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S89 (7) of the Environmental Protection Act 1990 says the Secretary of State shall prepare and issue a code of practice to provide practical guidance on the discharge of the duties imposed under S89(1) – Duty ensure land is kept clear of litter.

To read more about the relationship between the Act and the Code please go to EPA S89(1) and the Litter Code of Practice.

I have a number of concerns about DEFRA’s resultant Litter Code of Practice and would argue that it is in need of urgent revision. I will however just focus on one issue – the introduction by its authors of its “last resort response times“.

Even if DEFRA did not intend to do so their introduction has meant that the Code effectively offers duty bodies two alternative standards, one consistent with EPA S89 (1) and one that is not.

The first is spelt out in sections 7.3 and 9.1

LCOP 7.3 … It is expected that managers of land should, through monitoring and the appropriate use of resources, keep their land clear of litter and refuse so that it does not fall below a grade B and is cleansed to an A on a regular basis.

LCOP 9.1 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.

However LCOP 9.4, and the associated Table 1, offer a more relaxed approach.

LCOP 9.4 As a last resort, if acceptable standards of litter and refuse are not met, response times have been set for each of the four categories by which land must be returned to an acceptable standard.

The response times are shown in Table 1. For example, it is 14 days for a lay-by on a rural trunk road.

In practices duty bodies commonly interpret their duty as being just to comply with the response times and regard the trigger that starts the stopwatch as being the receipt of a complaint from a member of the public.

The aforementioned rural lay-by it might accumulate litter for months before a complaint is made and anything is done about it.

Surely the whole point of the code is to advise duty bodies on how to meet their EPA S89 duty. It should not offer an alternative regime which sets lower standards.

Further reading:

How the Litter Code is misinterpreted (1)

How the Litter Code is misinterpreted (2) – Paragraph 11.4.7

How the Litter Code is misinterpreted (3)  Transfer of S89(1) duty to HA

How the Litter Code is misinterpreted (4)

Peter Silverman
19th January 2015

 

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