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This post explains how you can use Section 91 of the Environmental Protection Act if you are  “aggrieved by the defacement by litter or refuse of  a highway or road“. It explains how you can apply to apply to a Magistrates Court for a Litter Abatement Order.  This is an instruction from the court to the duty body to clear the litter or refuse within a given time – or face a fine.

It is based on my experience in taking actions against local authorities and the Highways Agency (for motorways). Please refer to the case study menu.

These procedures are applicable in cases where litter  has been allowed to build up over at least a week or two.   It does not apply in the case of a busy road or pavement e.g. a High Street where too much  litter is allowed to accumulate between daily or weekly clean-ups.  This is because the duty body has to be given 5 days advanced notice .

To whom do you complain

The duty to keep our highways clear of litter, according to EPA S89, lies with:

The Secretary Of State for Transport for motorways (aka special roads).

However, in addition to the motorways he is also responsible for certain A roads (trunk roads) where the duty to keep them clear of  litter has been  transferred to him  in his capacity as a  highways authority under EPA 86(11). Click  this link   “retained litter cleaning duties” to see a list of these roads.  Please note the Sec of State is not responsible for cleaning all of the roads managed by the Highways Agency only the motorways and  those on this list.

The local authority for all other roads.

Make an informal complaint

Before resorting to the law make an informal complaint by e-mail.  The address for the Highways Agency is ha_info@highways.gsi.gov.uk
Be very specific about the location of the problem.
Refer to the area as being “defaced by litter and refuse” or “badly littered”.  Clean and cleanliness could be interpreted as referring to detritus i.e. leaves etc .
Do not go over the top . “I am concerned about… I would appreciate it if you could…”  will work better and show you in a good light.
You do not need to attach a photograph but you should retain one for your records .  Make sure you camera records the correct date and time of the photograph.

Making a formal legal complaint (EPA Section 91 Notice)

If an informal complaint  does not produce an adequate response then you can issue a `Section 91 EPA Warning Notice”.
It does not cost you anything and often produces instant results.   Again I suggest using e-mail.
Click here to see a wording template

Applying to the Magistrates Court for a Litter Abatement Order

If this has not worked then, after the 5 day notice period has expired, you can go to the next stage and apply to a Magistrates Court for a Litter Abatement Order.

Timing

However you may want to leave it for a further period to give the duty body more time to remove the litter and to give you time to take more photographs to build up your case.  I suggest you wait until 28 days after your informal complaint before you do this.  This is because the Litter Code Of Practice can be interpreted as allowing the duty body up to 28 days to rectify the problem.

Locate the Magistrates Court nearest to the location you are complaining about.

Preparing your documents

Your complaint will consist of:

1.  A letter – see example

2.  A formal complaint. See our  wording template .

3.  A Statement – see example

4.  Photographs.  It is essential that you include photographs taken shortly before making your complaint.  If before the court hearing the litter has been cleaned up to get your costs you will need to establish that the road was defaced by litter “at the time you made the complaint” .  It will help if you also include photos taken over a time to show the problem was a persistent one.

5.  A  map showing the relevant location(s)

6.  A copy of the EPA Section 91 Warning Notice

7.  A draft summons for the court to complete.  See wording template

Make 3 copies and bind them together.

You need to package these items up in a large sealed envelope addressed for the attention of the Clerk to the Justices, XYZ Magistrates Court etc  and a cheque for the court fee for £200 made payable to “HMCS” .

Submitting your complaint to the court

Hand the envelope over at the reception counter as if you are delivering some post. Do not say what it is and  avoid getting into a discussion with the counter staff or anyone else.   The reason  is that you might told erroneously, as I have been, that it’s a civil matter and cannot be dealt with by the Magistrates Court or that it has to be checked by their legal staff before it can be accepted.  Just deliver it and make a note of the time.

After you have submitted your complaint take a further set of photographs. These, together with those taken shortly before the date of the complaint, will help establish that the road in question was defaced by litter at the time the complaint to the court was made.

Issuing the Summons

If you do not hear anything for a while check to see if your cheque has been cashed.  Chase the court by phone if necessary.

They should contact you to discuss a convenient time and date for the initial hearing. This may be a couple of months after the complaint date.

Later they should send you a copies of the summons and complaint duly signed by the Justices ‘ Clerk.

You should deliver this to the defendant with a covering letter.  See template.  Again take a copy of the letter and get it signed by the receptionist as proof of delivery.

You should still do this even if the offending litter has been cleared in order to get you costs.

If the litter is cleared..

…. after you have made your complaint to the court but before the initial hearing  you should write to the court, with a copy to the defendant, saying that as the litter has been removed there is no longer any need for the court to issue a Litter Abatement Order but you will be applying for your costs under EPA Section  91(12).

This says that if  the court is satisfied that, at the time the complaint to the court was made, the highway in question it was defaced by litter  it must award costs to the complainant.  This is why it is so important to have strong evidence that the road was badly littered at the time of the complaint to the court.

Do not be bullied by letters from the defendant’s solicitors saying they deny all charges and will vigorously defend their client. Do not get drawn in to a debate.

The defendant may want to settle out of court and pay you the costs directly.  Before agreeing to this make sure they accept in writing that at the time of your complaint the road was defaced by litter.  You may prefer to have your day in court in which case do not settle out of court.

At the court hearing

Get their early and let the usher know you have arrived.  The hearing will be in front of 3 Magistrates and a clerk. (Although it may be before a District Judge).  The defendant may be represented by a solicitor or barrister

If there is no longer a need for an order and you are only seeking your costs, have a schedule of costs ready. You can include all the costs you have incurred in addition to the £200 court fee including travel, photography and printing.

Provided your  evidence is solid you should be granted costs and will have achieved your objective.

In the unlikely event that  the highway in question has still not been cleaned up and the defendant wants to contest the Litter Abatement Order, the court will not decide the matter there and then.  It will set  date for a second hearing and will want to know how much time both parties will need to prepare their cases.

I can see very little chance that things would ever go this far where the complaint is genuine and  supported by good evidence.  If however you are in this position then you should take further advice after the initial hearing .  You should assess the further costs that may be incurred and the likelihood of winning your case.

Disclaimer: I am not a lawyer. This is not legal advice. The information provided on this page and elsewhere on this web site are provided in good faith and is for guidance only.

All posts on Litter Abatement Orders

Also see Campaign To Protect Rural England’s Guide on Litter Abatement Orders

 

Peter Silverman

 



 

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