The Invasive Alien Species (Enforcement and Permitting) Order 2019

Articles 3, 35, 37, 39 and 40

SCHEDULE 1 U.K. Provisions of the Principal Regulation

Commencement Information

I1 Sch. 1 in force at 1.12.2019, see art. 1(1)

Table 1

Provision of the Principal Regulation	Subject matter
Article 7(1)(a) to (h)	Invasive alien species shall not be intentionally—
	-brought into the territory of [F1 the Union] [F1 Great Britain], including transit under customs supervision; - kept, including in contained holding;
	- bred, including in contained holding;
	- transported to, from or within [F1 the Union] [F1 Great Britain], except for the transportation of species to facilities in the context of eradication;
	- placed on the market;
	- used or exchanged;
	- grown, cultivated or permitted to reproduce, including in contained holding;
	- released into the environment.

Textual Amendments

F1 Words in Sch. 1 Table 1 substituted (E.W.S.) (31.12.2020) by The Animal Health, Invasive Alien Species, Plant Breeders’ Rights and Seeds (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/1220), regs. 1(2)(d), 7(6)(a) (as amended by S.I. 2020/1590, regs. 1(1)(b)(i), 7(2)(3)(d)); 2020 c. 1, Sch. 5 para. 1(1)

Table 2

Provision of the Principal Regulation	Conditions
Article 8 paragraph 2	(a) the invasive alien species [F2 of Union concern] [F2 of special concern] is kept in and handled in contained holding in accordance with Article 8(3);
	(b) the activity is to be carried out by appropriately qualified personnel as laid down by the [F3 competent authorities] [F3 appropriate authority];
	(c) transport to and from contained holding is carried out under conditions that preclude escape of the invasive alien species as established by the permit;
	(d) in the case of invasive alien species [F2 of Union concern] [F2 of special concern] that are animals, they are marked or otherwise effectively identified where appropriate, using methods that do not cause avoidable pain, distress or suffering;
	(e) the risk of escape or spread or removal is effectively managed, taking into account the identity, biology and means of dispersal of the species, the activity and the contained holding envisaged, the interaction with the environment and other relevant factors;
	(f) a continuous surveillance system and a contingency plan covering possible escape or spread is drawn up by the applicant, including an eradication plan. The contingency plan is to be approved by the [F4 competent authority] [F4 appropriate authority]. If an escape or spread occurs, the contingency plan is to be implemented immediately and the permit may be withdrawn, temporarily or permanently.
	The permit is to be limited to a number of invasive alien species and specimens that does not exceed the capacity of the contained holding. It must include the restrictions necessary to mitigate the risk of escape or spread of the species concerned. It must accompany the invasive alien species to which it refers at all times when those species are kept, brought into and transported within [F5 the Union] [F5 Great Britain].
Article 8 paragraph 3	3. Specimens are to be considered to be kept in contained holding if the following conditions are fulfilled:
	(a) the specimens are physically isolated and they cannot escape or spread or be removed by unauthorised persons from the holdings where they are kept;
	(b) cleaning, waste handling and maintenance protocols ensure that no specimens or reproducible parts can escape, spread or be removed by unauthorised persons;
	(c) the removal of the specimens from the holdings, disposal or destruction or humane cull is done in such way as to exclude propagation or reproduction outside of the holdings.

Textual Amendments

F2 Words in Sch. 1 Table 2 substituted (E.W.S.) (31.12.2020) by The Animal Health, Invasive Alien Species, Plant Breeders’ Rights and Seeds (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/1220), regs. 1(2)(d), 7(6)(b)(i) (as amended by S.I. 2020/1590, regs. 1(1)(b)(i), 7(2)); 2020 c. 1, Sch. 5 para. 1(1)

F3 Words in Sch. 1 Table 2 substituted (E.W.S.) (31.12.2020) by The Animal Health, Invasive Alien Species, Plant Breeders’ Rights and Seeds (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/1220), regs. 1(2)(d), 7(6)(b)(ii) (as amended by S.I. 2020/1590, regs. 1(1)(b)(i), 7(2)); 2020 c. 1, Sch. 5 para. 1(1)

F4 Words in Sch. 1 Table 2 substituted (E.W.S.) (31.12.2020) by The Animal Health, Invasive Alien Species, Plant Breeders’ Rights and Seeds (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/1220), regs. 1(2)(d), 7(6)(b)(iii)(aa) (as amended by S.I. 2020/1590, regs. 1(1)(b)(i), 7(2)); 2020 c. 1, Sch. 5 para. 1(1)

F5 Words in Sch. 1 Table 2 substituted (E.W.S.) (31.12.2020) by The Animal Health, Invasive Alien Species, Plant Breeders’ Rights and Seeds (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/1220), regs. 1(2)(d), 7(6)(b)(iii)(bb) (as amended by S.I. 2020/1590, regs. 1(1)(b)(i), 7(2)(3)(d)); 2020 c. 1, Sch. 5 para. 1(1)

Article 3

SCHEDULE 2 U.K. Animals and plants to which Articles 3(2) to (4) apply

PART 1 U.K. Animals to which the offence in article 3(2) applies

Commencement Information

I2 Sch. 2 Pt. 1 in force at 1.12.2019, see art. 1(1)

1 The common name or names given in the first column are included by way of guidance only; in the event of any dispute or proceedings, the common name or names will not be taken into account.
Common Name1	Scientific Name
Crab, Chinese Mitten	Eriocheir sinensis
Crayfish, Red Swamp	Procambarus clarkii
Crayfish, Signal	Pacifastacus leniusculus
Crayfish, Spiny-cheek	Orconectes limosus
Deer, Muntjac	Muntiacus reevesi
Duck, Ruddy	Oxyura jamaicensis
[F6 Flatworm, New Zealand	Arthurdendyus triangulates]
Goose, Egyptian	Alopochen aegyptiacus
[F7 Pumpkinseed	Lepomis gibbosus]
Squirrel, Grey	Sciurus carolinensis

Textual Amendments

F6 Words in Sch. 2 Pt. 1 Table inserted (E.W.) (4.5.2021) by The Animals, Aquatic Animal Health, Invasive Alien Species, Plant Propagating Material and Seeds (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1388), regs. 1(2)(b), 41(2)(a)

F7 Words in Sch. 2 Pt. 1 Table inserted (E.W.) (4.5.2021) by The Animals, Aquatic Animal Health, Invasive Alien Species, Plant Propagating Material and Seeds (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1388), regs. 1(2)(b), 41(2)(b)

PART 2 U.K. Plants to which the offence in article 3(3) applies

Commencement Information

I3 Sch. 2 Pt. 2 in force at 1.12.2019, see art. 1(1)

1 The common name or names given in the first column are included by way of guidance only; in the event of any dispute or proceedings, the common name or names will not be taken into account.
Common Name1	Scientific Name
Balsam, Himalayan	Impatiens glandulifera
Fanwort (otherwise known as Carolina Water-Shield)	Cabomba caroliniana
Hogweed, Giant	Heracleum mantegazzianum
Hyacinth, Water	Eichhornia crassipes
Parrot's feather	Myriophyllum aquaticum
Pennywort, Floating	Hydrocotyle ranunculoides
Primrose, Floating Water (otherwise known as Floating Primrose-willow)	Ludwigia peploides
Primrose, Water	Ludwigia grandiflora
Rhubarb, Giant (otherwise known as Chilean Rhubarb)	Gunnera tinctoria
[F8 Salvinia Moss	Salvinia molesta (otherwise known as salvinia adnata)]
Waterweed, Curly	Lagarosiphon major
Waterweed, Nuttall's	Elodea nuttallii.

Textual Amendments

F8 Words in Sch. 2 Pt. 2 Table inserted (E.W.) (4.5.2021) by The Animals, Aquatic Animal Health, Invasive Alien Species, Plant Propagating Material and Seeds (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1388), regs. 1(2)(b), 41(3)

PART 3 U.K. Species to which the offences in article 3(4) apply

Commencement Information

I4 Sch. 2 Pt. 3 in force at 1.12.2019, see art. 1(1)

1 The common name or names given in the first column are included by way of guidance only; in the event of any dispute or proceedings, the common name or names will not be taken into account.
Common Name1	Scientific Name
Parrot's Feather	Myriophyllum aquaticum
Pennywort, Floating	Hydrocotyle ranunculoides
Primrose, Floating Water	Ludwigia peploides
Primrose, Water	Ludwigia grandiflora.

Article 34

SCHEDULE 3 U.K. Civil sanctions

PART 1 U.K. Power to impose civil sanctions

The regulator U.K.

1.  In this Schedule, “ the regulator” means—

(a) Natural England in relation to—

(i) England;

(ii) the offshore marine area;

(iii) offences relating to imports into or exports from the United Kingdom;

(b) the Natural Resources Body for Wales in relation to Wales unless sub-paragraph (a)(iii) applies.

Commencement Information

I5 Sch. 3 para. 1 in force at 1.12.2019, see art. 1(1)

Compliance notice U.K.

2.—(1) This paragraph applies where the regulator is satisfied on the balance of probabilities that a person has committed an offence under Part 2 of this Order.

(2) The regulator may by notice (“a compliance notice”) impose on that person a requirement to take such steps as the regulator may specify, within such period as it may specify, to secure that the offence does not continue or recur.

(3) A compliance notice may not be imposed on more than one occasion in relation to the same act or omission.

Commencement Information

I6 Sch. 3 para. 2 in force at 1.12.2019, see art. 1(1)

Restoration notice U.K.

3.—(1) This paragraph applies where the regulator is satisfied on the balance of probabilities that a person has committed an offence under Part 2 of this Order.

(2) The regulator may by notice (“a restoration notice”) impose on that person a requirement to take such steps as the regulator 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.

(3) A restoration notice may not be imposed on more than one occasion in relation to the same act or omission.

Commencement Information

I7 Sch. 3 para. 3 in force at 1.12.2019, see art. 1(1)

Imposition of a fixed monetary penalty U.K.

4.—(1) This paragraph applies where the regulator is satisfied on the balance of probabilities that a person has committed an offence under Part 2 of this Order.

(2) The regulator may by notice impose on that person a requirement to pay a monetary penalty to the regulator of £1000 where the person is an individual and £3000 where the person is a body corporate, partnership or unincorporated association (“a fixed monetary penalty”).

(3) A fixed monetary penalty may not be imposed on more than one occasion in relation to the same act or omission.

(4) The regulator may recover any fixed monetary penalty imposed under this paragraph as if payable under an order of the court.

(5) A fixed monetary penalty paid to the regulator under this paragraph must be paid into—

(a) the Consolidated Fund, where the regulator is Natural England; and

(b) the Welsh Consolidated Fund, where the regulator is the Natural Resources Body for Wales.

Commencement Information

I8 Sch. 3 para. 4 in force at 1.12.2019, see art. 1(1)

Imposition of a variable monetary penalty U.K.

5.—(1) This paragraph applies where the regulator is satisfied on the balance of probabilities that a person has committed an offence under Part 2 of this Order.

(2) The regulator may by notice impose on that person a requirement to pay a monetary penalty to the regulator in such amount as it may determine (“a variable monetary penalty”).

(3) A variable monetary penalty may not be imposed on more than one occasion in relation to the same act or omission.

(4) The amount of a variable monetary penalty must not exceed £250,000.

(5) Before serving a notice relating to a variable monetary penalty, the regulator may require the person on whom it is to be served to provide such information as is reasonable to establish the amount of any financial benefit arising as a result of the offence.

(6) The regulator may recover any variable monetary penalty imposed under this paragraph as if payable under an order of the court.

(7) A variable monetary penalty paid to the regulator under this paragraph must be paid into—

(a) the Consolidated Fund, where the regulator is Natural England; and

(b) the Welsh Consolidated Fund, where the regulator is the Natural Resources Body for Wales.

Commencement Information

I9 Sch. 3 para. 5 in force at 1.12.2019, see art. 1(1)

Notice of intent U.K.

6.—(1) If the regulator proposes to serve on a person a compliance notice, a restoration notice or a notice imposing a fixed or variable monetary penalty under this Part, it must serve on that person a notice of what is proposed (a “notice of intent”).

(2) The notice of intent must include—

(a) the grounds for serving the proposed notice;

(b) the requirements of the proposed notice and, in the case of a penalty, the amount to be paid;

(c) in the case of a fixed monetary penalty, a statement that liability for the penalty can be discharged by paying 50% of the penalty within 28 days beginning with the day on which the notice was received and information on the effect of such a discharge payment; and

(d) information as to—

(i) the right to make representations and objections within 28 days beginning with the day on which the notice of intent was received; and

(ii) the circumstances in which the regulator may not serve the proposed notice.

Commencement Information

I10 Sch. 3 para. 6 in force at 1.12.2019, see art. 1(1)

Combination of penalties U.K.

7.—(1) The regulator may not serve a notice of intent relating to a fixed monetary penalty if, in relation to the same offence—

(a) a compliance notice, restoration notice or stop notice has been served on that person (see paragraphs 2, 3, and 18);

(b) a variable monetary penalty has been imposed on that person (see paragraph 5); or

(c) a third party or enforcement undertaking has been accepted from that person (see paragraphs 10 and 24).

(2) The regulator may not serve a notice of intent relating to a compliance notice, a restoration notice, or a variable monetary penalty, or serve a stop notice, on any person if, in relation to the same offence—

(a) a fixed monetary penalty has been imposed on that person; or

(b) that person has discharged liability for a fixed monetary penalty following service of a notice of intent to impose that penalty.

Commencement Information

I11 Sch. 3 para. 7 in force at 1.12.2019, see art. 1(1)

Discharge of liability – fixed monetary penalties U.K.

8.  A fixed monetary penalty is discharged if a person who receives a notice of intent pays 50% of the amount of the penalty within 28 days beginning with the day on which the notice was received.

Commencement Information

I12 Sch. 3 para. 8 in force at 1.12.2019, see art. 1(1)

Making representations and objections U.K.

9.  A person on whom a notice of intent is served may within 28 days beginning with the day on which the notice is received make written representations and objections to the regulator in relation to the proposed service of a compliance notice, restoration notice or notice imposing a fixed or variable monetary penalty.

Commencement Information

I13 Sch. 3 para. 9 in force at 1.12.2019, see art. 1(1)

Third party undertakings U.K.

10.—(1) A person on whom a notice of intent relating to a compliance notice, a restoration notice or a variable monetary penalty is served may offer an undertaking as to action to be taken by that person (including the payment of a sum of money) to benefit any third party affected by the offence (“a third party undertaking”).

(2) The regulator may accept or reject a third party undertaking.

(3) The regulator must take into account any third party undertaking that it accepts in its decision as to whether or not to serve a final notice, and, if it serves a notice imposing a variable monetary penalty, the amount of the penalty.

Commencement Information

I14 Sch. 3 para. 10 in force at 1.12.2019, see art. 1(1)

Final notice U.K.

11.—(1) After the end of the period for making representations and objections, the regulator must decide whether to impose the requirements described in the notice of intent, with or without modifications.

(2) Where the regulator decides to impose a requirement, the notice imposing it (the “final notice”) must comply with paragraph 12 (for compliance or restoration notices) or 13 (for fixed or variable monetary penalties).

(3) The regulator may not impose a final notice on a person where it is satisfied that the person would not, by reason of any defence, permit or licence be liable to be convicted of the offence to which the notice relates.

(4) Where the regulator serves a final notice relating to a fixed monetary penalty in respect of any offence, the regulator may not in relation to that offence serve—

(a) a compliance notice;

(b) a restoration notice;

(c) a notice imposing a variable monetary penalty; or

(d) a stop notice.

(5) This paragraph does not apply to a person who has discharged a fixed monetary penalty in accordance with paragraph 8.

Commencement Information

I15 Sch. 3 para. 11 in force at 1.12.2019, see art. 1(1)

Contents of final notice: compliance and restoration notices U.K.

12.  A final notice relating to a compliance notice or a restoration notice must include information as to—

(a) the grounds for serving the notice;

(b) what compliance or restoration is required and the period within which it must be completed;

(c) rights of appeal; and

(d) the consequences of failing to comply with the notice.

Commencement Information

I16 Sch. 3 para. 12 in force at 1.12.2019, see art. 1(1)

Contents of final notice: fixed and variable monetary penalties U.K.

13.  A final notice relating to a fixed or variable monetary penalty must include information as to—

(a) the grounds for imposing the penalty;

(b) the amount to be paid;

(c) how payment may be made;

(d) the period within which payment must be made (“the payment period”), which must be not less than 56 days;

(e) in the case of a fixed monetary penalty, details of the early payment discount (see paragraph 14) and late payment penalties (see paragraph 16(2) and (3));

(f) rights of appeal; and

(g) the consequences of failing to comply with the notice.

Commencement Information

I17 Sch. 3 para. 13 in force at 1.12.2019, see art. 1(1)

Fixed monetary penalty: discount for early payment U.K.

14.  If a person who was served with a notice of intent relating to a proposed fixed monetary penalty made representations or objections concerning that notice within the time limit specified in paragraph 9, that person may discharge the final notice by paying 50% of the final penalty within 28 days beginning with the day on which the final notice was received.

Commencement Information

I18 Sch. 3 para. 14 in force at 1.12.2019, see art. 1(1)

Appeals against a final notice U.K.

15.—(1) The person on whom a final notice is served may appeal against it.

(2) The grounds for appeal are—

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

(b) that the decision was wrong in law;

(c) in the case of a variable monetary penalty, that the amount of the penalty is unreasonable;

(d) in the case of a non-monetary requirement, that the nature of the requirement is unreasonable;

(e) that the decision was unreasonable for any other reason;

(f) that the decision was wrong for any other reason.

Commencement Information

I19 Sch. 3 para. 15 in force at 1.12.2019, see art. 1(1)

Fixed monetary penalty: non-payment within the stated payment period U.K.

16.—(1) This paragraph applies to a final notice relating to a fixed monetary penalty.

(2) If the final penalty is not paid within the stated payment period, the amount payable is increased by 50%.

(3) In the case of an appeal which is unsuccessful, the penalty is payable within 28 days of the determination of the appeal, and if it is not paid within 28 days, the amount of the penalty is increased by 50%.

Commencement Information

I20 Sch. 3 para. 16 in force at 1.12.2019, see art. 1(1)

Criminal proceedings U.K.

17.—(1) If—

(a) a compliance notice or restoration notice is served on any person,

(b) a third party undertaking is accepted from any person,

(c) a notice imposing a variable monetary penalty is served on any person, or

(d) a fixed monetary penalty is served on any person,

that person may not at any time be convicted of an offence under Part 2 of this Order in respect of the act or omission giving rise to the compliance notice, restoration notice, third party undertaking, variable monetary penalty or fixed monetary penalty, except in a case falling within paragraph (1)(a) or (b) (and not also falling within paragraph (1)(c)) where the person fails to comply with the compliance notice, restoration notice or third party undertaking (as the case may be).

(2) Criminal proceedings for offences to which a notice or third party undertaking in sub-paragraph (1) relates may be instituted at any time up to 6 months from the date when the regulator notifies the person against whom the proceedings are to be taken that the person has failed to comply with that notice or undertaking.

Commencement Information

I21 Sch. 3 para. 17 in force at 1.12.2019, see art. 1(1)

PART 2 U.K. Stop notices

Stop notices U.K.

18.—(1) The regulator may serve a notice (a “stop notice”) on any person prohibiting that person from carrying on an activity specified in the notice until the person has taken the steps specified in the notice.

(2) A stop notice may only be served where—

(a) the person is carrying on the activity or the regulator reasonably believes that the person is likely to carry on the activity;

(b) the regulator reasonably believes that the activity is causing, or is likely to cause, economic or environmental harm, or adverse effects to human health; and

(c) the regulator reasonably believes that the activity carried on, or likely to be carried on, by that person involves or is likely to involve the commission of an offence under Part 2 of this Order.

(3) The steps referred to in sub-paragraph (1) must be steps to eliminate the risk of the offence being committed.

Commencement Information

I22 Sch. 3 para. 18 in force at 1.12.2019, see art. 1(1)

Contents of a stop notice U.K.

19.  A stop notice must include information as to—

(a) the grounds for serving the stop notice;

(b) the activity which is prohibited;

(c) the steps the person must take to comply with the stop notice and the period within which they must be completed;

(d) rights of appeal; and

(e) the consequences of failing to comply with the notice.

Commencement Information

I23 Sch. 3 para. 19 in force at 1.12.2019, see art. 1(1)

Appeals U.K.

20.—(1) The person on whom a stop notice is served may appeal against the decision to serve it.

(2) The grounds for appeal are—

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

(b) that the decision was wrong in law;

(c) that the decision was unreasonable;

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

(e) that the person has not committed the offence and would not have committed it had the stop notice not been served;

(f) that the person would not, by reason of any defence, permit or licence have been liable to be convicted of the offence had the stop notice not been served;

(g) that the decision was wrong for any other reason.

Commencement Information

I24 Sch. 3 para. 20 in force at 1.12.2019, see art. 1(1)

Completion certificates U.K.

21.—(1) The regulator must issue a certificate (a “completion certificate”) if, after service of a stop notice, the regulator is satisfied that the person on whom it was served has taken the steps specified in the notice.

(2) A stop notice ceases to have effect on the issue of a completion certificate.

(3) The regulator may require the person on whom the stop notice was served to provide sufficient information to determine that the steps specified in the notice have been taken.

(4) A person on whom a stop notice is served may at any time apply for a completion certificate.

(5) The regulator must decide whether to issue a completion certificate and give written notice of the decision to the applicant (including information as to the right of appeal) within 14 days of the application.

(6) The applicant may appeal against a decision not to issue a completion certificate on the grounds that the decision—

(a) was based on an error of fact;

(b) was wrong in law;

(c) was unfair or unreasonable;

(d) was wrong for any other reason.

Commencement Information

I25 Sch. 3 para. 21 in force at 1.12.2019, see art. 1(1)

Compensation U.K.

22.—(1) The regulator must compensate a person for loss suffered as the result of the service of the stop notice or the refusal of a completion certificate if that person has suffered loss as a result of the notice or refusal and—

(a) the stop notice is subsequently withdrawn or amended by the regulator because the decision to serve it was unreasonable or any step specified in the notice was unreasonable;

(b) the regulator is in breach of its statutory obligations;

(c) the person successfully appeals against the stop notice and the First-tier Tribunal finds that the service of the notice was unreasonable; or

(d) the person successfully appeals against the refusal of a completion certificate and the First-tier Tribunal finds that the refusal was unreasonable.

(2) A person may appeal against a decision not to award compensation or the amount of compensation on the grounds that—

(a) the regulator's decision was unreasonable;

(b) the amount offered was based on incorrect facts; or

(c) the decision was wrong for any other reason.

Commencement Information

I26 Sch. 3 para. 22 in force at 1.12.2019, see art. 1(1)

Offences U.K.

23.  If a person on whom a stop notice is served does not comply with it within the time limit specified in the notice, the person is guilty of an offence and liable on summary conviction to a fine.

Commencement Information

I27 Sch. 3 para. 23 in force at 1.12.2019, see art. 1(1)

PART 3 U.K. Enforcement undertakings

Enforcement undertakings U.K.

24.  Where the regulator has reasonable grounds to suspect that a person has committed an offence under Part 2 of this Order, the regulator may accept a written undertaking (an “enforcement undertaking”) given by that person to take such action as may be specified in the undertaking within such period as may be specified.

Commencement Information

I28 Sch. 3 para. 24 in force at 1.12.2019, see art. 1(1)

Contents of an enforcement undertaking U.K.

25.—(1) An enforcement undertaking must specify—

(a) action to be taken by the person to secure that the offence does not continue or recur;

(b) action 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

(c) action (including the payment of a sum of money) to be taken by the person to benefit any person affected by the offence.

(2) It must specify the period within which the action must be completed.

(3) It must include—

(a) a statement that the undertaking is made in accordance with this Schedule;

(b) the terms of the undertaking; and

(c) information as to how and when the person is to be considered to have discharged the undertaking.

(4) The enforcement undertaking may be varied, or the period within which the action must be completed may be extended, if both the regulator and the person who gave the undertaking agree in writing.

Commencement Information

I29 Sch. 3 para. 25 in force at 1.12.2019, see art. 1(1)

Acceptance of an enforcement undertaking U.K.

26.—(1) If the regulator has accepted an enforcement undertaking from a person—

(a) that person may not at any time be convicted of the offence in respect of the act or omission to which the undertaking relates; and

(b) the regulator may not serve on that person a compliance notice, restoration notice or stop notice, or impose a fixed or variable monetary penalty on that person, in respect of that act or omission.

(2) Paragraph (1) does not apply if the person who gave the undertaking has failed to comply with it or any part of it.

Commencement Information

I30 Sch. 3 para. 26 in force at 1.12.2019, see art. 1(1)

Discharge of an enforcement undertaking U.K.

27.—(1) If the regulator is satisfied that an enforcement undertaking has been complied with, it must issue a certificate (“a discharge certificate”) to that effect.

(2) An enforcement undertaking ceases to have effect on the issue of a discharge certificate.

(3) The regulator may require the person who has given the undertaking to provide sufficient information to determine that the undertaking has been complied with.

(4) The person who gave the undertaking may at any time apply for a discharge certificate.

(5) The regulator must decide whether to issue a discharge certificate, and give written notice of the decision to the applicant (including information as to the right of appeal), within 14 days of such an application.

(6) The applicant may appeal against a decision not to issue a discharge certificate on the grounds that the decision—

(a) was based on an error of fact;

(b) was wrong in law;

(c) was unfair or unreasonable;

(d) was wrong for any other reason.

Commencement Information

I31 Sch. 3 para. 27 in force at 1.12.2019, see art. 1(1)

Inaccurate, incomplete or misleading information U.K.

28.—(1) A person who has given inaccurate, misleading or incomplete information in relation to an enforcement undertaking is to be regarded as not having complied with it.

(2) The regulator may by notice in writing revoke a discharge certificate issued under paragraph 27 if it was issued on the basis of inaccurate, incomplete or misleading information.

Commencement Information

I32 Sch. 3 para. 28 in force at 1.12.2019, see art. 1(1)

Non-compliance with an enforcement undertaking U.K.

29.—(1) If a person does not comply with an enforcement undertaking, the regulator may, in the case of an offence committed under Part 2 of this Order —

(a) serve a compliance notice, restoration notice, variable monetary penalty, stop notice or non-compliance penalty; or

(b) bring criminal proceedings.

(2) If a person has complied partly but not fully with an undertaking, that partial compliance must be taken into account in the imposition of any criminal or other sanction on the person.

(3) Criminal proceedings for offences to which an enforcement undertaking relates may be instituted at any time up to 6 months from the date on which the regulator notifies the person that the person has failed to comply with that undertaking.

[F9 (4) The provisions in paragraphs 30(2) to (7) and 31 apply to non-compliance penalties served pursuant to this paragraph as they apply to such penalties served pursuant to paragraph 30(1).

(5) For the purposes of sub-paragraph (4), the references to “compliance notice, restoration notice or third party undertaking” in paragraph 30(2) and (5) are to be read as a reference to “enforcement undertaking”]

Textual Amendments

F9 Sch. 3 para. 29(4)(5) inserted (E.W.) (31.12.2020) by The Animal Welfare and Invasive Non-native Species (Amendment etc.) (EU Exit) Regulations 2020 (S.I. 2020/1590), regs. 1(1)(b)(ii), 9(5)

Commencement Information

I33 Sch. 3 para. 29 in force at 1.12.2019, see art. 1(1)

PART 4 U.K. Non-compliance penalties

Non-compliance penalties U.K.

30.—(1) If a person fails to comply with a compliance notice, restoration notice or third party undertaking, the regulator may, irrespective of whether a variable monetary penalty was also imposed, serve a notice on that person imposing a monetary penalty (“a non-compliance penalty”).

(2) The amount of the non-compliance penalty must be determined by the regulator, and must be a percentage of the costs of fulfilling the remaining requirements of the compliance notice, restoration notice or third party undertaking.

(3) The percentage must be determined by the regulator having regard to all the circumstances of the case and may, if appropriate, be 100%.

(4) The notice must include information as to—

(a) the grounds for imposing the non-compliance penalty;

(b) the amount to be paid;

(c) how payment must be made;

(d) the period in which payment must be made, which must not be less than 28 days;

(e) rights of appeal;

(f) the consequences of failure to comply with the notice; and

(g) any circumstances in which the regulator may reduce the amount of the penalty.

(5) If the requirements of the compliance notice, restoration notice or third party undertaking are fulfilled before the time specified for payment of the non-compliance penalty, the penalty is not payable.

(6) Following expiry of the specified payment period, the regulator may recover the non-compliance penalty as if payable under an order of the court.

(7) A non-compliance penalty paid to the regulator under this paragraph must be paid into—

(a) the Consolidated Fund, where the regulator is Natural England; and

(b) the Welsh Consolidated Fund, where the regulator is the Natural Resources Body for Wales.

Commencement Information

I34 Sch. 3 para. 30 in force at 1.12.2019, see art. 1(1)

Appeals U.K.

31.—(1) The person on whom the notice imposing the non-compliance penalty is served may appeal against it.

(2) The grounds of appeal are—

(a) that the decision to serve the notice was based on an error of fact;

(b) that the decision was wrong in law;

(c) that the decision was unfair or unreasonable for any reason;

(d) that the amount of the penalty is unreasonable;

(e) that the decision was wrong for any other reason.

Commencement Information

I35 Sch. 3 para. 31 in force at 1.12.2019, see art. 1(1)

PART 5 U.K. Withdrawal and amendment of notices

Withdrawing or amending a notice U.K.

32.  The regulator may at any time in writing—

(a) withdraw a compliance notice, restoration notice or stop notice, or amend the steps specified in such a notice in order to reduce the amount of work necessary to comply with the notice;

(b) withdraw a notice imposing a fixed monetary penalty; or

(c) withdraw a notice imposing a variable monetary penalty or a non-compliance penalty, or reduce the amount of the penalty specified in the notice.

Commencement Information

I36 Sch. 3 para. 32 in force at 1.12.2019, see art. 1(1)

PART 6 U.K. Costs recovery

Recovery of enforcement costs U.K.

33.—(1) The regulator may give a costs recovery notice if any of the conditions in sub-paragraph (3) are met.

(2) A cost recovery notice is a notice requiring the person to pay the regulator's costs.

(3) The conditions are that that the regulator has—

(a) imposed on the person a compliance notice under paragraph 2;

(b) imposed on the person a restoration notice under paragraph 3;

(c) imposed on the person a variable monetary penalty under paragraph 5; or

(d) served on the person a stop notice under paragraph 18.

(4) In sub-paragraph (2), the reference to costs is a reference to any costs relating to preparing and giving the compliance notice, restoration notice, variable monetary penalty, or stop notice, as the case may be, and includes a reference to the costs of any related investigation or expert advice, (including legal advice).

(5) The costs recovery notice must include information as to—

(a) the amount of the costs which must be paid;

(b) the period in which payment must be made, which must not be less than 28 days;

(c) how payment must be made;

(d) the consequences of failing to make payment within the specified payment period; and

(e) rights of appeal.

(6) Following expiry of the specified payment period, the regulator may recover the costs referred to in the costs recovery notice as if payable under an order of the court.

(7) The person to whom the costs recovery notice is given may appeal against it.

(8) The grounds of appeal are—

(a) that the decision to serve the notice was based on an error of fact;

(b) that the decision was wrong in law;

(c) that the decision was unfair or unreasonable for any reason;

(d) that the amount of the penalty was unreasonable;

(e) that the decision was wrong for any other reason.

Commencement Information

I37 Sch. 3 para. 33 in force at 1.12.2019, see art. 1(1)

PART 7 U.K. Appeals

Appeals U.K.

34.—(1) Any appeal under this Schedule must be made to the First-tier Tribunal.

(2) In any appeal the Tribunal must determine the standard of proof.

(3) An appeal against a notice served under this Schedule (other than a stop notice) suspends the effect of the notice appealed against until the appeal is determined or withdrawn.

(4) The Tribunal may, in relation to the imposition of a requirement or service of a notice—

(a) withdraw the requirement or notice;

(b) confirm the requirement or notice;

(c) vary the requirement or notice;

(d) take such steps as the regulator could take in relation to the act or omission giving rise to the requirement or notice;

(e) remit the decision whether to confirm the requirement or notice, or any matter relating to that decision, to the regulator.

Commencement Information

I38 Sch. 3 para. 34 in force at 1.12.2019, see art. 1(1)

PART 8 U.K. Guidance and publicity

Guidance as to use of civil sanctions U.K.

35.—(1) The regulator must publish guidance about its use of civil sanctions.

(2) The regulator must revise and update the guidance where appropriate.

(3) The regulator must have regard to the guidance or revised and updated guidance in exercising its functions.

(4) In the case of guidance about compliance notices, restoration notices, fixed monetary penalties, variable monetary penalties, stop notices and non-compliance penalties, the guidance must contain information as to—

(a) the circumstances in which the civil sanction is likely to be imposed;

(b) the circumstances in which it is not likely to be imposed;

(c) where relevant, rights to make representations and objections;

(d) rights of appeal; and

(e) in the case of guidance about variable monetary penalties and non-compliance penalties, the matters likely to be taken into account by the regulator in determining the amount of the penalty (including voluntary reporting by a person of the person's own non-compliance).

(5) In the case of guidance about enforcement undertakings, the guidance must contain information as to—

(a) the circumstances in which the regulator is likely to accept an enforcement undertaking; and

(b) the circumstances in which the regulator is not likely to accept an enforcement undertaking.

Commencement Information

I39 Sch. 3 para. 35 in force at 1.12.2019, see art. 1(1)

Consultation on guidance U.K.

36.  The regulator must consult such persons as it considers appropriate before publishing—

(a) any guidance; or

(b) any significant revisions or updates to guidance which has already been published.

Commencement Information

I40 Sch. 3 para. 36 in force at 1.12.2019, see art. 1(1)

Publication of enforcement action U.K.

37.—(1) The regulator must publish annually—

(a) the cases in which civil sanctions have been imposed;

(b) where the civil sanction is a compliance notice, a restoration notice or variable monetary penalty, the cases in which a third party undertaking has been accepted;

(c) the cases in which an enforcement undertaking has been accepted.

(2) In sub-paragraph (1)(a), the reference to cases in which civil sanctions have been imposed does not include cases where a sanction has been imposed but overturned on appeal.

(3) This paragraph does not apply in cases where the regulator considers that publication would be inappropriate.

Commencement Information

I41 Sch. 3 para. 37 in force at 1.12.2019, see art. 1(1)

Article 41

SCHEDULE 4 U.K. Amendments

PART 1 U.K. Amendments to primary legislation

Wildlife and Countryside Act 1981 U.K.

1.—(1) The Wildlife and Countryside Act 1981 M1 is amended as follows.

(2) In section 14 (introduction of new species etc.), after subsection (4) insert—

“(4ZA) Subsection (1)(a) does not apply to species included on the list of invasive alien species of Union concern adopted by the European Commission in accordance with Articles 4(1) and 10(4) of Regulation (EU) No 1143/2014 of the European Parliament and of the Council of 22 October 2014 on the prevention and management of the introduction and spread of invasive alien species, as amended from time to time.”.

(3) In Schedule 9 (animals and plants to which section 14 applies)—

(a) in Part 1 (animals which are established in the wild) omit the following entries—

Common Name	Scientific Name
Crab, Chinese Mitten	Eriocheir sinensis
Crayfish, Red Swamp	Procambarus clarkii
Crayfish, Signal	Pacifastacus leniusculus
Crayfish, Spiny-cheek	Orconectes limosus
Deer, Muntjac	Muntiacus reevesi
Duck, Ruddy	Oxyura jamaicensis
Goose, Egyptian	Alopochen aegyptiacus
Squirrel, Grey	Sciurus carolinensis;

(b) in Part 2 (plants)—

(i) omit the following entries—

Common Name	Scientific Name
Balsam, Himalayan	Impatiens glandulifera
Fanwort (otherwise known as Carolina Water-Shield)	Cabomba caroliniana
Hogweed, Giant	Heracleum mantegazzianum
Hyacinth, Water	Eichhornia crassipes
Parrot's feather	Myriophyllum aquaticum
Pennywort, Floating	Hydrocotyle ranunculoides
Primrose, Floating Water	Ludwigia peploides
Primrose, Water	Ludwigia grandiflora
Rhubarb, Giant	Gunnera tinctoria
Waterweed, Curly	Lagarosiphon major;

(ii) for the entry in respect of “Waterweeds” substitute—

“Waterweeds (except Nuttall's Waterweed)

All species of the genus Elodea, except Elodea nuttallii”.

(4) In Schedule 9A (species control agreements and orders)—

(a) in sub-paragraph (2) of paragraph 1 (overview), for paragraphs (a) and (b) substitute—

“(a) a species of animal or plant included on the Union list,

(b) an invasive non-native species of animal or plant not falling within sub-paragraph (a), or

(c) a species of animal that is no longer normally present in Great Britain.”;

(b) in paragraph 2 (definitions relating to species), after sub-paragraph (5), insert—

“(6) The “Union list” means the list of invasive alien species of Union concern adopted by the European Commission in accordance with Articles 4(1) and 10(4) of Regulation (EU) No 1143/2014 of the European Parliament and of the Council of 22 October 2014 on the prevention and management of the introduction and spread of invasive alien species, as amended from time to time.”.

Commencement Information

I42 Sch. 4 para. 1 in force at 1.12.2019, see art. 1(1)

Marginal Citations

M1 1981 c.69. Section 14 of the Act was amended by section 102 of, and Part 4 of Schedule 16 to, the Countryside and Rights of Way Act 2000 (c. 16) and sections 23 and 25 of the Infrastructure Act 2015 (c. 7). Section 14ZA was inserted by section 50 of the Natural Environment and Rural Communities Act 2006 (c. 16) and amended by section 25(3) of the Infrastructure Act 2015 (c. 7). Schedule 9 was amended by sections 24 and 25 of the Infrastructure Act 2015 (c. 7); S.I. 1992/320, 1992/2674, 1997/226, 1999/1002, 2010/609 and (in relation to Wales) 2015/1180. Schedule 9A was inserted by section 23(3) of the Infrastructure Act 2015 (c. 7). There are other amendments which are not relevant.

PART 2 U.K. Amendments to secondary legislation

The Prohibition of Keeping of Live Fish (Crayfish) Order 1996 U.K.

2.—(1) The Prohibition of Keeping of Live Fish (Crayfish) Order 1996 M2 is amended as follows.

(2) For article 1(2), substitute—

“(2) In this Order “crayfish” means a freshwater decapod crustacean of the Families Astacidae, Cambaridae or Parastacidae, other than the species—

(a) Austropotamobius pallipes (commonly known as the Atlantic stream, or white-clawed, crayfish);

(b) Orconectes limosus (commonly known as the spiny-cheek crayfish);

(c) Orconectes virilis (commonly known as the virile crayfish);

(d) Pacifastacus leniusculus (commonly known as the signal crayfish);

(e) Procambarus clarkii (commonly known as the red swamp crayfish); and

(f) Procambarus fallax f. virginalis (commonly known as the marbled crayfish).”.

(3) In article 2—

(a) in paragraph (1), omit the words “(2) and”;

(b) omit paragraph (2).

(4) Omit the Schedule.

Commencement Information

I43 Sch. 4 para. 2 in force at 1.12.2019, see art. 1(1)

Marginal Citations

M2 S.I. 1996/1104, amended by section 73(2) of the Countryside and Rights of Way Act 2000 (c. 37); S.I. 1996/1374 and 2011/2292.

The Wildlife and Countryside Act 1981 (Prohibition on Sale etc. of Invasive Non-native Plants (England) Order 2014 U.K.

3.  In the table in article 3 of the Wildlife and Countryside Act 1981 (Prohibition on Sale etc. of Invasive Non-native Plants) (England) Order 2014 M3 omit the following entries—

Common Name	Scientific Name
Parrot's Feather	Myriophyllum aquaticum
Pennywort, Floating	Hydrocotyle ranunculoides
Primrose, Floating Water	Ludwigia peploides
Primrose, Water	Ludwigia grandiflora.

Commencement Information

I44 Sch. 4 para. 3 in force at 1.12.2019, see art. 1(1)

Marginal Citations

M3 S.I. 2014/538.