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Under the Infrastructure Act:

Highways England became a duty body for the purposes of Environmental Protection Act S89  (See Infrastructure Act Schedule I Section 111)

One of its functions therefore is to ensure, so far as is practicable, that its network is kept clear of litter and refuse.

The Secretary of State may set or vary a Road Investment Strategy (RIS). (S3) (1)

A RIS must specify the objectives to be achieved and the financial resources to be provided by the Secretary of State for the purpose of achieving those objectives. S3 (3).

The Office off Rail & Road (ORR) must carry out activities to monitor how Highways England exercises its functions. (S10 (1))

Those activities may include investigating, publishing reports or giving advice to the Secretary of State on whether, how and at what cost HE has achieved its objectives under a Road Investment Strategy (S10(2)).

The DfT’s Road Investment Strategy (published in March 2015):

This did not make  a single reference to “litter” or the EPA S89 Duty in spite of making 130 references to “environment”. There were 31 references to “biodiversity”, 35 to “noise”, 21 to “air quality”. “Clean” was only used in reference to air / fumes.

8 Key Performance Indicators (KPIs) are set out against which, it says, the performance of HE will be assessed covering: Safety, user satisfaction, traffic flow, encouraging economic growth, environmental outcomes, cyclists and other vulnerable users, efficiency, keeping the network on good condition.

HE took up its role in April 2015.

Meeting with ORR (June 2015)

 I met with the ORR’s Highways Director.  I had given him a copy of the Clean Highways’ Dirty Dossier of 188 complaints received about litter on the Highways Agency network between 1st January and 17th March 2015.

ORR’s review of Highways England’s performance April – September 2015:

Reflecting the approach taken in the RIS, in its 49 pages this document did not make a single reference to “litter”. Cleaning was only mentioned in relation to clean air. It made 15 reference to “noise” and 17 to “biodiversity”.

It’s list of performance indicators shows that “litter” was not included as a component of either “Delivering better environmental outcomes” or “Keeping the network in good condition”.

HE bonus payments

HE bonus payments  are based on performance against the RIS.  HE staff and its Board therefore have no financial incentive to comply with the the EPA S89 duty on litter (see statement by DfT minister).

Meeting with ORR (March 2016) and follow up

I met again with the ORR on 7th March 2106. They had already received from me a further dossier of 128 complaints about litter on the HE network received by Clean Highways in the previous 3 months. I advised  them to write to HE as a matter of urgency to raise the issue of their continuing  failure to comply with their statutory duty on litter.

On 17th March wrote to them saying:

I believe the ORR should take as its brief only what Parliament has set out in the Infrastructure Act. You should ignore anything the RIS and the License has to say about your role as the Act does not give the DfT the power to modify the duty Parliament has laid down for you.

That duty is to carry out activities to monitor how Highways England exercises its functions. You are required to target cases where action is needed. HE’s non-compliance with its statutory duty on litter is surely one such case.

However on 30th March the ORR wrote to Michael Pease referring to:

.. our monitoring and assessment of Highways England’s performance ……  against the Road Investment Strategy and its Licence..

The ORR seem to be adamant that they will only monitor HE against the requirements set down by the DfT which exclude how it performs its statutory duty in regard to litter. This is in breach of the ORR’s duty under S10 (1) of the Infrastructure Act.

The chairman of the ORR is an appointee of the Secretary of State for Transport i.e of the DfT who fund the organisation. 

On 8th April I e-mailed the Chairman, Professor Glaister, pointing out their statutory duty to monitor HE’s compliance with the duty under EPA S89 and urging him to get the ORR to inspect the network as a matter of urgency, and to make their findings public.

Highways England – Legislation and key documents
Infrastructure Act,
Highways England License,
Road Investment Strategy ,
Delivery Plan 2015 – 2020
The Office of Rail & Roads first 6 monthly monitoring report on HE

Solving the litter problem

2 minute video – Duty to keep land clear of litter

Peter Silverman
8th April 2016




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