4. Enforcing the requirement for duty bodies to keep land clear of litter and refuse – Litter Abatement Notices (section 92)
4.1 Section 92 of the Environmental Protection Act 1990 enables authorities to take action where a duty body is failing to keep its relevant land clear of litter and refuse. The power to issue a Litter Abatement Notice is available to principal litter authorities, other than county councils or joint boards, and may be used where any relevant Crown land, or land of a designated statutory undertaker, or designated educational institution is defaced by litter or refuse, or the defacement is likely to recur. Definitions of these types of ‘relevant land’ are given in section 86(5), (6) and (7) of the 1990 Act.
4.2 A Litter Abatement Notice may specify either, or both, of the following (subsection (2)):
• A requirement for the litter or refuse to be cleared within a certain time. In specifying a time period, local authorities should take into consideration the timings and guidance provided in the Code of Practice on Litter and Refuse for the type of land and litter in question.
• A prohibition on permitting the land to become defaced by litter or refuse.
4.3 The notice must be served on the responsible duty body, namely the appropriate Crown authority, statutory undertaker or governing body of the educational institution. Subsection (4) provides a person on whom the notice has been served with a right of appeal against it to the magistrates’ court.
4.4 It is an offence for someone ‘without reasonable excuse’ to fail to comply with the requirement or prohibition specified in the notice, punishable by a maximum fine at level 4 (currently £2,500), together with a further fine of one-twentieth of that amount (£125) a day for each day that the offence continues after conviction (subsection (6)).
4.5 In proceedings on an appeal against, or for breach of, a Litter Abatement Notice, it is a defence for the defendant to prove that he has complied with his statutory duty under s.89(1) (subsections (5) and (7) of section 92). Subsection(8) states that the Code of Practice on Litter and Refuse is admissible as evidence, and where relevant must be taken into account. The standards set out in the Code of Practice are therefore likely to be crucial in determining, in the first place, whether a defendant is complying with his statutory duty, and secondly, whether the standard of cleaning is sufficient to comply with the notice.
4.6 Local authorities also have the power, if a person fails to comply with the notice, to enter the land, clear it of litter and refuse, and recover the cost of doing so (subsection (9)). Local authorities are only permitted to reclaim the actual costs incurred in carrying out the clearance, and may not be able to reclaim full costs if the person shows that any of the expenditure was unnecessary. Civil proceedings for debt recovery may be brought by the local authority against the person if he fails to pay. Local authorities may not exercise the power in subsection (9) in respect of Crown land which is occupied for naval, military or air force purposes (subsections (10) and (11)). Further to subsection (10), Subsection (12) allows the Secretary of State to specify, by order, any relevant land of a statutory undertaker to which subsection (9) should not apply. This power has not been exercised.
4.7 See section 10 of this guidance for information regarding entry onto land and exclusion of liability.
4.8 A suggested model form for Litter Abatement Notices is provided at Annex B. Local authorities may wish to use this as a guide when issuing notices under section 92.