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It is not clear if compliance with the statutory  “Duty to keep land and highways clear of litter” would be enforceable by the new Office for Environmental Protection?

We will campaign to ensure that they will have this power when the legislation is enacted.

The government have published a Draft Environment (Principles and Governance) Bill triggered by our impending exit from the EU.

The Environment, Food and Rural Affairs Committee and the Environmental Audit Committee have launched a joint call for written evidence for pre-legislative scrutiny of the draft Bill.

From the stance of someone concerned about the failure of councils and Highways England to comply with their statutory duty on litter it contains some potentially significant measures.

It is described as a bill to make provision about environmental principles and about plans for improving the natural environment; and to make provision for the Office for Environmental Protection (OEP). 

The OEP will have enforcement functions. Anyone will be able to complain to the OEP if he or she believes that a public authority has failed to comply with environmental law. If the complaint is upheld the OEP can issue a decision notice to the public authority setting out the steps they need to take to remedy the situation.  If the authority does not comply they can apply to the High Court for judicial review of the authority’s actions.

Currently if you want to make a complaints about a council or Highways England’s failure to comply with their statutory duty on litter you have to go to make a complaint to a Magistrates Court under S91 of the Environmental Protection Act. This is complicated, time consuming and you can end up being several thousands of pounds out of pocket.

Contrast this with making a complaint about a public body’s failure to comply with their duty under the Freedom of Information Act. You can make a complaint to the Information Commissioner a no cost and without any risk of financial loss if your complaint is rejected.

The big question is, if the Bill is enacted as currently worded, would compliance with S89 (1) of the Environmental Protection Act – Duty to keep land and highways clear of litter be included in the OEP’s remit?

Section 30 of there Bill defines “natural environment” as (a)  wild animals, plants and other living organisms, (b)  their habitats, (c)  land, water and air (except buildings or other structures and water or air inside them), and the natural systems, cycles and processes through which they interact. 

The Explanatory Notes attached to the Bill indicate which matters might and might not be covered:

Covered : Air quality, water resources, marine and nature conservation, waste management, pollution, contaminated land.
Not covered: Forestry, flooding, navigations, planning, enjoyment of / access to the natural environment, cultural heritage.

It is concerning that litter is not mentioned in either list.

The tacit policy seems to be to declassify “litter” as an environmental matter. The DfT in setting their Environmental Key Performance Indicators for Highways England set ones for “noise” and “biodiversity” but not one for “litter”. As a consequence the statutory monitor for HE, the Office of Rail & Road, does not consider it part of their remit to monitor HE’s compliance with its statutory duty on litter.

I suspect something similar is going on here. I

I have submitted the following evidence to the joint  Commons Select Committee enquiry:

Submission 1

Summary : I am concerned that when this legislation is enacted it will not apply to the statutory duty to keep land clear of litter and Highways England, and many local authorities, will continue to ignore this duty unchecked by an oversight body.  To rectify this references to “natural environment” should be replaced by “environment” and in Section 30 “land” should be amended to “land (including the public highway and public open spaces)”.

Submission 2

Summary:  In my earlier submission I wrote: “Stating explicitly that litter is not covered would of course draw attention to its exclusion. This is why the bill is equivocal on “litter” / EPA S89”.  Committee members may feel that DEFRA would not act in such a Machiavellian way. I have therefore prepared the following note demonstrating how they recently manipulated the Parliamentary system in a similar manner with negative consequences for the nation

Members of the Environment, Food and Rural Affairs Committee

Members of the Environmental Audit Committee

 

Peter Silverman
30h January 2019

 

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