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Validity of enforcement orders. |
28. - (1) This section applies if a licence holder to whom a final or provisional order relates is aggrieved by the order and wants to question its validity on the ground that- |
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(a) its making or confirmation was not within the powers conferred by section 22, 23 or (as the case may be) 24, or |
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(b) any of the requirements of sections 26 and 27 have not been complied with in relation to the making or confirmation of the order. |
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(2) The licence holder may apply to the court. |
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(3) If a copy of the order as made or confirmed was served on the licence holder the application to the court shall be made within the period of 42 days starting with the day on which the copy was served on the licence holder. |
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(4) On an application under this section the court may quash the order or any provision of it if the court considers it appropriate to do so and is satisfied that- |
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(a) the making or confirmation of the order was not within the powers conferred by section 22, 23 or (as the case may be) 24, or |
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(b) any of the requirements of sections 26 and 27 have not been complied with in relation to the making or confirmation of the order and the interests of the licence holder have been substantially prejudiced by the non-compliance. |
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(5) Where an application has been made under this section, the licence holder concerned shall not be required to comply with the order to which the application relates until the application has been determined, withdrawn or otherwise dealt with; and section 29 shall be construed accordingly. |
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(6) Except as provided by this section, the validity of a final or provisional order shall not be questioned in any legal proceedings. |
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(7) In this section "the court" means, |
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(a) in relation to England and Wales or Northern Ireland, the High Court, |
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(b) in relation to Scotland, the Court of Session. |
Effect of enforcement orders. |
29. - (1) The licence holder to whom a final or provisional order relates shall have a duty to comply with it. |
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(2) The duty shall be owed to any person who may be affected by a contravention of the order. |
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(3) Any breach of the duty which causes such a person to sustain loss or damage shall be actionable by him. |
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(4) In any proceedings brought against a licence holder under subsection (3) it shall be a defence for the licence holder to show that he took all reasonable steps and exercised all due diligence to avoid contravening the order. |
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(5) Compliance with a final or provisional order shall also be enforceable by civil proceedings brought by the Commission for an injunction or for interdict or for any other appropriate relief or remedy. |
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(6) Subsection (5) shall not prejudice any right that a person may have by virtue of subsection (3) to bring civil proceedings for contravention or apprehended contravention of a final or provisional order. |
| Financial penalties |
Financial penalties. |
30. - (1) If the Commission is satisfied that a licence holder- |
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(a) has contravened any condition of his licence, or |
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(b) is contravening any such condition, |
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the Commission may impose on the licence holder a penalty of such amount as is reasonable. |
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(2) The Commission may impose a penalty under this section in respect of a contravention of a licence condition irrespective of whether it has made or may make a final or provisional order in respect of that contravention. |
Statement of policy in relation to penalties. |
31. - (1) The Commission shall prepare and publish a statement of policy in relation to the imposition of penalties and the determination of their amount. |
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(2) In deciding whether to impose a penalty, and in determining the amount of any penalty, the Commission shall have regard to the statement of policy which was most recently published at the time when the contravention concerned occurred. |
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(3) The Commission may revise its statement of policy and, where it does so, it shall publish the revised statement. |
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(4) Publication under this section shall be in such manner as the Commission considers appropriate for the purpose of bringing the matters contained in the statement of policy to the attention of persons likely to be affected by them. |
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(5) The Commission shall consult the Council and such other persons as it considers appropriate when preparing or revising its statement of policy. |
Imposition of penalties: main procedural requirements. |
32. - (1) Before imposing a penalty under section 30, the Commission shall- |
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(a) give notice of the proposed penalty, and |
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(b) consider any representations made in accordance with the notice and not withdrawn. |
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(2) The notice shall state- |
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(a) that the Commission proposes to impose a penalty, |
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(b) the amount of the proposed penalty, |
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(c) the condition which the Commission is satisfied has been contravened or is being contravened, |
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(d) the acts or omissions which the Commission considers constitute the contravention, |
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(e) any other facts which the Commission considers justify the imposition of a penalty and the amount of the proposed penalty, |
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(f) the manner in which, and place at which, it is proposed to require the penalty to be paid, and |
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(g) the period (not less than 21 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed penalty. |
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(3) As soon as practicable after imposing a penalty, the Commission shall give notice of the penalty. |
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(4) The notice shall state- |
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(a) that the Commission has imposed a penalty on the licence holder, |
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(b) the amount of the penalty, |
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(c) the condition which the Commission is satisfied has been contravened or is being contravened, |
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(d) the acts or omissions which the Commission considers constitute the contravention, |
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(e) any other facts which the Commission considers justify the imposition of a penalty and the amount of the penalty, |
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(f) the manner in which, and place at which, the penalty is required to be paid, and |
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(g) the date or dates, no earlier than the end of the period of 42 days from the date of service of the notice on the licence holder, by which the penalty or (as the case may be) different portions of it are required to be paid. |
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(5) The licence holder may, within 21 days of the date of service on him of a notice under subsection (3), apply to the Commission for it to specify a different date or (as the case may be) different dates by which the penalty or (as the case may be) different portions of it are to be paid. |
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(6) A notice under this section shall be given by- |
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(a) serving a copy of the notice on the licence holder and the Council, and |
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(b) publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them. |
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(7) This section has effect subject to section 33. |
Penalties: further procedural requirements. |
33. - (1) The Commission shall not vary the proposed amount of a penalty as stated in a notice under section 32(1) unless- |
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(a) the licence holder consents to the variation, or |
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(b) the Commission complies with the requirements of subsection (2). |
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(2) The requirements are that the Commission shall- |
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(a) give notice of the proposed variation, and |
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(b) consider any representations made in accordance with the notice and not withdrawn. |
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(3) The notice shall state- |
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(a) the proposed variation, |
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(b) the reasons for it, and |
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(c) the period (not less than 7 days starting with the date of publication of the notice) within which representations may be made in relation to the proposed variation. |
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(4) If, after giving notice under section 32(1) or subsection (2) of this section, the Commission decides not to impose a penalty, it shall give notice of that decision. |
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(5) A notice under this section shall be given by- |
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(a) serving a copy of the notice on the licence holder and the Council, and |
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(b) publishing the notice in such manner as the Commission considers appropriate for the purpose of bringing the matters to which the notice relates to the attention of persons likely to be affected by them. |