The Reservoirs (Enforcement etc.) (Scotland) Order 2016

Made: 21st March 2016

Coming into force: 1st April 2016

In accordance with section 114(4) of the Reservoirs (Scotland) Act 2011 and section 58(3) of the Regulatory Reform (Scotland) Act 2014, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament[^f00003].

PART 1 — INTRODUCTORY

Citation and commencement

1

This Order may be cited as the Reservoirs (Enforcement etc.) (Scotland) Order 2016 and comes into force on 1st April 2016.

Interpretation

2

• (1) In this Order—

• “the 2015 Order” means the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015[^f00004];

• “the Act” means the Reservoirs (Scotland) Act 2011;

• “by notice” means by notice in writing;

• “expenses recovery notice” is to be construed in accordance with paragraph 1 of Schedule 3;

• “FEM undertaking” is to be construed in accordance with paragraph 4(1) of Schedule 2;

• “further enforcement measure” has the meaning given in paragraph 1(4) of Schedule 2;

• “non-compliance penalty” has the meaning given in paragraph 9(2) of Schedule 2;

• “non-compliance penalty notice” is to be construed in accordance with paragraph 9(4) of Schedule 2;

• “notice of intent” is to be construed in accordance with paragraph 2 of Schedule 2;

• “restoration notice” has the meaning given in paragraph 1(4) of Schedule 2;

• “restraint notice” has the meaning given in paragraph 1(4) of Schedule 2; and

• “stop notice” is to be construed in accordance with paragraph 1(1) of Schedule 1.

• (2) Where anything under this Order is to be done “in writing” that includes an electronic communication, as defined in section 15(1) of the Electronic Communications Act 2000[^f00005], which is capable of being reproduced (and “written” is to be construed accordingly).

PART 2 — ENFORCEMENT MEASURES

Stop notices

3

Schedule 1 makes provision as to the giving by SEPA of stop notices to reservoir managers of controlled reservoirs.

Further enforcement measures

4

Schedule 2 makes provision about the imposition by SEPA on reservoir managers of controlled reservoirs of one or more further enforcement measures.

Recovery of expenses

5

Schedule 3 makes provision for the recovery of expenses reasonably incurred by SEPA in relation to the giving of a stop notice or the imposition of further enforcement measures.

Monetary penalties and undertakings

6

Schedule 4 makes provision which amends the 2015 Order so that the powers conferred by that Order to impose fixed and variable monetary penalties and to accept enforcement undertakings may be exercised in relation to the offence created by paragraph 6 of Schedule 1.

PART 3 — REVIEWS AND APPEALS

Enforcement notices: reviews and appeals

7

Schedule 5 makes provision allowing a reservoir manager to whom notice is given under section 69(2) of the Act (enforcement notice: safety and other measures)—

• (a) to apply to SEPA for a review of its decision to give the notice; and

• (b) to appeal to the Scottish Ministers against the decision to give the notice.

Appeals: further provision

8

Schedule 6 makes further provision in relation to appeals in connection with the following provisions of the Act—

• (a) section 69 (enforcement notice: safety and other measures);

• (b) section 74 (stop notices: procedure);

• (c) section 75 (stop notices: compensation);

• (d) section 83 (further enforcement measures: procedure);

• (e) section 85 (further enforcement measures: enforcement); and

• (f) section 88 (recovery by SEPA of expenses).

PART 4 — MISCELLANEOUS

Notices: supplementary provision

9

• (1) SEPA may, at any time, by notice given to the reservoir manager—

• (a) withdraw (in whole or in part)—

• (i) a stop notice;

• (ii) a restraint notice;

• (iii) a restoration notice;

• (iv) a non-compliance penalty notice; or

• (v) an expenses recovery notice; or

• (b) with the consent of the reservoir manager, amend the steps specified in—

• (i) a stop notice;

• (ii) a restraint notice; or

• (iii) a restoration notice,

so as to reduce the amount of work necessary to comply with the notice or, where applicable, to extend a period specified in the notice for the taking of any such step; or

• (c) reduce the amount specified in—

• (i) a non-compliance penalty notice; or

• (ii) an expenses recovery notice.

• (2) In paragraph (1), “the reservoir manager” means a reservoir manager who was given the stop notice, restraint notice, restoration notice, non-compliance penalty notice or expenses recovery notice in question.

Guidance about the use of powers

10

SEPA must publish guidance about the use of the powers conferred on it by this Order.

Recovery of payments

11

SEPA may recover as a civil debt any—

• (a) non-compliance penalty; or

• (b) expenses required to be paid under an expenses recovery notice.

Payment of penalties

12

Where, by virtue of this Order, SEPA receives any sum in respect of a non-compliance penalty, SEPA must pay it to the Scottish Ministers.

SCHEDULE 1 — STOP NOTICES

Stop notices

1

• (1) SEPA may by notice (a “stop notice”) prohibit a reservoir manager of a controlled reservoir from carrying on an activity specified in the notice until the reservoir manager has taken the steps specified in the notice.

• (2) The stop notice must be given by SEPA to the reservoir manager.

• (3) A stop notice may only be given in relation to a case where the reservoir manager is carrying on the activity and either—

• (a) SEPA reasonably believes that the activity as carried on by the reservoir manager presents a significant risk of causing an uncontrolled release of water from the reservoir; or

• (b) SEPA reasonably believes that the activity as carried on involves or is likely to involve the commission of an offence under one or more of the following provisions of the Act—

• (i) section 42(1)(a) (failure to give notice of proposed relevant works);

• (ii) section 42(1)(b) (failure to appoint construction engineer);

• (iii) section 42(1)(d) (failure to comply with direction as to taking of safety measure in safety report);

• (iv) section 42(1)(e) (failure to comply with preliminary certificate or final certificate); or

• (v) section 52(1)(c) (failure to comply with direction as to taking of measure in inspection report).

Information to be included

2

A stop notice must include information as to—

• (a) the grounds for giving the notice;

• (b) rights of appeal; and

• (c) the consequences of non-compliance.

Appeals

3

• (1) A reservoir manager to whom a stop notice is given may appeal to the Scottish Ministers against the decision of SEPA to issue it.

• (2) The appeal must be made within a period of 21 days beginning with the day on which the stop notice (to which the appeal relates) was given to the reservoir manager under paragraph 1.

• (3) The appeal may be made on any ground including that—

• (a) the decision was based on an error of fact;

• (b) the decision was wrong in law;

• (c) the decision was unreasonable;

• (d) any step specified in the notice is unreasonable;

• (e) the reservoir manager has not committed the offence and would not have committed it had the stop notice not been given; or

• (f) the reservoir manager would not, by reason of any defence, have been liable to be convicted of the offence had the stop notice not been given.

• (4) An appeal under this paragraph does not suspend the stop notice to which it relates.

Completion certificates

4

• (1) Where, after giving a stop notice to a reservoir manager, SEPA is satisfied that the reservoir manager has taken the steps specified in the notice, SEPA must give a certificate to that effect (a “completion certificate”).

• (2) The stop notice ceases to have effect on the giving of a completion certificate.

• (3) The reservoir manager to whom the stop notice is given may at any time apply for a completion certificate.

• (4) SEPA must make a decision as to whether to give a completion certificate before the end of a period of 14 days beginning with the day on which the application for the certificate was made.

• (5) Where SEPA decides to give a completion certificate, it must give the completion certificate to the reservoir manager within a period of 14 days beginning with the day of that decision.

• (6) Where SEPA decides not to give a completion certificate, it must give the reservoir manager notice in writing of that decision within a period of 14 days beginning with the day of that decision.

• (7) The reservoir manager to whom the stop notice is given may appeal to the Scottish Ministers against a decision not to give a completion certificate.

• (8) The appeal must be made within a period of 14 days beginning with the relevant day.

• (9) The appeal may be made on any ground including that—

• (a) the decision was based on an error of fact;

• (b) the decision was wrong in law; or

• (c) the decision was unfair or unreasonable.

• (10) For the purposes of sub-paragraph (7), a failure by SEPA, before the end of a period of 28 days beginning with the day on which the application for the certificate was made, to—

• (a) make a decision as to whether to give the certificate; and

• (b) comply with, as the case may be, sub-paragraph (5) or (6),

is to be treated as a decision not to give the completion certificate in question.

• (11) In sub-paragraph (8), “the relevant day”—

• (a) in a case where sub-paragraph (10) applies, is the first day on which the failure in question is treated as a decision not to give the completion certificate; and

• (b) in other cases, is the day on which the reservoir manager is, in accordance with sub-paragraph (6), given notice of the decision not to give a completion certificate.

Compensation

5

• (1) Subject to sub-paragraph (2), where a reservoir manager suffers loss as the result of the issue of a stop notice, the reservoir manager may make a claim for compensation.

• (2) Sub-paragraph (1) applies only in the case where the loss suffered by the reservoir manager as the result of the issue of a stop notice is attributable to a requirement imposed by the stop notice which is either subsequently—

• (a) withdrawn because SEPA decides that the requirement should not have been imposed when the notice was given; or

• (b) quashed by the Scottish Ministers, on determining an appeal under paragraph 3(1).

• (3) The claim for compensation must—

• (a) be made in writing to SEPA;

• (b) detail the loss suffered by the reservoir manager as the result of the issue of the stop notice;

• (c) specify the amount of compensation claimed in respect of that loss; and

• (d) be made within a period of 2 months beginning with the date on which the loss was suffered.

• (4) Where a reservoir manager makes a claim for compensation, SEPA must, within a period of 28 days beginning with the day on which the claim is made, make a decision—

• (a) as to whether or not to award compensation; and

• (b) if the decision is to award compensation, as to the amount of the compensation.

• (5) SEPA must, within a period of 14 days beginning with the day on which it makes a decision under sub-paragraph (4), give the reservoir manager notice of the decision in writing and where the decision is not to award compensation or, as the case may be, to award an amount of compensation which is less than the amount claimed, it must give reasons for that decision.

• (6) The reservoir manager may appeal to the Scottish Ministers against—

• (a) a decision of SEPA not to award compensation; or

• (b) a decision of SEPA as to the amount of the compensation.

• (7) The appeal must be made within a period (“the appeal period”) of 2 months beginning with the relevant day.

• (8) Where the reservoir manager is, in accordance with sub-paragraph (5), informed of a decision of SEPA to award an amount of compensation and—

• (a) no appeal is made under sub-paragraph (6) within the appeal period; or

• (b) any such appeal is withdrawn before the end of the appeal period,

SEPA must pay to the reservoir manager the amount within a period of 28 days beginning with the day after the last day of the appeal period.

• (9) Where—

• (a) an appeal is made under sub-paragraph (6) within the appeal period; and

• (b) on determining the appeal, the Scottish Ministers—

• (i) affirm a decision of SEPA to award an amount of compensation (“the affirmed amount”); or

• (ii) otherwise direct SEPA to award an amount of compensation (or an alternative amount) (“the directed amount”),

SEPA must pay to the reservoir manager the affirmed amount or, as the case may be, the directed amount, within a period of 28 days beginning with the day after the day on which the Scottish Ministers affirm the decision to award the affirmed amount or, as the case may be, otherwise direct SEPA to award the directed amount.

• (10) For the purposes of sub-paragraph (6), a failure by SEPA, before the end of the period of 42 days beginning with the day on which the claim (to which the appeal relates) is made, to—

• (a) make a decision—

• (i) as to whether or not to award compensation; and

• (ii) if the decision is to award compensation, as to the amount of the compensation; and

• (b) comply with sub-paragraph (5),

is to be treated as a decision of SEPA not to award compensation.

• (11) In sub-paragraph (7), “the relevant day”—

• (a) in a case where sub-paragraph (10) applies, is the first day on which the failure in question is treated as a decision of SEPA not to award compensation; and

• (b) in other cases, is the day on which SEPA, in accordance with sub-paragraph (5), gives the reservoir manager notice of the decision in question.

Offence and penalties

6

Where a reservoir manager to whom a stop notice is given does not comply with it, the reservoir manager commits an offence and is liable on summary conviction—

• (a) in the justice of the peace court, to imprisonment for a term not exceeding 60 days, or to a fine not exceeding level 4 on the standard scale, or to both; or

• (b) in the sheriff court—

• (i) for a first such offence, to imprisonment for a term not exceeding 3 months, or to a fine not exceeding the prescribed sum (within the meaning of section 225(8) of the Criminal Procedure (Scotland) Act 1995[^f00006]), or to both; and

• (ii) for any subsequent such offence, to imprisonment for a term not exceeding 6 months, or to the fine mentioned in sub-head (i), or to both.

Defence

7

It is a defence to a charge in proceedings for an offence under paragraph 6 for the reservoir manager to show both—

• (a) that the failure to comply with the stop notice was as a result of either an accident which could not reasonably have been foreseen or natural cause or force majeure which was exceptional and could not reasonably have been foreseen; and

• (b) that the reservoir manager—

• (i) took all practicable steps to prevent an uncontrolled release of water from the reservoir; and

• (ii) took all practicable steps as soon as was reasonably practicable to rectify the failure; and

• (iii) provided particulars of the failure to SEPA as soon as practicable after the failure arose.

SCHEDULE 2 — FURTHER ENFORCEMENT MEASURES

Power to impose further enforcement measures

1

• (1) SEPA may by notice impose on a reservoir manager of a controlled reservoir one or more further enforcement measures in relation to an offence under section 42(1)(e) (failure to comply with preliminary certificate or final certificate) of the Act.

• (2) A further enforcement measure—

• (a) may be imposed on a reservoir manager only where SEPA is satisfied beyond reasonable doubt that the reservoir manager has committed an offence under section 42(1)(e) of the Act; and

• (b) may not be imposed on a reservoir manager on more than one occasion in relation to the same act or omission.

• (3) A further enforcement measure may be imposed in addition to any requirement referred to in—

• (a) section 65(2) (enforcement notice: appointment of engineer) of the Act; or

• (b) section 69(2) (enforcement notice: safety and other measures) of the Act.

• (4) In this Schedule—

• “further enforcement measure” means— a requirement to take such steps as SEPA may specify, within such period as it may specify, to secure that the position is so far as possible restored to what it would have been if the offence had not been committed; or a requirement to take such steps as SEPA may specify, within such period as it may specify, to secure that the offence does not continue or recur;

• “restoration notice” means a notice under sub-paragraph (1) which imposes a requirement to take such steps as SEPA may specify, within such period as it may specify, to secure (whether in whole or in part) that the position is so far as possible restored to what it would have been if the offence had not been committed; and

• “restraint notice” means a notice under sub-paragraph (1) which imposes a requirement to take such steps as SEPA may specify, within such period as it may specify, to secure (whether in whole or in part) that the offence does not continue or recur.

Notice of intent

2

• (1) Where SEPA proposes to impose a further enforcement measure on a reservoir manager, it must give the reservoir manager a notice in writing of what is proposed (a “notice of intent”).