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To comply with their obligations under S89(1) of the Environmental Protection Act 1990  duty bodies should specify cleansing procedures which their managers / contractors can readily translate into a work program and whose fulfillment against specification can be monitored.

The function of DEFRA’s Litter Code of Practice is commonly misunderstood. Compliance with it is not mandatory. It is there to provide guidance to duty bodies.

Duty to keep land and highways clear of litter

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The relevant sections of the EPA are S89 (Duty to keep land and highways clear of litter)  and S91 (Summary proceedings by persons aggrieved by litter).

EPA Section 89 (1) imposes a duty on  certain bodies including educational institutions, local authorities and Highways England  to ensure that the land under their control is, so far as is practicable, kept clear of litter and refuse. Highways England in this context are responsible for the English motorways (special roads) and some trunk roads.

S89(2)

S89 (3) says, in determining what standard is required, duty bodies shall have regard to the character and use of the land as well as the measures which are practicable in the circumstances.

S89  (7) says the Secretary of State (for Environment, Food and Rural Affairs) shall prepare and issue a code of practice to provide practical guidance on the discharge of the duties imposed under S89(1).

S89 (10) says anyone subject to a duty under S89(1) shall have regard to the code of practice.

S91 (7) says the magistrates’ court shall not make a litter abatement order if the defendant duty body proves that he has complied, with his duty under section 89(1).

S91 (11) says the  LCOP shall be admissible in evidence in such proceedings and if any provision of it appears to the court to be relevant it shall be taken into account.

The function of the Litter Code of Practice

The Litter Code of Practice (LCOP] is therefore something that duty bodies should “have regard to” in complying with S89(1).  It is for guidance. It is not mandatory. It is referred to in an Act of Parliament but is not in itself  law.

It is not intended to be like the “Highway Code” i.e. a rule book for anyone carrying out or involved in cleansing land and highways.

Specifying cleansing procedures

So what should duty bodies do to comply with their EPA S89(1) duty? Common sense would suggest that they should:

Draw up and publish a set of procedures specifying a cleansing regime for each type of land under their control.  This would take into account “the character and use of the land and the measures which are practicable in the circumstances” and any guidance in LCOP which the duty body felt appropriate.

The procedures would specify the frequency of cleaning, or of inspections if a reactive process was felt to be appropriate.

The procedures should be specified in such a way that:

The responsible managers, whether employed by the duty body or by a contractor, can translate them into a work program for his operatives.

Where contractors are used the duty body can monitor whether the service is being delivered to specification. The contract should allow for sanctions / financial penalties to be applied when they are not.

Some of these points are reflected in LCOP.  LCOP 6.1 encourages duty bodies to publish their cleansing regimes. LCOP 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, and highways clean.

In drawing up a cleansing contract while it might be appropriate to refer to certain definitions in the Code such as the grades of cleanliness any general reference to the contractor complying with, or having regard to, LCOP would not.

Peter Silverman
28th September 2013

 

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