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8.0 - FIXED PENALTY NOTICE PROVISIONS
8.1 The new provisions for the issue of fixed penalty notices are included in section 113 of the 2008 Act. These controls are implemented by amendment of the EPA. The provisions are as follows:-
113 Enforcement of statutory nuisances: fixed penalty notice
(1) The 1990 Act is further amended as follows.
(2) In section 80 (summary proceedings for statutory nuisances), after subsection (4), insert-
"(4A) Where a local authority have reason to believe that a person has committed an offence under subsection (4) above, the local authority may give that person a notice (a "fixed penalty notice") in accordance with section 80ZA offering the person the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty.".
(3) After that section, insert-
" 80ZA Fixed penalty notice: supplemental
(1) This section applies to a fixed penalty notice given under section 80(4A).
(2) A fixed penalty notice must give reasonable particulars of the circumstances alleged to constitute the offence.
(3) A fixed penalty notice must also state-
(a) the amount of the fixed penalty;
(b) the period within which it may be paid;
(c) the-
(i) person to whom; and
(ii) address at which,
payment may be made;
(d) the method or methods by which payment may be made;
(e) the consequences of not making a payment within the period for payment.
(4) The amount of the fixed penalty under section 80(4A) is-
(a) in the case of a nuisance relating to industrial, trade or business premises, £400;
(b) in any other case, £150.
(5) The period for payment of the fixed penalty is 14 days beginning with the day after the day on which the notice is given.
(6) The local authority may extend the period for paying the fixed penalty in any particular case if they consider it appropriate to do so by sending notice to the person to whom the fixed penalty notice was given.
(7) No proceedings for an offence under section 80(4) may be commenced before the end of the period for payment of the fixed penalty.
(8) In proceedings for an offence under section 80(4), a certificate which-
(a) purports to be signed by or on behalf of a person having responsibility for the financial affairs of the local authority; and
(b) states that payment of the amount specified in the fixed penalty notice was or was not received by the expiry of the period within which that fixed penalty may be paid,
is sufficient evidence of the facts stated.
(9) Where proceedings for an offence in respect of which a fixed penalty notice has been given are commenced, the notice is to be treated as withdrawn.
(10) Any sum received by a local authority under section 80(4A) accrues to that authority.
(11) The Scottish Ministers may, by regulations-
(a) provide that fixed penalty notices may not be given in such circumstances as may be prescribed;
(b) provide for the form of a fixed penalty notice;
(c) provide for the method or methods by which fixed penalties may be paid;
(d) modify subsection (4)(a) or (b) above so as to substitute a different amount (not exceeding level 2 on the standard scale) for the amount for the time being specified there;
(e) provide for the amount of the fixed penalty to be different in different cases or descriptions of case;
(f) modify subsection (5) above so as to substitute a different period for the period for the time being specified there;
(g) provide for the keeping of accounts, and the preparation and publication of statements of account relating to fixed penalties under section 80(4A).
(12) Before making regulations under subsection (11) above, the Scottish Ministers must consult, in so far as it is reasonably practicable to do so, the persons mentioned in subsection (13) below.
(13) Those persons are-
(a) such associations of local authorities; and
(b) such other persons,
as the Scottish Ministers consider appropriate.".
(4) In section 81 (supplementary provisions), for subsection (3), substitute-
"(3) Where an abatement notice has not been complied with, the local authority may, whether or not-
(a) proceedings have been taken for an offence under section 80(4); or
(b) a fixed penalty notice has been given under section 80(4A) in respect of that offence (regardless of whether the fixed penalty notice is accepted),
abate the nuisance and do whatever may be necessary in execution of the abatement notice.".
8.2 It was clear from comments received during consultation on the Public Health Bill that the relatively complex and time consuming enforcement procedures under Part III of the EPA for nuisance cases was not wholly effective and that there were relatively few cases dealt with by the criminal justice system.. There was a perception among local authorities that the system did not provide an adequate deterrent against offending. The creation of a fixed penalty notice for lower level offences seems an appropriate method for resolving many statutory nuisance cases.
8.3 The fixed penalty regime follows a similar procedure to other fixed penalty schemes used for environmental offences. It will assist in minimising resource-intensive litigation in a number of cases, by providing a fast, flexible deterrent.
8.4 Fixed penalty notices do not alter the requirement for local authorities to serve an abatement notice. The existing regime is to provide a statutory requirement for local authorities to specify in abatement notices an indication of the consequences of non-compliance with the requirements of an abatement notice. The effect of this amendment would be to indicate to those upon whom an abatement notice is served that if they fail to comply with its terms, they will be offered a fixed penalty of an amount specified in the notice, or shall be liable to prosecution.
8.5 The use of a fixed penalty will not be suitable in every instance and therefore it is a matter for the local authority to determine where the fixed penalty will be used.
8.6 There will be circumstances in which the local authority will wish to proceed directly to enforcement action under section 80(4) of the EPA, in the event an abatement notice is not complied with. However, it is anticipated that in practice, in the vast majority of cases, local authorities will offer a fixed penalty for non-compliance with the requirements of an abatement notice; and recourse to the existing enforcement proceedings under section 80(4) of the 1990 Act will be the exception to the rule, reserved for exceptional or extreme cases of non-compliance.
8.7 If there is non-compliance with an abatement notice the local authority may offer the person a fixed penalty notice in accordance with section 80(4A). This notice gives the person the opportunity to discharge any liability to conviction for that offence by paying a fixed penalty. Once given in respect of the statutory nuisance specified in the abatement notice, no further fixed penalty notice may be given to the same person during the period specified in the notice. There is no offence of a statutory nuisance. The offence is breach/non-compliance of an abatement notice. The FPN specifies the circumstances alleged to be the offence. So only one FPN may be offered in respect of the particular circumstances alleged to be the breach. No alternate proceedings may be commenced prior to the expiry of the period of payment of an FPN. The fixed penalty amount should reflect the severity of the non-compliance with the abatement notice. The penalties are £400 in respect of industrial, trade or business premises and for all other cases the amount of fixed penalty is £150. There are regulation-making powers available to Scottish Ministers to review these penalties in light of experience.
8.8 Where an abatement notice is served on more than one person, a fixed penalty may be offered to one or more of those persons. Where any person fails to accept an offer of a fixed penalty and fails to pay within the time allotted, the local authority may take proceedings further to section 80(4) of the 1990 Act.
8.9 Any fixed penalty notice must contain-
(a) reasonable particulars of the circumstances alleged to constitute the offence;
(b) the period within which payment must be made;
(c) the amount of the fixed penalty;
(d) the person to whom and the address at which the fixed penalty may be paid (ie, the local authority which issued the abatement notice)
(e) the method or methods by which payment may be made
(f) the consequences of not making a payment within the period for payment.
8.10 The local authority can extend the period for payment of the fixed penalty ( it is set at 14 days by section 80ZA(5) of the EPA and it is suggested that this may only be appropriate where there are special circumstances (and in any case only after discussion with the person responsible). The time period should not be extended as a matter of routine but likewise, extension should not be unreasonably withheld where there are extenuating circumstances.
8.11 .Once the fixed penalty notice is issued, enforcement proceedings cannot be commenced until the 14-day period has expired without payment of the penalty. Where the fixed penalty is paid within the 14-day period, the local authority cannot seek prosecution for the relevant offence under section 80(4) even if the nuisance is not subsequently abated.
8.12 If the fixed penalty notice is paid within the relevant period but the contravention of the abatement notice continues, there are two options available:-
a) The local authority may use its power under section 81(3) to abate the nuisance and do whatever may be necessary in execution of the abatement notice (and then recover any costs reasonably incurred in doing so under,section 81(4)); or
b) if a statutory notice still exists, the local authority shall serve a new abatement notice, and thus a further FPN if this new abatement notice is breached..
8.13 The circumstances that may occur and the process flow sheets for dealing with each case are:-
a) A notice is served requiring the prevention of an occurrence of a nuisance (see Figure 5.1)
b) A notice is served requiring the prevention of the recurrence of a nuisance (see Figure 5.2)
c) A notice is served requiring works to abate the nuisance (see Figure 5.3)
8.14 If the local authority is of opinion that proceedings for an offence under section 80(4) would afford an inadequate remedy they may take proceedings in any court of competent jurisdiction to secure abatement, prohibition or restriction of the nuisance.
8.15 It is suggested that the use of fixed penalty notices should be carefully considered by local authorities given the consequences of payment of the fixed penalty without compliance with the abatement notice. . The following are some issues to be considered:-
a) The fixed penalty route may be a useful alternative to prosecution where there are recurring nuisance activities such as noisy parties and a fixed penalty can be issued for each breach of the abatement notice.
b) In any case where a number of fixed penalty notices have been issued it may be appropriate to determine whether additional action may be necessary.
c) Where compliance is likely but there are delays in securing action the fixed penalty route may be applicable.
d) The fixed penalty route is particularly suitable for lower level offences such as small accumulations of waste.
e) It is anticipated that the fixed penalty route would not be used where a statutory nuisance exists due to a prejudice to health (as there may be unacceptable health consequences inherent in any delay caused by payment of the penalty but no abatement).
f) The fixed penalty may be appropriate for notices requiring prevention of nuisance such as noise from commercial premises
g) In order for the regime to work effectively, there must be the real option of seeking a prosecution where a fixed penalty is not paid and the notice not complied with. This is of course for the Procurator Fiscal to determine. A person would only be required to defend a potential breach of an abatement notice on the grounds of bpm, if he were being prosecuted.
8.16 The local authority will be able to keep any income from fixed penalty fines to enable the local authority to reinvest in their area, similar to the anti-social behaviour noise fixed penalty scheme. However, in line with the new financial arrangements that came into force in April 2008, it is for local authorities to decide whether the income will be retained in the environmental health department or be used for other purposes.
8.17 Example of a Statutory Nuisance Fixed Penalty Notice
FFP No:
XX COUNCIL
ENVIRONMENT SERVICES
STATUTORY NUISANCE OFFENCE
NOTICE OF OPPORTUNITY TO PAY FIXED PENALTY
ENVIRONMENTAL PROTECTION ACT 1990 AS AMENDED BY PUBLIC HEALTH ETC (SCOTLAND) ACT 2008
Alleged Offender-Name: ……………………………..………………………..………………………………………………..
Address: ………………………………………………………………………………………….…...…………………………...
……………………………………………………………………………………………………………..…..………………………
Date of Birth: ……………………………………..….. Place of Birth: ……………………………..……………………………
..
I, ……………………………………….an authorised Officer of XX Council hereby give you notice, in terms of Section 80(4A) of the above Act that at XX..address, together with the ground pertaining thereto (hereinafter referred to as "the subjects") that a statutory nuisance, as defined in Section 79(1)(a) of the said Act, exists and is likely to recur, arising from :
……………………………………………...……………………………………………………………………
At ( Time) ………………………………….… On (Date) ………………………………………...……….
You are required within 14 days of service of this notice to :
a. do XXXXXXX…………………………………………………………………… to abate the nuisance
b. take such other reasonable measures as are sufficient to prevent the continuance or recurrence of the nuisance
This notice is given to you in respect that you are the person to whose act the nuisance is attributable.
This notice offers you the opportunity of discharging any liability to conviction for the offence by paying a fixed penalty of £150 or £400 if commercial premises. Failure to pay and abate the nuisance within 14 days from the day after this notice was issued will result in either a further abatement notice and fixed penalty being issued or the case referred to the Procurator Fiscal.
You have the right of appeal against this Notice to a Sheriff Court within a period of 21 days beginning with date on which it was served.
If you fail to comply with requirements of the Notice, you will be guilty of an offence in terms of Section 80(4A) of the Act and liable on summary conviction to a fine not exceeding £40,000 or level 5 of the standard scale of fines to in Section 289G of the Criminal Procedure (Scotland) Act 1975, together with a further fine of one tenth of that level for each day on which the offence continues after conviction.
If you are not sure of your rights or the implications of this Notice, you may want to seek legal advice.
Methods of payment are detailed at the bottom of this fixed penalty notice.
The person named on this notice may contest the fixed penalty by requesting a hearing within 21 days from the day after this fixed penalty notice was issued. No court proceedings will be brought for the offence unless a notice requesting a hearing is submitted. If you wish to contest this fixed penalty notice you may request a hearing by ticking the box below and returning this notice to; Environment Services, XX Council, and full postal address
Signed: ………………………………………………………….
Date of Issue: ………………………………………
TO BE COMPLETED BY RECIPENT OF FIXED PENALTY NOTICE
I enclose payment of the appropriate fixed penalty
I dispute the validity of this fixed penalty notice and wish to request a court hearing.
If you wish, please state why you are disputing the validity of this notice:
………………………………………………………………………………………………………………..
…………………………………………………………………………………………………………………
Signed: …………………………………………….. Date: ……………………………………….
How to Pay
By Post: You can send a cheque or postal order (payable to "Clerk of Court") together with a contact telephone number and a note of your name and address.
Please also enclose your:
- Fixed Penalty Notice or Fixed Penalty Notice number
8.18. Flowcharts to explain the new Statutory Nuisance FPN system
FIGURE 5.1 STATUTORY NUISANCE PROCEDURE FOR NOTICES REQUIRING THE PREVENTION OF THE OCCURRENCE OF A NUISANCE
*where the nuisance is either injurious to health, where suspension would make the notice of no effect or where the benefits outweigh the costs of compliance
FIGURE 5.2 - PROPOSED STATUTORY NUISANCE PROCEDURE FOR NOTICES REQUIRING THE PREVENTION OF THE RECURRENCE OF A NUISANCE
*where the nuisance is either injurious to health, where suspension would make the notice of no effect or where the benefits outweigh the costs of compliance
FIGURE 5.3 - STATUTORY NUISANCE PROCEDURE FOR NOTICES REQUIRING WORKS TO SECURE ABATEMENT
*where the nuisance is either injurious to health, where suspension would make the notice of no effect or where the benefits outweigh the costs of compliance
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