UK Offence Report

Power of court to make restriction orders: England and Wales

paragraph 109D(12) of SCHEDULE 2 of The Waste Enforcement (England and Wales) Regulations 2018

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

12 A restriction order must—

a identify the premises, or part of the premises, to which the order applies;

b explain the effect of the order;

c state that failure to comply with the order is an offence;

d state that the removal of

a copy of

a restriction order fixed to

a normal means of access to the premises is an offence;

e state the penalties applicable to

a person guilty of an offence.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
failing to comply with a notice or direction
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; other provisions of the same instrument use a mens rea word while this one does not (the Cundy v Le Cocq contrast).

What would breach paragraph 109D(12) of SCHEDULE 2?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Being served with a notice under the Waste Enforcement (England and Wales) Regulations 2018 and doing nothing by the date it specifies.
  2. Doing part of what the notice requires, where it required all of it.
  3. Disagreeing with the notice and ignoring it, rather than using whatever appeal the instrument provides.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
8 March 2018
In force from
Not determined
Extent
E+W

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations amend the Environmental Protection Act 1990 (c. 43) and the Environment Act 1995 (c. 25) for England and Wales in connection with Directive 2008/98/EC of the European Parliament and of the Council on waste (OJ L 312 22.11.2008, p. 3). Regulation 2 amends the Environmental Protection Act 1990 by inserting sections 59ZB and 59ZC. These sections give a waste regulation authority or waste collection authority (defined respectively in section 30(1) and (3) of the Environmental Protection Act 1990) the power to issue a notice in respect of waste which is unlawfully kept or disposed of in or on land within the authority’s area. A notice may be issued on the occupier of the land or (in the circumstances in section 59ZC(2) to (4)) on the owner of the land, and may include requirements to remove waste and take steps (to be specified in the notice) to eliminate or reduce the consequences of the unlawful keeping or disposal. A person who fails without reasonable excuse to comply with a requirement is guilty of an offence (sections 59ZB(6) and 59ZC(4)). A requirement may be appealed. A waste regulation authority or waste collection authority may also take the required action and recover the costs of doing so from the occupier or owner of the land or from any other person who knowingly caused or permitted the keeping or disposal of the waste (section 59ZB(7) to (9)). Regulation 3 amends the Environment Act 1995 by inserting sections 109A to 109N. These sections give the Environment Agency and the Natural Resources Body for Wales (“the regulators”) the power to issue a “restriction notice” and to apply to the courts for a “restriction order”. A restriction notice (section 109A) is a notice prohibiting access and the importation of waste to premises for a period specified in the notice of no more than 72 hours. This can only be issued where a person authorised by the regulator is satisfied in accordance with section 109A(2). A restriction order (section 109D) is an order made by the courts which prohibits access and the importation of waste to the premises for a period specified in the order, which may not exceed 6 months. It can be extended, varied or discharged (sections 109F and 109G). A decision of the courts may be appealed (section 109L). A regulator may apply to the courts for reimbursement of expenditure for the purpose of securing premises in respect of which a restriction order is in force (section 109K). On application from an occupier or the owner of other premises to which access was impeded by a restriction notice or restriction order, a court may order the regulator to pay compensation to that person in respect of financial loss incurred in consequence of the notice or order. The court may order such compensation to be paid where it considers that it is appropriate to do so (section 109M). Regulation 4 contains transitional provision in respect of the amendments made by regulation 2. An impact assessment has not been produced for this instrument in relation to England as no, or no significant, impact on the private, voluntary or public sector is foreseen. The Welsh Ministers’ Code of Practice on the carrying out of Regulatory Impact Assessments was considered in relation to these Regulations. As result a regulatory impact assessment has been prepared as to the likely costs and benefits of complying with these Regulations in relation to Wales. A copy can be obtained from the Waste Regulation Policy Team, Department for Environment and Rural Affairs, Welsh Government, Cathays Park, Cardiff, CF10 3NQ and is published on www.gov.wales.

Read the full note and every offence in this instrument

What Parliament said

Mentions of this instrument in Hansard. Parliamentary material is reused under the Open Parliament Licence v3.0.

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.88.

Basis
the provision says the conduct “is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.88 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source