Nuisance provisions of the Public Health etc (Scotland) Act 2008: guidance

9.0 - MISCELLANEOUS AMENDMENTS

9.1 There are a number of additional new provisions included in the 2008 Act. The majority of these provisions are to ensure future-proofing of the statutory nuisance regime by allowing a relatively rapid and simple system for the amendment of the regime.

9.2 Section 112 of the 2008 Act allows Scottish Ministers to make regulations to vary existing or add new matters that constitute statutory nuisances and also amend any other provisions of the statutory nuisance regime as may be appropriate. Any regulations made by the Scottish Ministers must be approved by resolution of the Scottish Parliament. Sections 112 and 114 are reproduced below.

112 Power to make further provision regarding statutory nuisances

(1) The 1990 Act is further amended as follows.

(2) In section 79-

(a) in subsection (1), for "(1A)" substitute "(1ZA)"; and

(b) after subsection (1), insert-

"(1ZA)The Scottish Ministers may by regulations-

(a) amend this section so as to-

(i) prescribe additional matters which constitute statutory nuisances for the purposes of this Part;

(ii) vary the description of any matter which constitutes a statutory nuisance;

(b) in relation to an amendment under paragraph (a), amend this Act and any other enactment to make such incidental, supplementary, consequential, transitory, transitional or saving provision as the Scottish Ministers consider appropriate.

(1ZB) Before making regulations under subsection (1ZA) above, the Scottish Ministers must consult, in so far as it is reasonably practicable to do so, the persons mentioned in subsection (1ZC) below.

(1ZC) Those persons are-

(a) such associations of local authorities; and

(b) such other persons,

as the Scottish Ministers consider appropriate.".

114 Procedure for regulations

(1) Section 161 (regulations, orders and directions) of the 1990 Act is amended as follows.

(2) In subsection (2), at the beginning insert "Subject to subsection (2B) below,".

(3) After subsection (2A), insert-

"(2B) No statutory instrument containing regulations made under section 79(1ZA) or 80ZA(11) above may be made unless a draft of it has been laid before, and approved by resolution of, the Scottish Parliament.".

9.3 Section 115 of the Act makes amendment of the sewerage nuisance provisions of the Water Services etc. (Scotland) Act 2005. The changes made are aimed at clarifying two issues, namely powers of entry and the apparent disapplication of 1990 Act Part III powers under certain circumstances.

9.4 Section 115 amends section 26 of the Water Services etc. (Scotland) Act 2005 by clearly stating that subsection 10 (which disapplies the powers of Part III of the 1990 Act where the nuisance constitutes a sewerage nuisance) is only disapplied when a sewerage nuisance exists for which a sewerage code exists. There is currently only one sewerage code relating to odour from waste water treatment works and hence the Part III powers apply to any odour nuisance from a waste water treatment works except those for which a sewerage code is in force.

9.5 Secondly section 115 applies the provisions of Schedule 3 of the 1990 Act relating to power of entry to sewerage nuisance. This provides the right of entry to residential premises with 24-hours notice and where entry is refused or is likely to be refused the local authority can seek a warrant for entry by force if necessary. Section 115 is outlined below:-

115 Sewerage nuisance: local authority powers

(1) Section 26 of the Water Services etc. (Scotland) Act 2005 (asp 3) is amended as follows.

(2) In subsection (10), for the words from "nuisance" in the second place where it appears to the end, substitute "nuisance-

(a) which constitutes a sewerage nuisance; and

(b) in respect of which a sewerage code applies.".

(3) After that subsection, insert-

"(10A) Paragraphs 2, 3 and 5 of Schedule 3 to the Environmental Protection Act 1990 (c.43) apply to the exercise of functions by a local authority under this section as they apply to the exercise of functions under Part III of that Act, with the following modifications-

(a) in paragraph 2(1)(a), for "statutory nuisance" substitute "sewerage nuisance";

(b) in paragraph 2(1)(b) and (4)(b), for "Part III" substitute "section 26 of the Water Services etc. (Scotland) Act 2005 (asp 3)";

(c) in paragraph 3(1), for the words from ", on summary conviction" to the end substitute-

"(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.";

(d) in paragraph 3(2), for the words from ", on summary conviction" to the end substitute-

"(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to a fine.";

(e) in paragraph 5-

(i) for the words "executing Part III" substitute "exercising functions under section 26 of the Water Services etc. (Scotland) Act 2005";

(ii) the words from "other" to the end are to be disregarded.".

9.6 Section 125 of the Act implements Schedule 2 of the Act that makes amendment to the Statutory Nuisance (Appeals) (Scotland) Regulations 1996 (S.I. 1996/1076). These regulations outline the appeal provisions against abatement notices served under Part III of the 1990 Act. Schedule 2 provides that where a nuisance falls within sections 79(1)(ea), (faa) or (fba) (that is nuisance from land covered with water, insects and light) at any premises, both commercial and residential, it is a defence to prove that the best practicable means as defined in section 79(9) of the 1990 Act have been used to prevent the nuisance or counteract the effects of the nuisance.

9.7 An unofficial consolidated version of the Statutory Nuisance (Appeals) (Scotland) Regulations 1996 (S.I. 1996/1076) is included as Annex 3 to this guide.