Section 43 - Investigation of excessive noise from certain places

99.     Section 43 sets out the duties of a local authority and its officers in relation to the investigation of noise from relevant property.

100.     Subsection (1), as read with subsection (3), places a duty on a local authority, where the noise control provisions apply to its area by virtue of section 41,, to investigate a complaint of excessive noise from relevant property, and requires an officer of the authority to take reasonable steps to investigate the complaint.

101.     Subsection (2) enables a complaint to be made by any means.

102.     Subsection (3) enables a local authority officer, having undertaken an investigation under subsection (1), to serve a warning notice under section 44, if the local authority officer is satisfied that noise is being emitted from the offending property during a noise control period, and the noise, if measured from within a relevant place (as defined in section 53), would or might exceed the permitted level.

103.     Subsection (4) provides that it is for the local authority officer, when making the assessment under subsection (3), to decide whether any noise, if measured from a relevant place would or might exceed the permitted level. In reaching this decision it is for the local authority officer to decide the place in which to measure the noise, and whether any device should be used for measuring the noise.

104.     Subsection (5) makes provision for a situation where one local authority receives a complaint and the offending property is situated in another local authority area. It enables the local authority which receives the complaint to apply the noise control provisions as if the offending dwelling were situated in its area, and therefore act whether or not the noise control provisions apply in the local authority area where the offending property is situated.

Section 44 - Warning Notices

105.      Section 44 makes provision for the issue of a warning notice.

106.      Subsection (1) requires a notice issued under this section ( a "warning notice") to state that the local authority officer considers that:

• noise is being emitted from the offending property during a noise control period; and

• the noise exceeds, or may exceed the permitted level, as measured from a relevant place.

107.     The notice must also state that any person may be guilty of an offence if that person is responsible for noise emitted from the offending property in the period specified in the notice, and the noise exceeds the permitted level as measured from a relevant place.

108.      Subsection (2), as read with subsection (3), provides that the period specified in the warning notice must begin not earlier than 10 minutes after the time when the notice is served, and must end at the relevant time. Subsection (3) defines relevant time as the earlier of the end of the noise control period during which the notice is served or end of the period in which the permitted level applicable during the period in which the notice is served, ceases to apply.

109.     Subsection (4) requires a warning notice to be served by delivering it to any person present at, or near, the offending property and appearing to the local authority officer to be responsible for the noise.

110.     Subsection (5) requires a warning notice to be served (by leaving it) at the offending property, where it is not reasonably practicable to identify any person present at or near the property as being a person responsible for the noise on whom the notice may reasonably be served. Subsection (6) requires a warning notice to state the time at which it is served.

111.     Subsection (7) provides that for the purposes of the noise control provisions, a person is responsible for noise emitted from relevant property if the emission of the noise is wholly or partly attributable to the person's act, failure or sufferance.

Section 45 - Offence where noise exceeds permitted level after service of notice

112.      Section 45(1) provides that an offence is committed, if after service of a warning notice, noise is emitted from relevant property during the period specified in the warning notice and the noise exceeds the permitted level as measured from a relevant place.

113.      Subsection (2) provides that a person guilty of an offence is liable on summary conviction to a fine not exceeding level 3 (£1,000) on the standard scale.

114.     Subsection (3) provides a defence for a person charged with an offence to show that there was a reasonable excuse for the act, default or sufferance in question. Subsection (4) provides that an accused person will be taken to have shown the defence under subsection (3) where that person adduces sufficient evidence to raise an issue with respect to it, and the prosecution does not prove the contrary beyond reasonable doubt.

115.     Subsection (5) provides that in proceedings for an offence under this section, evidence of the measurement of a level of noise is only admissible if the measuring device is approved and any conditions subject to which the approval was given are satisfied.

Sections 46 - Fixed penalty notices

116.     Section 46 make provision for the issue of fixed penalty notices ("FPNs").

117.     Subsection (1) provides that where a relevant officer has reason to believe that a person is committing or has just committed an offence under section 45, the relevant officer may serve on that person a FPN, thereby offering that person the opportunity of discharging any liability to conviction for that offence by paying a fixed penalty. Subsection (2) defines "relevant officer" as an authorised officer of a local authority or a constable.

118.     Subsection (3) provides that only one FPN may be issued to a person in respect of noise emitted from a property during the period specified in the warning notice.

119.     Subsections (4) and (5) allow a FPN to be given to a person by delivering the FPN to that person. If it is not reasonably practicable to deliver the FPN to the person, the FPN may be addressed to the person, and left at the offending property.

120.     Subsection (6) requires a FPN to set out the circumstances alleged to constitute the offence as are necessary to give reasonable information about the offence.

121.     Subsection (7) requires the FPN to state:

• the period during which proceedings will not be taken for the offence. In accordance with section 51(2)(a) this must be a period of at least 28 days beginning with the date on which the FPN is served;

• the amount of the fixed penalty, and

• the person to whom and the address at which the penalty must be paid.

122.     Subsection (8) makes provision for the methods of paying the fixed penalty. These include by means of pre-paying in cash (or otherwise), and posting to the person and the address specified in the notice.

123.     Subsection (9) provides that if payment is made by the method specified in subsection (8), payment is to be deemed to have been made at the time when the payment would be delivered in the ordinary course of post.

124.     Subsection (10) sets the fixed penalty at £100.

125.     Subsection (11) provides that the FPN be payable to the local authority whose officer issued the warning notice and resulting FPN.

Section 47- Powers of entry and seizure of equipment used to make noise unlawfully

126.     Subsections (1) and (2) provides an authorised officer of a local authority with powers to seize and remove any equipment which appears to have been used in the emission of noise, where a warning notice has been served on an offending property. Subsection (3) provides for an authorised officer, if required to do so, to produce that officer's authority in the form of a warrant.

127.     Subsection (4) gives a sheriff or justice of the peace the power to grant a warrant under subsection (3), on being satisfied by evidence on oath that a warning notice has been served, the noise emitted from the relevant property has exceeded the permitted level during the period specified in the warning notice as measured from a relevant place, and that entry to the property has been refused, refusal is apprehended, or request for entry would defeat the object of entry.

128.     Subsection (5) sets out the powers that may be exercised pursuant to a warrant issued under section 47. These include power to enter an offending property for the purpose of seizing and removing equipment used in the emission of noise and power to open lockfast places on the property for this purpose.

129.      Subsection (6) provides for the authorised officer with an authorising warrant to enter premises accompanied by such persons as may be necessary to take equipment, and if that property is unoccupied on the officer's leaving, to leave it as effectively secured as it was when the officer entered it.

130.     Subsection (7) provides that a person who wilfully obstructs an officer exercising the power of a warrant, shall be guilty of an offence. Subsection (8) provides that a person guilty of such an offence shall be liable on summary conviction to a fine not exceeding level 3 (£1,000) on the standard scale.

131.     Subsection (9) gives effect to schedule 1, which makes further provision in relation to anything seized and removed by virtue of this section.

Schedule 1 (introduced by section 47)

Powers in relation to equipment seized under Section 47

132.     Paragraph 1 contains the definitions of noise offence, seized equipment, related equipment and responsible local authority in relation to seized equipment.

133.     Paragraph 2 sets out the circumstances in which seized equipment may or may not be retained.

134.     Paragraph 3 gives the court the power to make a forfeiture order of any related equipment on a conviction for a noise offence.

135.     Paragraph 4 makes provision in the event of a forfeiture order having been made under paragraph 3. For example, the court can order delivery of the equipment to anyone claiming to be the rightful owner on an application made by the latter within 6 months of the forfeiture order. But this is without prejudice to anyone else claiming to be its rightful owner from seeking its recovery from the person in possession of it within 6 months. Finally, a local authority can dispose of the equipment if, after a period of six months no order for delivery has in fact been made.

136.     Paragraph 5 enables the court to give directions as it thinks fit as to the return, retention or disposal of equipment.

137.     Paragraph 6 sets out the requirements of a responsible local authority in respect of the return or disposal of seized equipment, and the recovery of any reasonable charges in respect of the seizure, removal and retention of the equipment.

Section 48 -Permitted level of noise

138.     Section 48 makes provision for the setting of the permitted level.

139.     Subsection (1) gives the Scottish Ministers the power to make regulations which will be subject to negative resolution procedure, to prescribe the maximum level of noise which may be emitted from relevant property ("the permitted level").

140.     Subsection (2) provides that the permitted level is that level applicable to noise measured from a relevant place. The level of noise is to be measured by an approved device used in accordance with any conditions subject to which the approval was given.

141.     Subsection (3) enables different permitted levels to be prescribed for different periods of the week, areas, times of the year, or other circumstances. The permitted level may be determined partly by reference to other levels of noise.

Section 49- Approval of measuring devices

142.     Section 49 gives the Scottish Ministers the power to make regulations which will be subject to negative procedure, to approve any type of device used for the measurement of the noise. The approval may be given subject to conditions relating to the purposes, manner and circumstances in which devices are to be used.

Section 50 -Power to provide funds to local authorities

143.     Section 50 gives the Scottish Ministers the power to make payments to local authorities, in respect of the discharge of their functions under Part 5.

Section 51 -Fixed Penalty Notices: supplementary

144.     Section 51 contains supplementary provisions concerning FPNs.

145.     Subsection (1) enables the Scottish Ministers by order, which will be subject to negative resolution procedure to specify the form in which a FPN must be issued.

146.     Subsection (2) provides that proceedings for an offence cannot be instituted before the end of a period of 28 days following the date of service of the notice, and the person cannot be convicted of the offence if the person pays the fixed penalty before the end of that period. A person may be convicted of a further offence under section 45 in respect of noise emitted from relevant property after the FPN is served but before the end of the period specified in the warning notice.

147.     Subsection (3) would apply in the event of proceedings for an offence under section 45. It enables evidence of the payment or non-payment of a fixed penalty before the end of any period to be produced by way of a certificate purporting to be signed by or on behalf of the person responsible for the financial affairs of the local authority, and which states that payment was made on any date or was not received before the end of that period.

148.     Subsection (4) enables the Scottish Ministers by order, which will be subject to negative procedure to amend section 46(10) so as to change the amount of the fixed penalty payable. Subsection (5) limits any change to an amount not exceeding level 2 (£500) on the standard scale.

149.     Subsection (6) provides that any payment received by a local authority under section 46 shall be treated a fine imposed by a district court.

Section 52- Guidance in relation to this Part

150.     Section 52 provides a person other than a court shall, when discharging any functions under Part 5, have regard to any guidance given by the Scottish Ministers about the discharge of those functions, and any matters arising in connection with the discharge of those functions.

Section 53 - Meaning of "relevant place" and "relevant property"

151.     Section 53 contains the definitions of "relevant property" and "relevant place". Any such other place may also be prescribed as meaning either a relevant place or property by Scottish Ministers by order, which will be subject to affirmative resolution procedure.

Section 54- Interpretation of Part 5

152.     Section 54 contains the definitions of other expressions used in Part 5.

PART 6 - THE ENVIRONMENT

Section 55 - Contraventions of section 33(1)(a) and (c) of 1990 Act: fixed penalty notices

153.     Section 33 of the 1990 Act is the statutory provision criminalising fly-tipping, and sets out penalties for that offence.

154.     The 1990 Act envisages only pursuit through the prosecution system as a penalty for fly-tipping. Section 55 of the Act, which inserts a new section 33A into the 1990 Act, makes provision for the payment of a fixed penalty fine as an alternative to prosecution for fly-tipping offences.

155.     Under subsection (1) of the new section 33A of the 1990 Act, as read with subsection (13), an authorised officer of a local authority, a police constable or an officer of SEPA (as the waste regulation authority), on having reason to believe that a fly-tipping offence has been committed (the "relevant offence" in terms of subsection (2)), has the power to give the offender a notice inviting the offender to pay a fixed penalty. The "relevant offences", as set out in section 33(1)(a) and (c) of the 1990 Act, concern respectively depositing waste, or knowingly causing or permitting the depositing of waste, without a licence to do so, and to treating, keeping or disposing of controlled waste in a manner likely to cause pollution of the environment or harm to human health. These offences are commonly referred to as "fly-tipping".

156.     Subsections (4) to (7) of section 33A set out the procedure for issuing a fixed penalty notice. In terms of subsection (4), where a fixed penalty notice is given by a police constable, or an officer of SEPA, a duplicate of the notice is given to the local authority in whose area the offence occurred and it is the latter which is responsible for the further administration of it, such as collection of the fixed penalty. If payment is made within 14 days then, in terms of subsection (5), no further proceedings will be instituted in relation to that offence. Subsection (6) makes provision for what the fixed penalty notice must contain and, as read with subsection (7), for the payment of the fixed penalty to which the notice relates. Subsection (8) permits the Scottish Ministers to prescribe by order the form of fixed penalty notices. The effect of subsection (12) is that the local authority keeps the proceeds of fixed penalties, as occurs at present in the case of fines imposed by the district courts. These regulations are subject to negative resolution procedure.

157.     If the fixed penalty is not paid, the alleged offender will be reported to the procurator fiscal for consideration of prosecution. Subsection (11) establishes that a certificate purporting to be signed by the proper officer concerning the payment or non-payment of a fixed penalty shall satisfy the relevant evidential requirements in any proceedings, which would include, for example, a prosecution for a fly-tipping offence where the opportunity to pay a fixed penalty fine had not been taken.

158.     In terms of subsection (9) of section 33A, the level of fixed penalty will initially be £50. However, the Scottish Ministers have the power, under subsection (10), to vary this amount by order, up to level 2 on the standard scale (currently £500). These regulations are subject to negative resolution procedure.

159.     The definition of "authorised officer" in subsection (13) of section 33A, as read with subsection (1), seeks to ensure that is the authorised officer of the local authority in the area where the offence is committed who has the power to issue the fixed penalty notice. The "proper officer" in terms of the Local Government (Scotland) Act 1973 is the individual who has financial oversight of the relevant local authority's affairs.

Section 56 - Litter: power of constables to issue fixed penalty notices

160.     The existing regime which permits fixed penalty notices to be issued for littering offences (on which the regime for fly-tipping offences above is modelled) is set out in section 88 of the 1990 Act. Until now it has given authorised officers of local authorities, only, the power to issue fixed penalty notices to individuals who commit litter offences, which are described in section 87 of the 1990 Act as an alternative to being reported to the procurator fiscal for prosecution. Section 88 of the 1990 Act, as amended by section 56 of the Act, now gives police constables, as well as authorised officers of the local authority, the power to issue fixed penalty notices in respect of littering offences. The subsequent administration will remain exactly as it is at present. However, subsection (6) restricts the power of the Scottish Ministers to vary the level of the fixed penalty by order to an upper limit of level 2 on the standard scale (currently £500), consistent with the limit on the fixed penalty fine for fly-tipping.

Section 57 - Directions in respect of duty under section 89 of 1990 Act

161.     Under section 89(1) and (2) of the 1990 Act a number of bodies have duties in respect of litter clearance. Bodies or individuals responsible for "relevant land" must clear it of litter, so far as is practicable. "Relevant land" includes public open spaces, roads, railways, the grounds of educational institutions, areas of Crown land, and other areas which local authorities designate as part of litter control areas. In this explanatory note such bodies are referred to as "duty bodies". In discharging their duties, duty bodies must have regard to a code of practice prepared by Ministers under section 89(7).

162.     Subsection (2) of section 57 of the Act, which inserts new subsections (6A) to (6D) into section 89 of the 1990 Act, gives the Scottish Ministers the power to supplement the existing code of practice with specific directions (see the new subsection (6A))to duty bodies for the purpose of securing compliance with those duties. The new subsection (6B) requires those bodies to comply with any such directions. The new subsection (6C) permits the directions to address particular litter problems, or particular areas, in detail, thus enabling them to give more focussed guidance in the performance of the litter clearance duty than the code of practice is able to. The new subsection (6D) provides for publication of any directions the Scottish Ministers may make, and for making them available to the public.

163.     Under section 91 of the 1990 Act, any person aggrieved by the defacement by litter or refuse of relevant land may, having given notice to the relevant duty body, apply to the sheriff court for a litter abatement order instructing that body to carry out its duty by clearing the litter or refuse away. Moreover, under section 92 of that Act, a local authority (as the litter authority) may issue a litter abatement notice to any other duty body, where the local authority feels that duty is not being adequately performed, requiring it to do so. Non-compliance with a section 91 litter abatement order or a section 92 litter abatement notice is an offence. Subsections (3) and (4) of section 57 of the Act, through amendment of sections 91(11) and 92(8) of the 1990 Act, enable any directions issued under section 89(6A) to be admissible in evidence in these proceedings.

Section 58 - Power of local authority to serve notice about graffiti

164.     Section 58 provides local authorities with a power to serve a notice requiring the person upon whom it is served to remove, clear or otherwise remedy the graffiti described in the notice (called a "graffiti removal notice"). Subsection (1) provides that a local authority can exercise this power where it appears to it that the graffiti is either offensive or detrimental to the amenity of the locality. Examples of graffiti which is offensive include graffiti which is racially or sexually offensive, homophobic or defamatory. Graffiti which is not offensive may nonetheless be detrimental to the amenity of the locality in which it occurs and a local authority should take into consideration the extent to which the amenity of an area would be improved if the particular graffiti to which the notice relates were removed. The persons on whom a graffiti removal notice can be served are those responsible for relevant surfaces. Subsection (3) provides a definition of a "relevant surface" and subsection (9) provides a definition of "graffiti" and "responsible persons".

165.     Subsection (2) provides that a graffiti removal notice must give at least 28 days in which to remove the graffiti. .

166.     Subsection (3) defines a 'relevant surface' as either the surface of a public road or any building, structure, apparatus, plant or other object on such a road or, where subsection (4) or (5) applies, the surfaces of property or land owned, occupied or controlled by a relevant body. Definitions of 'road' and 'relevant body' are contained at subsection (9). Subsection (7) empowers a local authority to withdraw a graffiti removal notice it has issued. Subsection (8) provides that a local authority's use of its power at subsection (7) shall not affect its power to issue a further graffiti removal notice in respect of the defacement described in the notice which has been withdrawn.

167.     Subsection (9) defines a 'relevant body' as being an educational institution or a statutory undertaker.

168.     An 'educational institution' is defined by section 98(3) of the 1990 Act as meaning:

• (a) any university within the meaning of the Education Reform Act 1988 funded by the Universities Funding Council under section 131 of that Act;

• (b) the Open University; (c) any educational establishment (not being a school) within the meaning of section 135(1) of the Education (Scotland) Act 1980 for the provision of any form of further education for the management of which establishment an education authority is responsible;

• (cc) any college of further education within the meaning of Section 36(1) of the Further and Higher Education (Scotland) Act 1992 managed by a board of management established under Part 1 of that Act;

• (d) a designated institution within the meaning of Part II of the Further and Higher Education (Scotland) Act 1992;

• (da) any institution within the further education sector within the meaning of section 91(3) of the Further and Higher Education Act 1992;

• (e) a technology academy within the meaning of section 68(1) of the Self-Governing Schools (Scotland) Act 1989;

• (f) a public school as defined in Section 135(1) of the Education (Scotland) Act 1980 ("the 1980 Act");

• (g) a grant-aided school as defined in section 135(1) of the 1980 Act; (h) a self-governing school within the meaning of section 1(3) of the 1989 Act".

169.     A 'statutory undertaker' is defined as having the meaning given by section 98(6) of the 1990 Act - "(a) Any person authorised by any enactment to carry on any railway, light railway, tramway or road transport undertaking; (b) any person authorised by any enactment to carry on any inland navigation, dock, harbour or pier undertaking; or (c) any relevant airport operator (within the meaning of the Part V of the Airports Act 1986)."

170.     'Road' is defined by reference to section 151(1) of the Roads (Scotland) Act 1984. Section 151 provides that a road is "any way (other than a waterway) over which there is a public right of passage (by whatever means and whether subject to a toll or not) and includes the road's verge and any bridge (whether permanent or temporary) over, or tunnel through which, the road passes; and any reference to a road includes a part thereof".