Progress report

M6 J16 M_square

M6 J16 in Highways Agency ASC managed Area 10

“So depressing to start and end my work day with a drive up the M1 and A38 in Derbyshire.  Sickening amounts of litter and plastic.” NH

“Motorway (and other) roadside litter is a disgrace to the country.  Keep up the good work”. AF

“Whole journey on the M6 from Junction 18 to 13 was blighted by litter”.  JR

“My husband and I traveled from Manchester down to north Wales and the litter was unbelievable” – CM

“.. same problems down south on the M27 & M3. Simply dreadful. Have to complain all the time” – RN

Read more comments like these

 

Our highways are blighted by litter –  not only the motorways, but also many of our local authority roads.

Why is this when the authorities controlling our public spaces are under a legal duty to keep them clean and have wide powers to act against those who deposit waste and litter on them? What can now be done to put matters right?

After five years of research I believe I can attempt to answer to these key questions. However before doing so  I would like to mention two recent developments. The first concerns the motorways.

The Highways Agency’s network of English motorways and trunk roads is split into 25 areas  each with its own maintenance contractor. Since 2012, as each contract has expired the work has been put out to tender using a new “Asset Support Contract” (ASC).

On 1st September 2014 Colin Matthews was appointed Chairman of the Highways Agency. He was brought in following the decision to turn the Agency into a government owned company, Highways England.

On 3rd October I wrote to him with a briefing note highly critical of the ASC.

On 17th December the decision was taken to suspend the ASC.

On 29th January it was announced that Chief Executive of the Agency, Graham Dalton, would to stand down in the summer.

The second was Clean Highways being featured in BBC1’s “Don’t Mess With Me ” on 28th November 2014. Here is the 7 minute clip:

 

So let’s take a systematic look at the whole problem starting with the legal duty placed on public bodies to keep their land clean and ending with a set of action points for government,

 

Duty to keep land clear of litter

Under S89(1) of the Environmental Protection Act 1990 duty bodies are required to ensure, so far as is practicable, that their land is kept free of litter and refuse.

Duty bodies include local authorities in respect to local roads & parks and the Secretary of State for Transport in respect to the strategic network of motorways and trunk roads in England managed by Highways England, the new state owned company that has taken over from the Highways Agency.

In doing this they have to have regard to the Litter Code of Practice issued by DEFRA. Read more here.

 

Exercising the duty

Duty bodies should therefore be picking up litter and refuse promptly where it is practicable to do so.

A sensible approach would be to litter pick with sufficient frequently that an acceptable standard is maintained, say, 90% of the time. This could be supplemented by mobile patrols to identify and deal with one off events and known black spots. These patrols could also respond to feed-back from the public and street champions.

The “broken window theory” predicts that clean well maintained areas will be subject to less deliberate littering and less anti-social behaviour in general.

Deterrence is equally important. Duty bodies have a panoply of legislation to assist them. They can prosecute those who drop litter, fly-tip or allow it to fall from their vehicles.

Local Authorities can also issue on-the-spot penalty notices in lieu of a prosecution. The revenue raised can be retained and used to cover the costs involved.

They can use Litter Clearing Notices to force private land owners to clear their land. They can serve Street Litter Control Notices on retail premises requiring them to prevent adjacent land becoming defaced by litter.

Residents who deposit household waste outside the curtilage of their properties, other than in an approved receptacle, can also be prosecuted (EPA S33).

Waste transport operators, including those operating skip lorries, whose loads spill onto the highway can be prosecuted under EPA S34 -Duty of care as respects waste.

Publicity and education programmes can be used to make potential litterers aware of the consequences of their actions.

 

However in spite of this, with some notable exceptions such as central London and the London Underground, so many of our public spaces are often defaced by litter and refuse.  Why aren’t duty bodies fulfilling their EPA S89 (1) duty?  

 

Why the legislation is not working

No scrutiny of Duty Bodies

 The single most important reason is that there is no one, apart from Clean Highways, scrutinising the compliance of duty bodies with their EPA S89 (1) duty. It a law without any policing.

DEFRA is not doing this. They have only one full time member of staff working on Local Environment Quality which includes litter, graffiti and dog fouling.

Keep Britain Tidy are not doing this. They are funded by government and obtain income from carrying out surveys for local authorities and consequently are not in the business of criticising the hands that feeds them.

The citizen’s legal remedy is not fit for purpose

It is therefore left to the private citizen to hold duty bodies to account by making a complaint to a Magistrates’ Court under  EPA S91 -Summary proceedings by persons aggrieved by litter. Read more here

The process can take six months and involves two court appearances. The duty body will invariably employ a Barrister and, if the citizen is unsuccessful, he can find himself having to pay costs in excess of £10,000. Read more

DEFRA’ Litter Code of Practice is also not fit for purpose

The introduction of “last resort response times” means that the Code effectively offers duty bodies two alternative standards, one consistent with EPA S89 (1) and one that is not. Read more.

On-the spot fines are not effective against juveniles

Councils are reluctant to issue Fixed Penalty Notices to juveniles because of the extra requirement to comply with the Children’s’ Act 2004. Also, in the event of non-payment Magistrates are rightly reluctant to give the young person a criminal record for dropping what might be a minor item of litter. This has rendered the process ineffectual in the case of one of the main groups of offenders.

 

Consequences

The lack of scrutiny of duty bodies has given rise to a fall in standards as evidenced by:

A decline in funding by Councils

In 2014/15 English councils budgeted to spend 19% less in real terms on street cleansing than they did in 2010/11.

This now amounts to only 0.71% of budgeted expenditure i.e. less than 1p in every £  – or just £32 per annum per household.

 Expenditure is low and is falling. Source data

The acceptance of collateral littering from domestic waste collection

To save money by reducing collection times many councils act in breach of EPA S33 by tacitly encouraging residents to leave their bags of waste out in the street for collection. Their contents are often therefore dispersed by vermin. Read more

The neglect of certain roads

Councils often neglect roads with no voters in residence to complain about them. These include both rural roads and main roads.

Some of the neglected roads are All Purpose Trunks Roads i.e. roads that are part of the strategic road network operated by Highways England (Highways Agency). While the Highways England carry out repairs and cut the grass the local council has to pick up the litter. They are ill equipped to do this work on such high speed roads where the cost of providing traffic management is an exacerbating factor.

A parallel situation obtains in London where the Boroughs have to clean TfL maintained roads such as the North Circular.

The A1 in Gateshead, for example, is only cleaned once a year. The A41 through Aylesbury is only cleaned once every 3 months. The A61 and A617 in Derbyshire is only cleaned once a year.

Councils being unaware of their responsibility to clean trunk roads

North East Lincolnshire Council (A180), West Berkshire Council (A34), Basingstoke and Deane Borough Council (A34) and Durham County Council (a66) have all denied that they are responsible for cleaning  sections of All Purpose Trunks Roads running through their areas. Read more

Poor contract management

Where road cleansing is contracted out performance standards can fall. The contracts commonly fail to specify outputs and/or inputs in such a way that the duty body can monitor performance and manage the contractor. The duty body seems to just want to get the responsibility off their shoulders and to save costs. Read more

Waste transport vehicle operators being allowed to get away with poorly secured loads.

A considerable amount of the litter on high speed road arises from poorly netted, waste transport vehicles. Councils and the Environment Agency no longer seem interested in prosecuting the operators of such vehicles.  There is also no appetite to prosecute the operators of other commercial vehicles whose vehicles can often leave a trail of litter behind them. Read more

 

It’s not all bad news however

Highways England suspend Asset Support Contract suspended

Following our two year campaign against the Highways Agency’s new service provider contract – but only two months after drawing it shortcomings to the attention of their new Chairman – they have withdrawn outstanding tenders to “give further consideration to what the successful contractor will be required to deliver under the terms of the new contract”. Read more here.

Councils make good use of contractors to issue more on-the-spot-fines

One of the positive developments in combating litter in recent years has been the use by councils of contractors to issue on-the-spot Fixed Penalty Notices.

Central London and the Tube

Central London’s streets and its underground are clean. The reason is apparent for all to see. The streets platforms and trains  are cleaned with a sufficient frequency that even small accumulations are rarely allowed to build up.

What needs to be done 

The Litter Code of Practice should be revised so that it  gives clear unequivocal guidance with the emphasis on regular, rather than reactive cleaning.

There should be an option to issue On-The-Spot Penalty Notices for littering so that if they are unpaid the offender can be dealt with under civil law. This will  save court costs and mean that juveniles could be issued with fines as non payment could not lead to their getting a criminal record. A similar regime currently operates in London for litter dropped from vehicles. Read more

To combat the scourge of fly-tipping the depositing of all household waste at collection/ treatment centres should be made free of charge. This should include building and refurbishment waste as well as furniture etc whether deposited by the householder or his contractor. The costs of processing it should be recovered via general taxation.

Central government should encourage councils to issue more on-the-spot Penalty Notices for littering instead of doing the very  opposite.  Where they feel it is appropriate councils should not be discouraged from employing specialist contracting firms for this purpose.  Read more

Consideration should be given to legislating that all waste transport containers including skips should be mechanically sealed when on the move.

Highways England and TfL should take over responsibility for cleaning all of the trunk roads in the respective networks. The same body should be responsible for cutting the grass and picking the litter.

We need an EPA S89 Compliance Authority responsible to Parliament tasked with job of making sure duty bodies are aware of, and comply with, their responsibilities and make good use of the legislative tools available to them.

They should check that where cleansing is contracted out, the work  is specified in such a way that the contractor’s performance can be monitored and penalties applied when necessary, and that the procedures laid down are actually implemented.

 

Peter Silverman
30th January 2015

 

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