Circular Economy (Scotland) Act 2024

Fly-tipping offences and removal of waste

Section 11: Fixed penalty notices for fly-tipping offences

36. Under section 33(1) of the Environmental Protection Act 1990 (“the 1990 Act”) fly-tipping is a criminal offence. As an alternative to prosecution a person can be issued a fixed penalty notice under section 33A(1) of the 1990 Act, which offers the possibility of discharging any liability to criminal conviction for fly-tipping by payment of a fixed penalty (currently £500).

37. Section 11 of the Act modifies section 33A of the 1990 Act to increase the maximum amount at which the fixed penalty for a fly-tipping offence can be set in regulations by the Scottish Ministers from level 2 to level 3 on the standard scale, thereby increasing the maximum fixed penalty amount that may be set by way of secondary legislation from £500 presently to £1000 (see section 225 of the Criminal Procedure (Scotland) Act 1995).

38. Additionally, section 33A is amended to give Ministers the ability to provide for different penalty amounts in different cases: for example, a higher penalty amount could be provided for where a previous fixed penalty notice has been issued to the same person; but the maximum amount may not exceed level 3 on the standard scale (currently £1,000 – see section 225 of the Criminal Procedure (Scotland) Act 1995).

Section 12: Removal of unlawfully deposited waste

39. Section 12 of the Act amends section 59 of the Environmental Protection Act 1990 which allows a waste regulation authority or waste collection authority to serve notice requiring an occupier of land to remove waste which has been unlawfully deposited on that land.

40. New section 59(1A) provides that such a notice may only be issued if the authority is satisfied that the occupier deposited or knowingly caused or permitted the deposit of the waste. The civil test of being satisfied on the balance of probabilities will apply.

41. Section 12 further amends section 59(2), (3) and (4) so that appeals against notices are made to the Scottish Ministers (consistent with the approach taken in relation to a number of other environmental appeals) rather than to the sheriff court, and allows the Scottish Ministers to make further provision by regulations about such appeals under section 59(10). Adding reference to section 59(2) to section 114(2)(a)(iii) of the Environment Act 1995, as set out in section 12(2) of the Act, means that the function of determining appeals may be delegated by the Scottish Ministers.

42. Section 59(11) and (12) allows the Scottish Ministers to issue guidance for waste regulation authorities and waste collection authorities about the operation of section 59, and requires authorities to have regard to any such guidance.