Section 59- Power to modify meaning of "relevant surface"

171.     This section provides the Scottish Ministers with a power to modify by order the definition of "relevant surface" contained in the Act, and so alter the surfaces in respect of which a graffiti removal notice may be served. Any order proposing such changes would be subject to affirmative resolution by the Scottish Parliament.

Section 60 - Graffiti removal notice: content and service

172.     This section sets out the matters that should be included in a graffiti removal notice and the manner in which that notice should be served. Subsection (1) requires that a graffiti removal notice shall explain the effect of sections 61, 63 and 64. Section 61 sets out a local authority's powers where a person fails to comply with a graffiti removal notice. Section 63 provides for a person on whom a graffiti removal notice has been served to appeal against that notice. Section 64 provides that, where a person has failed to comply with a graffiti removal notice and a local authority serves a notice seeking to recover the cost of removing the graffiti from the person upon whom the notice was served, they may appeal against that notice on the grounds that the expenditure the local authority seeks to recover is excessive.

173.     Subsection (2) provides that, subject to subsection (3), a graffiti removal notice shall be treated as if it is a notice served under subsections 160(2) to 160(5) of the 1990 Act.

174.     Section 160(2) of the 1990 Act states that a notice shall be regarded as having been served on a person by delivering it to him in person, by leaving it at his proper address or by sending it by post to him at that address. Section 160(3) states that in the case of a body corporate, a notice may be served on the secretary or clerk of that body and in the case of a partnership it may be served on a person having control of the partnership or business. Section 160(4) states that the proper address of a person on whom a notice is to be served shall be his last known address except: in the case of a body corporate where it should be sent to the address of the registered or principal office of that body and; in the case of a partnership where it shall be the principal office of that partnership. In the case of a body whose principal or registered office is outside the UK, their principal office shall be their principal office within the UK. Section 160(5) states that if a person to be served with a notice has specified an address in the UK other than his proper address as defined by subsection 160(4) as that at which he or someone on his behalf will accept notices of a particular type (e.g. graffiti removal notices) then this address should be treated as his principal address for such purposes.

175.     Subsection (3) makes provision for service of the notice in cases where a local authority are unable to establish the name or proper address of the person on whom the graffiti removal notice is to be served. Subsection (4) provides that 'proper address' shall be read in accordance with section 160(4) of the 1990 Act.

Section 61 - Non-compliance with graffiti removal notice

176.     Section 61 provides that a local authority may take action to deal with the graffiti where the person on whom the graffiti removal notice is served fails to comply with that notice. Subsection (2) enables the local authority or a person authorised by the authority to deal with the graffiti and to enter onto any land where appropriate in order to deal with that graffiti.

177.     Subsection (3) empowers a local authority to recover any expenditure reasonably incurred in dealing with the graffiti under subsection (2) from the person responsible for the surface. Subsection (4) provides that before doing so, a local authority must serve on the responsible person a notice setting out the amount and details of the expenditure it proposes to recover. Subsection (5) provides that subsections 160(2) to 160(5) of the 1990 Act apply in relation to the service of a notice mentioned in subsection (4).

Section 62 - Guidance to local authorities about graffiti removal functions

178.     This section provides that a local authority shall have regard to any guidance given by the Scottish Ministers in carrying out its functions under sections 58, 60 and 61.

Section 63 - Appeal against graffiti removal notice

179.     Section 63 provides for the circumstances in which a person can appeal a graffiti removal notice. Subsection (5) provides that where a person has appealed against a graffiti removal notice, it shall have no effect pending the determination or withdrawal of that appeal. A local authority cannot therefore proceed to remove the graffiti from the surface named in the notice while an appeal remains outstanding.

Section 64 - Appeal against notice under section 61(4)

180.     Section 64 provides a person on whom a notice has been served by the local authority seeking to recover the costs of removing graffiti from a surface a right to appeal against the notice on the grounds that the expenditure which the local authority proposes to recover is excessive. The sheriff, if satisfied that this is the case, may make an order substituting a lower amount. Subsection (2) provides that such an appeal must be made within 21 days, beginning with the day on which the notice was served.

Section 65 - Graffiti removal notices: exemptions from liability

181.     Section 65 provides the local authority, its employees and persons authorised by the local authority (and their employees) under section 61 with exemption from legal liability to responsible persons. This is in cases where the liability would arise from actions or omissions in connection with the exercise of powers under section 60(3) or 61(2). Subsection (3) provides that this exemption from liability does not apply where the act or omission is shown to have been in bad faith or in respect of a liability arising out of a failure to exercise due care and attention.

Section 66 and schedule 2 - Increase in penalties for certain environmental offences

182.     Schedule 2, which is given effect by section 66, contains amendments relating to penalties for certain environmental offences. They relate to:

• offences under the Sewerage (Scotland) Act 1968, involving harm to, or impairment of, the working of sewerage or sewage treatment;

• offences causing or allowing the water environment to become polluted (these offences are currently set out in the Control of Pollution Act 1974, which will be superseded in due course by a new regulatory framework under the Water Environment and Water Services (Scotland) Act 2003);

• offences under the Water (Scotland) Act 1980 involving pollution of drinking water sources;

• offences involving harm to the general environment under the 1990 Act or giving rise to a statutory nuisance;

• failing to observe regulations for industrial pollution control under the Pollution Prevention and Control Act 1999 and the associated Pollution Prevention & Control (Scotland) Regulations 2000;

• offences under the Landfill (Scotland) Regulations 2003 concerning the operation of a landfill.

183.     The maximum fine currently applicable to any of the above on summary conviction, is £20,000. The effect of the amendments to those provisions in schedule 2 to the Act is to increase the fine on summary conviction for all these offences to £40,000.

PART 7 - HOUSING: ANTISOCIAL BEHAVIOUR NOTICES

Section 68 - Antisocial behaviour notices

184.     Section 68 permits a local authority to serve an antisocial behaviour notice on the landlord of a relevant house if any person who occupies the house under a tenancy or occupancy agreement or visits the house is engaging in antisocial behaviour which causes or is likely to cause alarm, distress, nuisance or annoyance at or in the locality of the house. The relevant house must be in the local authority's area but the interpretation section (section 81) excludes houses which are owned by a local authority, a registered social landlord or Scottish Homes; which are in specified categories regulated by the Scottish Commission for the Regulation of Care under the Regulation of Care (Scotland) Act 2001; which are used by a religious order; or which are the subject of a local authority control order in terms of section 178 of the Housing (Scotland) Act 1987.

185.     Under subsection (3) of section 68 the antisocial behaviour notice must describe the antisocial behaviour which has led to the serving of the notice and require the landlord to take specified action within a specified period. The subsection requires the notice to state the consequences of a failure to take the action, and to inform the landlord of the right to request a review.

186.     Subsection (4) requires the local authority to send a copy of the notice to any known agent of the landlord. Subsection (5) provides for the local authority to publish the notice where it cannot identify the landlord. Where it can identify the landlord but does not have a current address it may serve the notice on the landlord by sending it to the landlord at the house and at the landlord's last known address if known.

187.     Subsection (6) allows the Scottish Ministers to modify Part 7 of the Act by order in such ways as they consider to be necessary or expedient in order to apply the powers to houses which are used for holiday purposes. There is the potential for antisocial behaviour in holiday accommodation but the short-term nature of the occupation may make it difficult to implement the antisocial behaviour notice procedure effectively. This subsection allows the provisions to be modified to suit the circumstances of holiday lets should this prove necessary. The order making power is subject to affirmative resolution procedure.

Section 69 -Review of antisocial behaviour notices

188.     Section 69 gives the landlord a right for the notice to be reviewed by the local authority provided the landlord applies for a review within 21 days of the service of the notice or such longer period as the local authority may allow.

Section 70 - Internal procedure on review

189.     Section 70 sets out the arrangements for ensuring that the local authority's internal review is carried out independently of the initial decision. It provides that the review must be conducted by a person who was not involved in the decision to serve the notice and who is senior to the person who made that decision. The reviewer may confirm, vary or revoke the notice and may suspend the notice pending completion of the review. The local authority must give the landlord reasons for the decision taken on review.

Section 71 - Failure to comply with notice: order as to rental income

190.      Section 71 provides that the sheriff may make an order that no rent or other consideration shall be payable or exigible for occupation of the house if the local authority applies for such an order and the sheriff is satisfied both that the landlord has failed to comply with the antisocial behaviour notice and that it would not have been unreasonable for the landlord to have done so. The sheriff can also make incidental orders if necessary.

191.     Subsections (3) and (4) require the local authority to give a copy of the order to any tenant and any agent, provided the local authority is aware of their name and address. Subsection (5) provides that apart from the effect of the order no other aspect of the lease is affected by the operation of Part 7. This means that, for example, the landlord is still able to take action under the lease to deal with a tenant's antisocial behaviour, and that the tenant retains all obligations (other than rent liability) and protections under any lease or occupancy agreement.

Section 72 - Appeals against orders under section 71

192.     Section 72 provides that an appeal against a decision by a sheriff on an application for an order as to rental income shall be made to the sheriff principal within 21 days, and that the sheriff principal's decision is final. Where a landlord appeals against a decision to make an order, the landlord must give notice to the tenant of any matters which are prescribed by the Scottish Ministers in regulations. If the landlord does not give such notice, or in other circumstances which may be specified by the Scottish Ministers in regulations, the sheriff principal must not require the tenant to pay any sums which would have been due but for the making of the order. The regulations may include provisions as to procedures and may also impose obligations on landlords. These regulations are subject to negative resolution procedure.

Section 73 - Orders under section 71: revocation and suspension

193.     Section 73 allows the sheriff to revoke or suspend an order as to rental income made under section 71 on application by the local authority or the landlord, if the sheriff is satisfied either that the action specified in the antisocial behaviour notice has been taken or that it is otherwise unreasonable for the order to continue. Subsection (3) provides that the revocation or suspension does not have retrospective effect, and subsection (4) requires the local authority to give a copy of the order revoking or suspending the order as to rental income to any tenant and any agent, provided the local authority is aware of their name and address.

Section 74 - Failure to comply with notice: management control order

194.     Section 74 provides for the sheriff to make, in like manner as for an order as to rental income under section 71, a management control order which transfers to the local authority for a period not exceeding 12 months the rights and obligations of the landlord under the tenancy or occupancy arrangements existing at the time of the order. Subsection (4) allows the local authority to recover from the landlord any sums that should have been paid to it in terms of the management control order but were instead paid to the landlord. The section also provides for the sheriff to make incidental orders, and gives effect to schedule 3.

Schedule 3 - Management control orders

195.     Schedule 3 makes detailed provision for management control orders in connection with the effect on tenants and occupants, the keeping of accounts by the local authority, the making of regulations to govern expenditure recoverable by the local authority from the landlord, the recovery of rent arrears from the tenant, the delegation by the local authority of management functions to third parties and the requirement for the landlord to obtain the local authority's approval to re-let part of shared accommodation while it is subject to an order. These regulations are subject to negative resolution procedure.

Section 75 - Management control order: notification

196.     Section 75 requires the local authority to inform both the landlord if practicable and the tenant, or the occupant under an occupancy arrangement, of the making of the order and to give a copy to any known agent.

Section 76 - Management control order: revocation

197.     Section 75 allows the sheriff to revoke a management control order in like manner as for the revocation of an order as to rental income under section 73 if either the action specified in the antisocial behaviour notice has been carried out by the landlord or the local authority or it would in all the circumstances be unreasonable for the notice to continue to have effect.

Section 77 - Management control order: notification of revocation

198.     Section 77 requires that when a management control order is revoked, the party which applied for the revocation (which could be the local authority or the landlord) notifies the other party and the occupiers as soon as practicable after the revocation.

Section 78 - Failure to comply with notice: action by authority at landlord's expense

199.     This section provides that where a landlord fails to comply with an antisocial behaviour notice the local authority may take steps that it feels are necessary to deal with the antisocial behaviour described in the notice. It also provides that and the landlord shall be liable for the local authority's expenditure of a description and in circumstances prescribed by the Scottish Ministers in regulations. The regulations may also provide for the notification and collection of such expenditure and for the settling of related disputes. These regulations are subject to negative resolution procedure.

Section 79 - Failure to comply with notice: offence

200.     Section 79 provides that a landlord who has failed without reasonable excuse to comply with an antisocial behaviour notice shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale (currently £5,000).

Section 80 - Regulations about advice and assistance: Part 7

201.     Section 80 gives the Scottish Ministers powers to make regulations requiring local authorities to provide advice and assistance in connection with Part 7 of the Act. These regulations are subject to negative resolution procedure.

Section 81 - Interpretation of Part 7

202.     Section 81 defines landlord, occupancy arrangement and relevant house so that the provisions in this Part relate to houses which are the subject of formal tenancies and the full range of formal and informal occupancy arrangements including shared accommodation. However, as indicated in the introductory paragraph it excludes houses which are owned by a local authority, a registered social landlord or Scottish Homes; which are in specified categories regulated by the Scottish Commission for the Regulation of Care under the Regulation of Care (Scotland) Act 2001; which are used by a religious order; or which are the subject of a local authority control order in terms of section 178 of the Housing (Scotland) Act 1987. It also sets out what is meant by engaging in antisocial behaviour for the purposes of this Part of the Act.

PART 8 - HOUSING: REGISTRATION OF CERTAIN LANDLORDS

Section 82 - Registers

203.     Section 82 requires each local authority to prepare and maintain a register for the purposes of Part 8 and to make it available for public inspection at all reasonable times.

Section 83 - Application for registration

204.     Section 83 requires that an application for registration must specify the applicant's name and address, the address of any house in the local authority's area that the applicant lets other than to members of his family, the name and address of any agent for such houses and any further information that the Scottish Ministers may prescribe by regulations, which are subject to negative resolution procedure. Subsections (2) and (3) provide for the application to be accompanied by a fee but give the Scottish Ministers power to prescribe fees, how they are to be arrived at and in what cases no fee is payable. This means that Scottish Ministers will be able, for example, to set maximum fees or methods for their calculation to ensure that reasonable fees are charged. The regulations under subsection (3) are subject to negative resolution procedure. Subsections (4) and (5) make it an offence punishable by a fine up to level 3 on the standard scale (currently £1,000) to omit information or provide false information in an application.

205.     Subsection (6) excludes from the requirement to be included in the application any house which is: regulated by the Scottish Commission for the Regulation of Care under the Regulation of Care (Scotland) Act 2001; used by a religious order for defined purposes; the subject of a local authority control order in terms of section 178 of the Housing (Scotland) Act 1987; or used for holiday purposes. Subsection (7) allows the Scottish Ministers to modify subsection (6), by order subject to affirmative resolution procedure. Subsection (8) provides that Part 8 does not apply to local authorities, registered social landlords or Scottish Homes and that the letting of houses only to family members is disregarded.

Section 84 - Registration

206.     Section 84 requires the local authority to enter the applicant in the register for a period of three years if it is satisfied that the applicant is a fit and proper person to act as landlord under a lease or occupancy arrangement (whether the applicant is currently acting in that capacity or not) and that any agent specified in the application is a fit and proper person to act for the landlord. The local authority is also required to enter the details required by section 83 (but not further information required by regulations under that section) in the public register.

Section 85 - Section 84: considerations

207.     Section 85 specifies material to which the local authority shall have regard (in addition to other things it may consider) when deciding whether an applicant or an applicant's agent is a fit and proper person for the purposes of section 84. The material specified is: whether the person has committed certain types of offence, practised unlawful discrimination or contravened housing law or landlord and tenant law; actions or failures to act in relation to antisocial behaviour affecting a house let by the applicant or for which the applicant was an agent; and other material considered by the local authority to be relevant.

Section 86 - Notification of registration or refusal to register

208.     Section 86 requires the local authority as soon as practicable after a decision on an application for registration is made, to notify the applicant of the outcome of his or her application and, where the application is refused, to send notice of the refusal to the address of any house and any agent specified in the application.

Section 87 - Duty of registered person to provide information to local authority

209.     Section 87 requires a registered person to give the local authority written notification of any change in the information supplied in terms of section 83 (or any information supplied in terms of this section) as soon as practicable after that change. Subsections (3) and (4) provide for a fee to be payable and give the Scottish Ministers power to prescribe fees, how they are to be arrived at, or instances where no fee is to be paid. The regulations under subsection (4) are subject to negative resolution procedure. Subsections (5) and (6) make it an offence punishable by a fine up to level 3 on the standard scale (currently £1,000) to fail to give notice of relevant information changes without reasonable excuse.

Section 88 - Registered person: appointment of agent

210.     Section 88 requires a registered landlord who appoints an agent to notify the local authority in writing and for the local authority to consider whether the agent is a fit and proper person to act for the landlord. If the local authority is satisfied that the agent is fit and proper it must confirm the landlord's registration in writing. The existing registration period continues, and does not start again. If the local authority considers that the agent is not a fit and proper person it must remove the landlord from the register.

Section 89 - Removal from register

211.     Section 89 requires the local authority to remove a person from the register if it is satisfied that the person, or the person's agent where applicable, is no longer fit and proper in terms of section 84.

Section 90 - Notification of removal from register: registered person

212.     Section 90 provides that if a local authority removes a person from the register under section 88 or 89 it must notify that person by recorded delivery to that person's address as it appears on the register as soon as practicable.

Section 91 - Notification of removal from register: other persons

213.     Section 91 provides that when a local authority removes a person from the register it must give notice of the removal to the address of each house registered in relation to that person and to any known agent of that person.

Section 92 - Appeal against refusal to register or removal from register

214.     Section 92 provides for a person whose application for registration is refused or who is removed from the register to appeal to the sheriff, who can require the local authority to enter the person in the register. Any appeal against the sheriff's decision has to be made to the sheriff principal within 21 days of the decision, and the sheriff principal's decision is final.

Section 93 - Offences

215.     Section 93 provides that a person who is not registered and who lets a house or takes active steps to do so while not registered is committing an offence which is punishable by a fine up to level 5 on the standard scale (currently £5,000). It is a defence to show reasonable excuse. An offence is not committed if the person has applied for registration and the application has not been determined.

Section 94 - Circumstances in which no rent to be payable

216.     Section 94 permits a local authority to serve a notice on the landlord, tenant and any agent if the landlord is not registered and is letting or allowing occupation of a house and it is appropriate to serve a notice in all the circumstances. The effect of the notice is that no rent or other payment is payable under the tenant's lease or occupancy arrangement from a specified date. No other aspect of the lease or occupancy arrangement is affected. A notice cannot be served if the person has applied for registration and the application has not been determined. The section also provides for notification arrangements where the landlord's identity or current address is unknown.

Section 95 - Notices under section 94: revocation

217.     Section 95 requires the local authority to revoke a notice under section 94 where the landlord registers, stops letting or the notice is no longer appropriate. Subsection (3) makes it clear that revocation does not have retrospective effect with regard to liability for rent during the period in which the revoked notice was is force.