “listed operation” is an operation listed in Annex I or II of [F20the Waste Framework Directive].

Extent Information

E1This version of this provision extends to England and Wales only; a separate version has been created for Scotland only

Textual Amendments

F2Words in s. 33(1) inserted (E.W.) (7.7.2009) by The Environmental Permitting (England and Wales (Amendment) Regulations (S.I. 2009/1799), reg. 28(1), Sch. 2 para. 1(3) (with reg. 28(2))

F5Words in s. 33(1) inserted (E.W.) (7.7.2009) by The Environmental Permitting (England and Wales) (Amendment) Regulations (S.I. 2009/1799), reg. 28(1), {Sch. 2 para. 1(3)}

F8S. 33(2)(2A) substituted (E.W.) (15.5.2006) for s. 33(2) by The Waste Management (England and Wales) Regulations 2006 (S.I. 2006/937), reg. 2(2)(a)

F12S. 33(7)(c) substituted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 64 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F13S. 33(8) substituted (E.W.) (7.6.2005) for s. 33(8)(9) by Clean Neighbourhoods and Environment Act 2005 (c. 16), ss. 41(1), 108(4)(g) (with s. 41(2)(3))

F17By The Hazardous Waste (England and Wales) Regulations 2005 (S.I. 2005/894), regs. 1, 71 (with reg. 75), it is provided that in s. 33(9) the words "hazardous waste" shall be substituted (E.W.) (16.7.2005) for the words "special waste"

Modifications etc. (not altering text)

C4S. 33 restricted (E.) (13.4.2001) by S.I. 2001/1478, reg. 3(b)

C8S. 33(1)(a)-(c) amended (1.5.1994) by S.I. 1994/1056, regs. 1(3), 19, Sch. 4 Pt. I para. 9(3)-(5)

S. 33(1)(a)-(c) excluded (1.5.1994) by S.I. 1994/1056, reg. 16

C9S. 33(1)(a)(b) excluded (1.5.1994) by S.I. 1994/1056, reg. 17

S. 33(1)(a)(b) modified (27.7.1999) by 1999 c. 24, s. 4(6)(8)

S. 33(1)(a)(b) excluded (E.W.) (15.5.2006) by The Waste Management (England and Wales) Regulations 2006 (S.I. 2006/937), reg. 13

C11S. 33(5) amended (1.5.1994) by S.I. 1994/1056, regs. 1(3), 19, Sch. 4 Pt. I para. 9(3)

C12S. 33(6) restricted (27.7.1999) by 1999 c. 24, s. 4(7)(8)

Commencement Information

I2S. 33 not in force at Royal Assent, see s. 164(3); s. 33(3)(4) in force at 13.12.1991, s. 33(1)(c) in force at 1.4.1992 and s. 33(2)(6)-(9) in force for certain purposes at 1.4.1992 by S.I. 1991/2829, arts. 2, 4; s. 33 in force in so far as not already in force at 1.5.1994 save for purposes of application to activities specified in art. 2(2) of the commencing S.I. and otherwise in force in relation to those activities in accordance with art. 3 of the commencing S.I. by S.I. 1994/1096, arts. 2(2)(3), 3 (as amended by S.I. 1994/2487, art. 2 and S.I. 1994/3234, art. 2)

33 Prohibition on unauthorised or harmful deposit, treatment or disposal etc. of waste.S

(1)Subject to subsection (2) [F51, (2B)] and (3) below F52... a person shall not—

(a)deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence;

(b)treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of—

(i)in or on any land, or

(ii)by means of any mobile plant,

except under and in accordance with a waste management licence;

(c)[F53keep or manage] controlled waste in a manner likely to cause pollution of the environment or harm to human health.

[F54(2)Subject to subsection (2A) below, paragraphs (a) and (b) of subsection (1) above do not apply in relation to household waste from a domestic property which is treated, kept or disposed of within the curtilage of the dwelling.

(2A)Subsection (2) above does not extend to the treatment, keeping or disposal of household waste by an establishment or undertaking.]

[F55(2B)Paragraphs (a) and (b) of subsection (1) above do not apply to the deposit or keeping of a waste portable battery or accumulator at a collection point set up to comply with Article 8(1)(a) of Directive 2006/66/EC of the European Parliament and of the Council on batteries and accumulators [F56as last amended by Directive (EU) 2018/849 of the European Parliament and of the Council] (in this section, “the Batteries Directive”).

(2C)In subsection (2B) above, “portable battery or accumulator” has the meaning given by Article 3(3) of the Batteries Directive, but does not include any battery or accumulator excluded from the scope of that Directive by Article 2(2).]

[F57(2D)When interpreting the Batteries Directive for the purposes of this section, Article 2(2) is to be read as though for the words “Member States'” there were substituted “the United Kingdom's”.]

(3)Subsection (1)(a), (b) or (c) above do not apply in cases prescribed in regulations made by the Secretary of State and the regulations may make different exceptions for different areas.

(4)The Secretary of State, in exercising his power under subsection (3) above, shall have regard in particular to the expediency of excluding from the controls imposed by waste management licences—

(a)any deposits which are small enough or of such a temporary nature that they may be so excluded;

(b)any means of treatment or disposal which are innocuous enough to be so excluded;

(c)cases for which adequate controls are provided by another enactment than this section.

(5)Where controlled waste is carried in and deposited from a motor vehicle, the person who controls or is in a position to control the use of the vehicle shall, for the purposes of subsection (1)(a) above, be treated as knowingly causing the waste to be deposited whether or not he gave any instructions for this to be done.

(6)A person who contravenes subsection (1) above or any condition of a waste management licence commits an offence.

(7)It shall be a defence for a person charged with an offence under this section to prove—

(a)that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence; or

(b)that he acted under instructions from his employer and neither knew nor had reason to suppose that the acts done by him constituted a contravention of subsection (1) above; or

F58[(c)that the acts alleged to constitute the contravention were done in an emergency in order to avoid danger to human health in a case where—

(i)he took all such steps as were reasonably practicable in the circumstances for minimising pollution of the environment and harm to human health; and

(ii)particulars of the acts were furnished to the waste regulation authority as soon as reasonably practicable after they were done.]

(8)Except in a case falling within subsection (9) [F59or (10)] below, a person who commits an offence under this section shall be liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding [F60£40,000] or both; and

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.

(9)A person who commits an offence under this section in relation to special waste [F61(other than household waste of the description specified in subsection (10) below)] shall be liable—

(a)on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding [F60£40,000] or both;

(b)on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or both.

[F62(10)A person who commits an offence under subsection (1)(c) above in relation to household waste from a domestic property within the curtilage of the dwelling shall be liable–

(a)on summary conviction, to imprisonment for a term not exceeding three months or a fine not exceeding the statutory maximum or both;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.]

[F63(11)In subsection (4)(c) above, “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament.]

Extent Information

E2This version of this provision extends to Scotland only; a separate version has been created for England and Wales only

Textual Amendments

F51Words in s. 33(1) inserted (S.) (6.7.2009) by The Waste Batteries (Scotland) Regulations (S.S.I. 2009/247), {reg. 3(2)}

F52Words in s. 33(1) repealed (1.4.2015 for S.) by Environment Act 1995 (c. 25), s. 125(3), Sch. 24 (with ss. 7(6), 115, 117); S.S.I. 2015/73, art. 2(2)(a)

F53Words in s. 33(1)(c) substituted (S.) (27.3.2011) by The Waste (Scotland) Regulations 2011 (S.S.I. 2011/226), regs. 1(1), 2(3)

F54S. 33(2)(2A) substituted (S.) (21.1.2005) for s. 33(2) by The Waste (Scotland) Regulations 2005 (S.S.I. 2005/22), regs. 1(1), 3(2)(a)

F55S. 33(2B)(2C) inserted (S.) (6.7.2009) by The Waste Batteries (Scotland) Regulations (S.S.I. 2009/247), {reg. 3(3)}

F58S. 33(7)(c) substituted (1.4.1996) by 1995 c. 25, s. 120(1), Sch. 22 para. 64 (with ss. 7(6), 115, 117); S.I. 1996/186, art. 3

F59Words in s. 33(8) inserted (S.) (21.1.2005) by The Waste (Scotland) Regulations 2005 (S.S.I. 2005/22), regs. 1(1), 3(2)(b)

F61Words in s. 33(9) inserted (S.) (21.1.2005) by The Waste (Scotland) Regulations 2005 (S.S.I. 2005/22), regs. 1(1), 3(2)(c)

Modifications etc. (not altering text)

C13S. 33 restricted (E.) (13.4.2001) by S.I. 2001/1478, reg. 3(b)

C14S. 33(1)(a)-(c) amended (1.5.1994) by S.I. 1994/1056, regs. 1(3), 19, Sch. 4 Pt. I para. 9(3)-(5)

S. 33(1)(a)-(c) excluded (1.5.1994) by S.I. 1994/1056, reg. 16

C15S. 33(1)(a)(b) excluded (1.5.1994) by S.I. 1994/1056, reg. 17

S. 33(1)(a)(b) modified (27.7.1999) by 1999 c. 24, s. 4(6)(8)

C16S. 33(5) amended (1.5.1994) by S.I. 1994/1056, regs. 1(3), 19, Sch. 4 Pt. I para. 9(3)

C17S. 33(6) restricted (27.7.1999) by 1999 c. 24, s. 4(7)(8)

Commencement Information

I3S. 33 not in force at Royal Assent, see s. 164(3); s. 33(3)(4) in force at 13.12.1991, s. 33(1)(c) in force at 1.4.1992 and s. 33(2)(6)-(9) in force for certain purposes at 1.4.1992 by S.I. 1991/2829, arts. 2, 4; s. 33 in force in so far as not already in force at 1.5.1994 save for purposes of application to activities specified in art. 2(2) of the commencing S.I. and otherwise in force in relation to those activities in accordance with art. 3 of the commencing S.I. by S.I. 1994/1096, arts. 2(2)(3), 3 (as amended by S.I. 1994/2487, art. 2 and S.I. 1994/3234, art. 2)

[F2133ZAFixed penalty notices for contravention of section 33(1)(a): EnglandE+W+S

(1)Where an authorised officer of an English waste collection authority has reason to believe that a person has committed a waste deposit offence in the area of the authority, the officer may give the person a notice under this section in respect of the offence.

(2)In subsection (1), “waste deposit offence” means an offence under section 33 in respect of a contravention of subsection (1)(a) of that section.

(3)A notice under this section is a notice offering the opportunity of discharging any liability to conviction for the offence to which it relates by payment of a fixed penalty.

(4)Where a person is given a notice under this section in respect of an offence—

(a)no proceedings may be instituted for the offence before the end of the period of 14 days following the date of the notice; and

(b)the person may not be convicted of the offence if the person pays the fixed penalty before the end of that period.

(5)A notice under this section must give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information about the offence and must state—

(a)the period during which, by virtue of subsection (4)(a), proceedings will not be taken for the offence;

(b)the amount of the fixed penalty; and

(c)the person to whom and the address at which the fixed penalty may be paid.

(6)If an authorised officer proposes to give a person a notice under this section, the officer may require the person to give the person’s name and address.

(7)It is an offence to—

(a)fail to give a name or address when required to do so under subsection (6), or

(b)give a false or inaccurate name or address in response to a requirement under that subsection.

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

(9)The fixed penalty payable in pursuance of a notice under this section—

(a)is an amount not less than £150 and not more than [F22£1000], as specified by the English waste collection authority whose authorised officer gave the notice, or

(b)if no amount is specified by that authority, is £200.

(10)An English waste collection authority to whom a fixed penalty is payable pursuant to a notice under this section may make provision for treating the fixed penalty as having been paid if a lesser amount of not less than £120 is paid before the end of [F23a period specified by the authority.]

[F24(10A)The Secretary of State may by regulations substitute different amounts for the amounts for the time being specified in subsections (9) and (10).]

(11)In any proceedings a certificate which—

(a)purports to be signed by or on behalf of the chief finance officer of an English waste collection authority to whom a fixed penalty is payable pursuant to a notice under this section, and

(b)states that the payment of a fixed penalty was or was not received by a date specified in the certificate,

is evidence of the facts stated.

(12)In this section—

Textual Amendments

[F2533ZBFixed penalty notices for contravention of section 33(1)(a): WalesE+W

(1)Where an authorised officer of a Welsh waste collection authority has reason to believe that a person has committed a waste deposit offence in the area of the authority, the officer may give the person a notice under this section in respect of the offence.

(2)In subsection (1), “waste deposit offence” means an offence under section 33 in respect of a contravention of subsection (1)(a) of that section.

(3)A notice under this section is a notice offering the opportunity of discharging any liability to conviction for the offence to which it relates by payment of a fixed penalty.

(4)Where a person is given a notice under this section in respect of an offence—

(a)no proceedings may be instituted for the offence before the end of the period of 14 days following the date of the notice, and

(b)the person may not be convicted of the offence if the person pays the fixed penalty before the end of that period.

(5)A notice under this section must give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information about the offence and must state—

(a)the period during which, by virtue of subsection (4)(a), proceedings will not be taken for the offence,

(b)the amount of the fixed penalty, and

(c)the person to whom and the address at which the fixed penalty may be paid.

(6)If an authorised officer proposes to give a person a notice under this section, the officer may require the person to give the person’s name and address.

(7)It is an offence to—

(a)fail to give a name or address when required to do so under subsection (6), or

(b)give a false or inaccurate name or address in response to a requirement under that subsection.

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

(9)The fixed penalty payable in pursuance of a notice under this section—

(a)is an amount not less than £150 and not more than £400, as specified by the Welsh waste collection authority whose authorised officer gave the notice, or

(b)if no amount is specified by that authority, is £200.

(10)A Welsh waste collection authority to whom a fixed penalty is payable pursuant to a notice under this section may make provision for treating the fixed penalty as having been paid if a lesser amount of not less than £120 is paid before the end of the period of 10 days following the date of the notice.

(11)In any proceedings, a certificate which—

(a)purports to be signed by or on behalf of the chief finance officer of a Welsh waste collection authority to whom a fixed penalty is payable pursuant to a notice under this section, and

(b)states that the payment of a fixed penalty was or was not received by a date specified in the certificate,

is evidence of the facts stated.

(12)In this section—

Textual Amendments

[F2633A Section 33 offences: investigation and enforcement costsE+W

[F27(1)This section applies where a person is convicted of an offence—

(a)under section 33 above, in respect of a contravention of subsection (1) of that section;

(b)under [F28regulation 38(1) of the Environmental Permitting Regulations], in respect of a waste operation[F29 or a mining waste operation].]

(2)The court by or before which the offender is convicted may make an order requiring him to pay to an enforcement authority a sum which appears to the court not to exceed the costs arising from—

(a)investigations of the enforcement authority which resulted in the conviction; and

(b)the seizure by the enforcement authority under section 34B below of a vehicle involved in the offence.

(3)The costs arising from the seizure of a vehicle as specified in subsection (2)(b) above may include the cost of disposing of the contents of the vehicle.

(4)The power of a court to make an order under this section is in addition to its power to make an order under section 18 of the Prosecution of Offences Act 1985 (award of costs against accused).

(5)In this section “enforcement authority” means the Environment Agency [F30, the Natural Resources Body for Wales] or a waste collection authority.]

Textual Amendments

F29Words in s. 33A(1) inserted (E.W.) (7.7.2009) by The Environmental Permitting (England and Wales) (Amendment) Regulations (S.I. 2009/1799), reg. 28, {Sch. 2 para. 1(4)}

Modifications etc. (not altering text)

[F6433AFixed penalty notices for contraventions of section 33(1)(a) and (c): ScotlandS

(1)Where—

(a)an authorised [F65person or a constable] has reason to believe that a person has committed a relevant offence F66 ...

(b)F66 ...

he may give that person a notice under this section in respect of the offence.

(2)In subsection (1) above, “relevant offence” means an offence under section 33 above in respect of a contravention of subsection (1)(a) or (c) of that section.

(3)A notice under this section is a notice offering the opportunity, by paying a fixed penalty, of discharging any liability to conviction for the offence to which it relates.

(4)Where—

(a)a constable; F67...

F67. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

gives a notice under this section to a person, he shall, no later than 24 hours after the giving of the notice, send a copy of it to the local authority in whose area the offence was committed.

(5)Where a person is given a notice under this section in respect of an offence—

(a)no proceedings shall be instituted for that offence before the expiration of fourteen days following the date of the notice; and

(b)he shall not be convicted of that offence if he pays the fixed penalty before the expiration of that period.

(6)A notice under this section shall give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information about the offence and shall state—

(a)the period during which, by virtue of subsection (5)(a) above, proceedings will not be taken for the offence;

(b)the amount of the fixed penalty; and

(c)the person to whom and the address at which the fixed penalty may be paid;

and without prejudice to payment by any other method, payment of the fixed penalty may be made by pre-paying and posting to that person at that address a letter containing the amount of the penalty (in cash or otherwise).

(7)Where a letter is sent in accordance with subsection (6) above payment shall be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.

(8)The form of notices under this section shall be such as the Scottish Ministers may by order prescribe.

[F68(8A)If an authorised person proposes to give a person a notice under this section, the authorised person may require the person to give him his name and address.]

[F68(8B)A person commits an offence if he fails to give his name and address when required to do so under subsection (8A) above.]

[F68(8C)A person who commits an offence under subsection (8B) above is liable on summary conviction to a fine not exceeding level 3 on the standard scale.]

(9)The fixed penalty payable in pursuance of a notice under this section shall, subject to subsection (10) below, be [F69£500].

(10)The Scottish Ministers may by order substitute a different amount (not exceeding level 2 on the standard scale) for the amount for the time being specified as the amount of the fixed penalty in subsection (9) above.

(11)In any proceedings a certificate which—

(a)purports to be signed by or on behalf of [F70a proper officer ]; and

(b)states that the payment of a fixed penalty was or was not received by a date specified in the certificate,

shall be evidence of the facts stated.

[F71(11A)In subsection (11) above, “proper officer” means—

(a)in a case where a notice under this section is given by an officer of a local authority authorised as mentioned in paragraph (a) of the definition of “authorised person” in subsection (13) below, the officer who has, as respects the authority, the responsibility mentioned in section 95 of the Local Government (Scotland) Act 1973 (financial administration);

(b)in a case where a notice under this section is given by an officer of Loch Lomond and The Trossachs National Park Authority authorised as mentioned in paragraph (b) of that definition, the proper officer for that Authority appointed under paragraph 12(3) of schedule 2 to the National Parks (Scotland) Act 2000.]

(12)A fixed penalty payable in pursuance of a notice under this section shall be payable—

(a)[F72in a case such as is mentioned in paragraph (a) of subsection (11A) above,] to the local authority in whose area the offence was committed; and as respects the sums received by a local authority, those sums shall [F73accrue to that authority].

[F74(b)in a case such as is mentioned in paragraph (b) of that subsection, to Loch Lomond and The Trossachs National Park Authority; and as respects the sums received by that Authority, those sums shall accrue to that Authority.]

(13)In this section—

[F77(13A)The Scottish Ministers may by order make such modifications of this section as they consider necessary or expedient in connection with the specification of a person by an order under paragraph (c) of the definition of “authorised person” in subsection (13) above.

[F77(13B)An order under subsection (13A) above may include provision—

(a)applying any provision of this section to such a person with such modifications as may be specified in the order;

(b)for any such provision not to apply in relation to such a person.]]]

Textual Amendments

F69Sum in s. 33A(9) substituted (S.) (1.1.2024) by The Fly-tipping (Fixed Penalty) (Scotland) Order 2023 (S.S.I. 2023/335), arts. 1, 2

Modifications etc. (not altering text)

[F3133BSection 33 offences: clean-up costsE+W

[F32(1)This section applies where a person is convicted of an offence—

(a)under section 33 above, in respect of a contravention of subsection (1) of that section consisting of the deposit or disposal of controlled waste [F33or extractive waste];

(b)under [F34regulation 38(1) of the Environmental Permitting Regulations], in respect of a contravention of regulation 12 of those Regulations consisting of the disposal of waste.]

(2)The reference in [F35section 133(a) of the Sentencing Code] (compensation orders) to loss or damage resulting from the offence includes costs incurred or to be incurred by a relevant person in—

(a)removing the waste deposited or disposed of in or on the land;

(b)taking other steps to eliminate or reduce the consequences of the deposit or disposal; or

(c)both.

(3)In subsection (2) above “relevant person” means—

(a)the Environment Agency;

[F36(aa)the Natural Resources Body for Wales;]

(b)a waste collection authority;

(c)the occupier of the land;

(d)the owner of the land (within the meaning of section 78A(9) below).

(4)The reference in subsection (2) above to costs incurred does not, in the case of the Environment Agency [F37, the Natural Resources Body for Wales] or a waste collection authority, include any costs which the Agency [F38, Body] or authority has already recovered under section 59(8) below.

(5)[F39Subject to subsection (6) below,] in relation to the costs referred to in subsection (2) above, [F40a reference in section 139(2) or (3) of the Sentencing Code] (limit on amount payable) to £5000 is instead to be construed as a reference to the amount of those costs (or, if the costs have not yet been incurred, the likely amount).

[F41(6)Subsection (5) above does not apply where a person (other than an establishment or undertaking) is convicted of a relevant offence within the meaning of section 33 above.]]

Textual Amendments

F33Words in s. 33B inserted (E.W.) (7.7.2009) by The Environmental Permitting (England and Wales) (Amendment) Regulations (S.I. 2009/1799), reg. 28, {Sch. 2 para. 1(5)}

Modifications etc. (not altering text)

[F4233CSection 33 offences: forfeiture of vehiclesE+W

[F43(1)This section applies where—

(a)subject to subsection (1A) below, a person is convicted of an offence under section 33 above in respect of a contravention of subsection (1) of that section consisting of the deposit or disposal of controlled waste;

(b)a person is convicted of an offence under [F44regulation 38(1) of the Environmental Permitting Regulations] in respect of a contravention of regulation 12 of those Regulations consisting of the disposal of waste.]

[F45(1A)This section does not apply where a person (other than an establishment or undertaking) is convicted of a relevant offence within the meaning of section 33 above.]

(2)The court by or before which the offender is convicted may make an order under this section if—

(a)the court is satisfied that a vehicle was used in or for the purposes of the commission of the offence; and

(b)at the time of his conviction the offender has rights in the vehicle.

(3)An order under this section operates to deprive the offender of his rights in the vehicle (including its fuel) at the time of his conviction and to vest those rights in the relevant enforcement authority.

(4)In a case where a vehicle has been seized under section 34B below and the offender retains rights in any of the vehicle's contents, an order under this section may, if and to the extent that it so specifies, deprive the offender of those rights and vest them in the relevant enforcement authority.

(5)Where an order under this section is made, the relevant enforcement authority may take possession of the vehicle (if it has not already done so under section 34C below).

(6)The court may make an order under this section whether or not it also deals with the offender in any other way in respect of the offence of which he is convicted.

(7)In considering whether to make an order under this section a court must in particular have regard to—

(a)the value of the vehicle;

(b)the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making);

(c)the offender's need to use the vehicle for lawful purposes;

(d)whether, in a case where it appears to the court that the offender is engaged in a business which consists wholly or partly in activities which are unlawful by virtue of section 33 above, [F46or [F47regulation 38(1) or (2) of the Environmental Permitting Regulations],] the making of the order is likely to inhibit the offender from engaging in further such activities.

(8)[F48Section 153 of the Sentencing Code] (power to deprive offender of property) does not apply in any case where this section applies.

(9)For the purposes of this section, where a vehicle or its contents have been seized under section 34B below in connection with the offence referred to in subsection (1) above, any transfer by the offender after the seizure and before his conviction of any of his rights in the vehicle or its contents is of no effect.

(10)In this section—

Textual Amendments

Modifications etc. (not altering text)