The Alien and Locally Absent Species in Aquaculture (England and Wales) Regulations 2011

PART 3 E+W Enforcement, penalties and appeals

Entry and inspection of land and premises E+W

12.—(1) For the purposes of enforcing these Regulations and Council Regulation 708/2007, an inspector has power, on producing a duly authenticated authorisation if required, to enter any land or premises (except any premises used wholly or mainly as a private dwelling house) at any reasonable hour by giving reasonable notice.

(2) But the requirement to give notice is not necessary—

(a) where reasonable efforts to agree an appointment have failed;

(b) where an inspector has reasonable suspicion of a failure to comply with these Regulations or Council Regulation 708/2007; or

(c) in an emergency.

(3) A justice of the peace may by signed warrant permit an inspector to enter any land or premises, if necessary by reasonable force, if the justice, on sworn information in writing, is satisfied—

(a) that there are reasonable grounds to enter that land or premises for the purpose of enforcing these Regulations and Council Regulation 708/2007; and

(b) that any of the conditions in paragraph (4) are met.

(4) The conditions are—

(a) entry to the premises has been, or is likely to be, refused, and notice of the intention to apply for a warrant has been given to the occupier;

(b) asking for admission to the premises, or giving such a notice, would defeat the object of the entry;

(c) entry is required urgently; or

(d) the premises are unoccupied or the occupier is temporarily absent.

(5) A warrant is valid for three months.

[F1 (6) An inspector entering any land or premises under this regulation may be accompanied by such person, and may enter together with such equipment or vehicle, as the inspector considers necessary for the purposes of this regulation.]

(7) An inspector entering any premises which are unoccupied or from which the occupier is temporarily absent must leave them as effectively secured against unauthorised entry as they were before entry.

Textual Amendments

F1 Reg. 12(6) substituted (31.12.2020) by The Aquatic Animal Health and Alien Species in Aquaculture (Amendment) (England and Wales) (EU Exit) Regulations 2019 (S.I. 2019/452), regs. 1, 3(3); 2020 c. 1, Sch. 5 para. 1(1)

Search and examination of items on land and premises E+W

13.  Subject to regulation 16, where an inspector exercises the power conferred by regulation 12, the inspector may—

(a) search the land or premises for any item, including any aquatic organism or water;

(b) examine anything that is—

(i) on the land or premises;

(ii) attached to or otherwise forms part of the land or premises.

Production of documents E+W

14.  Subject to regulation 16, an inspector may require any person—

(a) to produce any document or record that is in that person's possession or control;

(b) to render any such document or record on a computer system into a visible and legible form, including requiring it to be produced in a form in which it may be taken away.

Seizure of items E+W

15.—(1) Subject to regulation 16, where an inspector exercises the powers conferred by regulation 13 or 14 the inspector may—

(a) seize, detain or remove any item that is on the land or premises;

(b) take copies of or extracts from any document or record found on the land or premises.

(2) The power in paragraph (1)(a) includes a power to take samples of any aquatic organism or water.

(3) An inspector to whom any document or record has been produced in accordance with a requirement imposed under regulation 14, may—

(a) seize, detain or remove that document or record;

(b) take copies of or extracts from that document or record.

(4) If, in the opinion of the inspector, it is not for the time being practicable for the inspector to seize and remove any item, the inspector may require any person on the land or premises to secure that the item is not removed or otherwise interfered with until such time as the inspector may seize and remove it.

(5) Any item seized by an inspector may be retained so long as is necessary in the circumstances.

(6) Any aquatic organism seized may be disposed of as the inspector sees fit.

Enforcement powers E+W

16.  The powers conferred by regulations 13, 14 and 15 may only be exercised—

(a) for the purpose of determining whether an offence under these Regulations has been committed; or

(b) in relation to an item which an inspector reasonably believes to be evidence of the commission of an offence under these Regulations.

Enforcement notices E+W

17.—(1) The competent authority may serve an enforcement notice on any person whom it considers has failed to comply with Council Regulation 708/2007 or these Regulations.

(2) The competent authority may serve an enforcement notice on an operator where it considers that aquatic organisms present in an aquaculture facility were introduced in contravention of Council Regulation 708/2007 or these Regulations or any condition of a permit or a notice issued under these Regulations.

(3) An enforcement notice must—

(a) be in writing;

(b) state the matters which constitute the failure to comply or contravention;

(c) state what, and by when, the person must do or refrain from doing;

(d) state that there is the right of appeal under regulation 20;

(e) state that the grounds for serving a notice of appeal under regulation 20(2) are those in regulation 21(1); and

(f) state that a notice of appeal must be accompanied by the statement referred to in regulation 21(2).

(4) In particular, an enforcement notice may require the person on whom it is served to—

(a) remove and dispose of the aquatic organisms, at their own expense, in a manner and within the period specified in the notice;

(b) take steps to ensure that the position is, so far as possible, restored to what it would have been prior to the contravention.

(5) If an enforcement notice is not complied with, the competent authority may—

(a) take such steps as it considers necessary (including the removal and disposal of the aquatic organisms)—

(i) to ensure compliance with the requirements of the notice;

(ii) to remedy the consequences of the failure to carry them out; and

(b) recover any costs reasonably incurred in so doing from the person who has failed to comply with the enforcement notice.

(6) The competent authority may remove and dispose of the aquatic organisms without serving an enforcement notice—

(a) in an emergency; and

(b) at the expense of the operator.

(7) In this regulation, “operator” means any person who is responsible for the management of the aquaculture facility.

Recovery of expenses of enforcement E+W

18.—(1) This regulation applies where a court convicts a person of an offence under regulation 22(b) or (d).

(2) The court may (in addition to any other order it may make as to costs or expenses) order the person to reimburse the competent authority for any expenditure which the competent authority has incurred under regulation 17(5) or (6).

Amendment, suspension or revocation of permit or notice E+W

19.—(1) This regulation applies in relation to—

(a) a permit; or

(b) a notice under regulation 7(2)(b) or (3)(b).

(2) The competent authority may—

(a) amend the permit or notice, including any condition of the permit or notice; or

(b) suspend or revoke the permit or notice if satisfied that any condition of the permit or notice or any provision of Council Regulation 708/2007 or these Regulations is contravened.

(3) An amendment under paragraph (2)(a) may be made—

(a) on the initiative of the competent authority; or

(b) on application by the permit or notice holder in such form and containing such information as the competent authority may reasonably require.

(4) An amendment under paragraph (2)(a) or a suspension or revocation under paragraph (2)(b) must be notified in writing to the permit or notice holder.

(5) That notification—

(a) must give reasons for the amendment, suspension or revocation;

(b) must state when the amendment, suspension or revocation comes into effect and, in the case of a suspension, state on what date or event the suspension will cease to have effect;

(c) must inform the person on whom the notice is served of the right of appeal under regulation 20; and

(d) may make provision requiring the disposal of any of the organisms to which the permit or notice relates.

Appeals E+W

20.—(1) Subject to regulation 21, a person may appeal to the competent authority against a notice served under regulations 5(2), 7(2)(a) or (b), 7(3), 8(2), 17(1) or (2) or 19(2).

(2) An appellant may within 21 days beginning with the date on which notification was received by the appellant, serve the competent authority with written notice that the appellant wishes to—

(a) appear before and be heard by an independent person appointed by the competent authority; or

(b) provide written representations to the competent authority.

(3) Where the appellant serves notice under paragraph (2)(a)—

(a) the competent authority must appoint an independent person to hear representations and specify a time limit within which representations to that person must be made;

(b) if the appellant requests, the hearing must be in public;

(c) the person appointed must report to the competent authority; and

(d) if the appellant requests, the competent authority must provide a copy of the appointed person's report to the appellant.

(4) Where the appellant serves notice under paragraph (2)(b)—

(a) the competent authority must appoint an independent person to consider the representations; and

(b) the requirements in paragraph (3)(c) and (d) apply.

(5) The competent authority must serve the appellant with a written notice of its final decision and the reasons for it.

Appeal against an enforcement notice E+W

21.—(1) The only grounds for serving a notice of appeal under regulation 20(2) against an enforcement notice are—

(a) that the steps required by the enforcement notice to be taken have been taken;

(b) that the matters stated in the enforcement notice do not constitute a failure to comply with a requirement specified in regulation 17(1) or the circumstances described in regulation 17(2);

(c) that any requirement of the notice is unnecessary for complying with the matters listed in regulation 17(1) or (2) and should be dispensed with.

(2) A notice under regulation 20 appealing against an enforcement notice must be accompanied by a statement in writing—

(a) specifying the grounds on which the appellant is appealing against the enforcement notice; and

(b) providing such further information as may be appropriate.

Offences E+W

22.  A person commits an offence if that person—

(a) makes a statement in an application for a permit knowing or suspecting it to be false;

(b) abandons, releases or allows to escape any aquatic organism, the movement of which took place under a permit or under a notice issued under regulation 7 (movement of an Annex IV species) unless that person can show that all reasonable steps were taken and due diligence exercised to avoid the abandonment, release or escape;

(c) fails to comply with a requirement imposed under regulation 15(5) (seizure of items);

(d) fails to comply with an enforcement notice served under regulation 17(1) or (2) (enforcement notices);

(e) fails to comply with any provision requiring the disposal of aquatic organisms under regulation 19(5)(d) (amendment, suspension or revocation of permit or notice);

(f) fails, without reasonable cause, to give an inspector any assistance or information which the inspector may reasonably require for the purposes of the inspector's functions under these Regulations;

(g) intentionally obstructs an inspector; or

(h) knowingly gives false or misleading information to an inspector.

Penalties E+W

23.  A person guilty of an offence under these Regulations is liable—

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

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

Offences by bodies corporate E+W

24.—(1) If an offence under these Regulations committed by a body corporate is shown—

(a) to have been committed with the consent or connivance of an officer; or

(b) to be attributable to any neglect on the part of an officer,

that officer as well as the body corporate is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2) If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with their functions of management as if that member were a director of the body.

(3) In this regulation “officer”, in relation to a body corporate, means a director, member of the committee of management, chief executive, manager, secretary or other similar officer of the body, or a person purporting to act in any such capacity.