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This appeal concerns a Penalty Notice dated 1 October 2019, served by the Respondent pursuant to regulation 46 of the Energy Savings Opportunity Scheme Regulations 2014 (�The Regulations�). [1] �The Regulations came into force on 17 July 2014.
The Regulations require large undertakings (as defined) to carry out an ESOS Assessment to audit their energy use in four-year cycles. The audit is then used to analyse the undertaking�s energy consumption and identify ways of improving its energy efficiency. The Regulations give domestic effect to the EU Energy Efficiency Directive 2012/27.
The Regulations include an enforcement mechanism whereby the scheme administrator, the Environment Agency, may serve an Enforcement Notice on a relevant undertaking (regulation 38) if it has not either conducted the assessment or satisfied the Environment Agency that it does not meet the requirements of the scheme. �The Environment Agency may subsequently impose a Penalty Notice in respect of a failure to comply with that Enforcement Notice (regulation 46).� There is a right of appeal to this Tribunal against a Penalty Notice (regulation 48). ��
The parties and the Tribunal agreed that this matter was suitable for determination on the papers in accordance with rule 32 of The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009, as amended. The Tribunal considered an agreed open bundle of evidence comprising 92 pages.
The Notice of Appeal dated 23 October 2019 relies on grounds previously put forward to the Respondent in correspondence relating to the Notice of Intent on 22 May 2019 and also a letter dated 16 October 2019 in response to the Penalty Notice. �In summary, the Appellant�s case is that it did not initially consider that it was required to comply because it did not agree that it met the definition of a �large undertaking� in the Regulations. It was submitted that the published guidance on this was unclear. �The Appellant asks the Tribunal to cancel the Penalty Notice and the publication penalty.
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