The purpose of this post is to look at DEFRA’s Litter Code of Practice with particular reference to motorway verges and to show how it is routinely misinterpreted by the Highways Agency’s contractors to the detriment of road users.
To open a copy of the Code in another tab / window please action this link Litter Code of Practice. The relevant paragraphs are:
2.6 The relevance of this paragraph will become clearer later. It says that the EPA gives anyone the right to take legal action against a duty body to remove litter from its land “where this falls below the acceptable standard set out in the Code for longer than the period specified“. The specified periods are referred to in 9.4 as the “last resort” “response times”.
7.0 Defines four grades of cleanliness:
A – No litter
B – Predominantly free of litter apart from some small items
C – Widespread distribution of litter with minor accumulations
D – Heavily affected by litter with significant accumulations.
Photographs are provided to illustrate each grade.
7.3 Says land should be not fall below B and should be cleansed to A “on a regular basis”
7.4 Says it may not be practical to remove all items from grass etc and in these cases grade B would be acceptable. Motorway verges would of course fall into this category.
9.1 Says duty bodies are expected to set their cleansing schedules so that they meet the duty to keep their relevant land clear of litter and refuse. The word “keep” is written in italics in the code. All under-linings are mine.
What the code is therefore saying is that there should be a cleansing schedule in place that ensures that verges are cleansed to grade B on a regular basis.
However this is not the interpretation that the Highways’ Agency’s contractors put on the code. Instead they focus solely on the last resort response times.
9.4 Says “As a last resort, if acceptable standards of litter and refuse are not met, response times have been set for each of the four categories (of land) by which land must be returned to an acceptable standard”. (See the reference to 2.6 above).
Motorway verges on slip roads are categorised as “low intensity use” land with a the response time is 14 days.
[This is established in the table on page 23 which includes under roads/low intensity use: “Motorway and trunk roads roundabouts and lay-bys approach and slip roads connecting these roads“. This is repeated in 11.4.6. In 11.4.7, which refers specifically to motorways, the last sentence says “Some areas with slower traffic flows such as on-off roads and roundabouts are often the most littered but are actually easier to manage than areas with less refuge and higher traffic speeds such as central reservations“].
Table 1 on page 21 describes the last resort response times as the “maximum response time to restore to grade A standard if it falls below grade B. (but see 7.4)
Motorway verges elsewhere are classified as areas subject to “Special Circumstances” with a response time of “28 days or as soon as practicable“. Table 1 page 23 says under Roads / Special circumstances: ” carriageways, verges and central reservations of motorways and truck roads”.
Click here to see the definition of “practicable”
The code is therefore also saying that if acceptable standards are not met then things have to be sorted out within 14 days for slip road verges and 28 days, or as soon as practicable, for the rest of the network. This would apply, for example, in the event of a complaint under EPA S 91 (see 2.6 above).
It is a puzzle as to why the “as soon as practical tag” has been added to the 28 day response time but not the 14 day one. Also, does it mean “as soon as practicable but no longer than 28 days” or “as soon as practicable even if it takes longer than 28 days“?
11.4.7 This paragraph is worth highlighting as it is often quoted by the Agency and it contractors. The first sentence says ” On motorways, where safety issues are paramount, it is recommended that cleansing is always carried out alongside routine maintenance to aid maintenance standards“. I interpret this to mean that when you are cutting the grass or cleaning a gully litter pick before you start to ensure you do a good job. It is however often interpreted to mean cleansing should “only” be carried out alongside routine maintenance.
How the Highways Agency and their contractors interpret the code
They see little need for “cleansing schedules” or cleansing to grade B on a “regular basis”. As I have said they focus solely on the “last resort response times” . This is tantamount to saying that they are never able to meet acceptable standards. This is exemplified by Carillion plc, the the ultimate contractor, for most of the M40.
In their practice code for dealing with litter Carillion state that the presence of litter accumulations to grade C is unacceptable and should be returned to grade B within 28 days (weather dependant) for main carriageway and slip roads verges where their is an adjacent hard shoulder, otherwise 28 days or as soon as practical. The Highways Agency has confirmed that Carillon interpret this as “as soon as practicable even if it takes longer than 28 days“.
The notes goes on to say that they carry out inspections of:
Main carriageways and slip roads with a hard shoulder on at least one side – once a fortnightly
Slip roads with no hard shoulder – monthly
Let’s say therefore that a slip road with no hard shoulder is inspected on 1st January. It is more littered than grade B but not as littered as grade C. It would not be regarded as acceptable under 7.4 of the Code and should be cleaned. However, a cleaning need would not recorded as it has not fallen to grade C. On 1st Feb it is inspected again and is now grade C or worse. A cleaning need is noted. It is then has to be cleaned, according to the practice note, by 1st April or later if this is not practicable.
The practice note says that such slip roads are targetted for litter picking twice a year in May and November when I understand they are closed overnight. So I guess they could simply put off the cleaning on practicability grounds to May.
What they should be doing is to operate cleansing schedules and clean their slip road verges on a regular basis to ensure they do not fall below grade B. The frequency would need to be adjusted in the light of experience but would, in my opinion, need to be at least weekly.
The resultant outcome