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Summary

Since 2012 the London Boroughs have had the power to issue a civil law fine to the registered keeper of a vehicle if litter was seen being thrown from it.

In 2014 new legislation gave the government the power to introduce Regulations extending these powers to the rest of England.  A key point was that only bodies who had the statutory duty to keep the highway / land, where the offence took place, clear of litter could be given the authority to issue the penalty notices.

For offences committed on the highway this meant Highways England (for all motorways and some trunk roads) and the relevant local authority (for all other highways).

Following sustained pressure from Lord Marlesford in April 2018 the government finally introduced the Regulations but limited the powers to certain categories of local authority and left Highways England out altogether.

People can therefore continue throw litter out of their vehicles onto motorway slip roads with impunity.

It is doubtful that the Regulations  apply to unitary councils, such as the City of Bristol.

In London (from 2012)

Section 24 of the London Local Authorities Act 2007 (amended in 2012) confers powers on borough councils in London to impose a penalty charge on the owner of vehicles from which litter is thrown. Because of a drafting error in the 2007 Act these powers did not come into force until 2012.

An enforcement officer has to show, to the civil standard of proof (i.e. balance of probabilities) that litter was thrown from a vehicle. A penalty charge notice is a civil fine which, unlike a criminal penalty, does not carry the risk of a criminal prosecution, and therefore does not require the offence to be proven to a criminal standard of proof.

 

In the rest of England  (from April 2018)

Section 154 of the Anti-social Behaviour, Crime and Policing Act 2014  amended the Environmental Protection Act, by adding section 88A to it. This enabled the government to introduce regulations extending these powers to the rest of England.

S88 – Fixed penalty notices for leaving litter already gave the power to councils to issue on-the spot fines for conventional littering. This falls under the criminal law as the penalty notices are in lieu of a criminal prosecution under EPA S87 – Offence of leaving litter.

S88A – Littering from vehicles: civil penalty regime is fundamentally different from S88 in the following respects:

It is enabling legislation. Regulations needed to be put in place before penalty notices could be issued.

Regulations can only empower bodies who have the statutory duty under S89(1) of the Environmental Protection Act to keep the highway / land where the offence took place clear of litter to issue the penalty notices.

For offences committed on the highway this means Highways England (for all motorways and some trunk roads) and the relevant local authority (for all other highways).

Following sustained pressure from Lord Marlesford the government finally drew up draft regulations in 2017. These were circulated by DEFRA’s in an April 2017 consultation document.  After approval by both Houses of Parliament they came into force as The Littering From Vehicles Outside London (Keepers: Civil Penalties) Regulations 2018.

How the flaws arose

The regulations could have have defined a “litter authority” for purposes of issuing the fines as:

(a) any person who  is under a duty under EPA section 89(1) in respect of the land where the offence is committed , or

(b) any person who is an authorised officer of a litter authority,

This would have meant that every place that a  offence could be committed, including the motorways and the Isles of  Scilly, would have been covered.

Instead a “litter authority” was defined in both the consultation and the final Regulations as:

(a) a district council in England;

(b) a county council in England for an area for which there is no district council;

(c) the Council of the Isles of Scilly.

However:

Highways England does not fall under any of these three headings and,

They are  the only body who has the statutory duty to keep the motorways and some of trunk roads on their network clear of litter and,

Only  bodies with that duty  in respect to the highway / land where the offence takes can issue the new penalty notices.

This means that this regime is not applicable on the motorways and those trunk roads where HE have the S89(1) duty (motorways etc).  Even if they were inclined to do so the relevant local authority could not act in place of HE on these roads.

 

How Parliamentary was duped by DEFRA over the exclusion of the motorways etc

Highways England, and their predecessor Highways Agency, have always adamantly refused to accept they have the powers to prosecute people seen littering on their network and, more importantly, the operators of waste transport vehicles who spill their loads onto it – a line consistently supported by the DfT.

HE claim this is because they are not a “litter authority”. It is true that they are not a litter authority for the purposes of EPA S88 – Fixed penalty notices for leaving litter  but there is nothing to stop them prosecuting anyone under EPA 87 – Offence of leaving litter or, more importantly, under EPA S34 – Duty of care etc. as respects waste e.g for refuse spilled from waste transporters. They choose not to do this.

It’s not surprising that Highways England / DfT would not have wanted HE to become a litter authority for the purposes of the new EPA S88A. They would no longer have been able to use the mantra “we are not a litter authority – nothing to do with us“. How could this be done without Parliament realising that the new regime would not then apply to the motorways etc.

The answer, it seems, was to imply that the local authorities would be able  to issue the new civil penalties on the whole of Highways England network (the Strategic Road Network) including the motorways when in fact they could only do this on those HE  trunk roads where the local authority retained the EPA S89(1) duty to keep them clear of litter.

So in para 4 of the consultation document DEFRA wrote:

To maintain parity, rather than give new enforcement functions to Highways England in isolation, we propose that district councils should remain responsible for all littering enforcement (criminal or civil) on the Strategic Road Network.

When MPs were asked to approve  the regulations  in Parliament on 31st January 2018 DEFRA minister Therese Coffey said:

“ …. For our highways, and particularly our strategic road network, Highways England has an arrangement with the litter authority, whereby the litter authority is still responsible for clearing the litter from that side. It is perfectly possible for councils to work closely with Highways England once they have these powers, to use the camera footage that will be available to try to tackle and identify those who litter”…..”

[Please refer to the exchange between Vick Ford MP and  DEFRA minister Therese Coffey which  can be read here ]

When the Regulations were debated and approved in the House of Lords  on 1st February 2018. Baroness Jones of Whitchurch asked:

Also, am I right in saying that responsibility for litter on the side of motorways has transferred to Highways England? If so, will it have the same powers to catch and fine drivers throwing litter out of car windows, which again is a real blot on our landscape?

The question was not answered during the debate neither did Maggie Jones receive a written response as is the normal practice in such cases.

Parliament was duped.

 

Can all councils issue the new penalty notices?

Sections 3 and 4 of the Regulations state:

3.  In these Regulations, a “litter authority” means—

(a) a district council in England;

(b) a county council in England for an area for which there is no district council;

(c) the Council of the Isles of Scilly.

4.—(1) A litter authority may give a penalty notice to a person who is the keeper of a vehicle ……

The Gov.uk web site lists the number of each type of local authority  as follows:

2 tier
County councils 27
District councils 201
Single tier
Unitary authorities 55
Metropolitan districts 36
London boroughs 32
City of London 1
Isles of Scilly 1
Total 353

It is clear that Section 3 (a) refers to the 201 district councils which are the lower tier of the county council /district council 2-tier system where this arrangement still obtains. However it’s questionable whether it also includes the 36 metropolitan districts.

3 (b) is intended to refer to what gov.uk describes as the “6 shire county councils that are now unitary (i.e. have no district councils beneath them)”. They are however included  under unitary authorities in the above table – not under county councils.

That leaves the 49 remaining unitary authorities. The ones that were previously district councils in a  2-tier arrangement.  To my mind they are not included and do not therefore have the powers to issue the penalties.

An example would be the City of Bristol which became a unitary authority after the abolition of Avon.

You could argue that 2.1 of the DEFRA’s Explanatory Memorandum attached to the Regulations covers this by stating: In this context, district council includes any metropolitan, borough, unitary, or other district councils, including the Council of the Isles of Scilly, which has the statutory duty to collect litter.

However this definition of “district council” is not included in the Regulations themselves. Most legislation normally includes a section saying precisely what is meant by its key terms. An Explanatory Memorandum cannot define the meaning words in the legislation it is explaining.

When I raised this with DEFRA they wrote:

Definition of “district council” – Section 270 of the Local Government Act 1972 provides that “district”, without more, means, in relation to England, a metropolitan district or a non-metropolitan district. A “district council” is simply the council for the district. A unitary authority may be either a district council which also has the powers of a county council, or a county council which also has the powers of a district, so a unitary authority may be covered by either 3 (a) or (b).  Accordingly, the powers are available to the councils for all districts (whether metropolitan or non-metropolitan, unitary or otherwise) outside London, including the Isles of Scilly.

However S270 of the 1972 Act made this provision only in relation to that Act. It begins by saying “In this Act, except where the context otherwise requires, the following expressions have the following meanings respectively, that is to say”.

It is therefore irrelevant to the issue at hand. It is in fact a good  example of a section in a piece of legislation defining its key terms something lacking from the Regulations.

Looking at the next two sentences DEFRA seem to be maintaining that because a district council became a unitary authority by taking on the powers of a county council it will for evermore continue to fall within the definition of  a district council for legislative purposes. But why should it? It’s no longer a district council.

On 6th Dec 2018 and on 14th January 2019 I wrote to the Permanent Secretary at DEFRA asking for the regulations to be revised.

How the regulations work

Public service vehicles, taxis and private hire vehicles are exempt from liability for a civil penalty notice if the offence is committed by a passenger. The Regulations also provide for businesses engaged in the hiring of vehicles to appeal a penalty charge notice in connection with one of their vehicles by providing evidence that the vehicle was not being kept by the business at the time of the offence by virtue of the relevant vehicle hire agreement.

Those who receive a civil penalty notice will have a right to first make representations to the council under a number of grounds set out in this instrument (e.g. that the person was not the keeper of the vehicle at the time of the offence, or that the offence was not committed etc.) If this does not resolve the matter they will then have a right to appeal the civil penalty notice to an independent adjudicator. The Traffic Penalty Tribunal England and Wales has agreed to act as the independent adjudicator for this enforcement regime, funded via a proportion of each civil penalty notice issued.

The default civil penalty notice will be set at the same level as the local fixed penalty for littering offences. Councils can choose to set the level for both the fixed penalty and the civil penalty notice locally, within a range of £65 to £150, with a default of £100.

Penalties are payable within 28 days. Councils may choose to offer an early-payment incentive, which reduces the civil penalty to £50 if paid within 14 days. If the penalty is still unpaid after 28 days (clock paused during any appeal proceedings), the penalty can be increased by 100%  and it becomes recoverable as a civil debt or as if payable under a county court order. This can be registered with the Traffic Enforcement Centre at Northampton Crown Court.

Recording devices can be used to collect evidence by someone authorised to do so.

 

The London experience 2012 – 2017

 

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