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Summary

In a 2007 Act of Parliament the intention had been to give the London Boroughs the powers to issue a civil law fine to the registered keeper of a vehicle if litter was seen being thrown from it. Due to a drafting error this did not become law until 2012.

In April 2018 similar powers were given to councils in England. However the wording of the regulation was in my view defective in two regards.

Firstly, it only gives the powers to district councils (local councils which share responsibilities with a county council under a 2-tier arrangement), and to  6 counties who are constituted as single tier unitary authorities and to the Council of the Isles of Scilly. The other unitary authorities and the metropolitan districts, i.e where most people live, have been left out!

Secondly, the powers cannot be applied on any part of the Highways England network where HE  have the statutory duty to keep them clear of litter i.e. on all the motorways in England and many of the strategic trunk roads.

It’s a huge mess. On 6th Dec 2018 I wrote to the Permanent Secretary at DEFRA asking for the regulations to be revised as a matter of urgency.

Detail

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. These powers came into force in 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 to enable the government to introduce regulations which would confer similar powers on other councils

The Littering From Vehicles Outside London (Keepers: Civil Penalties) Regulations 2018  confers these powers on councils in England outside London. An Explanatory Memorandum was produced to go with the new regulations

Can all councils issue 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 still obtains.

Similarly (b) clearly refers to what gov.uk describes as the “6 shire county councils that are unitary (ie have no district councils beneath them)” . They are included in the above table under unitary authorities. They are: Durham County Council, Herefordshire Council, Northumberland County Council, Rutland County Council, Shropshire Council, Wiltshire Council.

What is equally clear however is that the remaining 49 unitary authorities and the 36 metropolitan districts are not included in either (a), (b) or (c)  and that they are not therefore empowered to issue penalty notices under this legislation.

I suspect that when DEFRA became aware of this blatant drafting error they tried to recover the situation  by stating in 2.1 of the associated  Explanatory Memorandum

This instrument confers a power on district councils in England (outside London) to require the keeper of a vehicle to pay a fixed (civil) penalty if there is reason to believe that a littering offence has been committed from the vehicle. 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 at  gov.uk district councils are defined as follows:

District councils – In 2-tier areas, each county council area is subdivided into districts, for which there is an independent district council. There are 201 district councils. District councils are responsible for local services such as rubbish collection, housing and planning applications.

In any case Section 3 does not just refer to district councils. It classifies three types of council as “litter authorities” for the purpose of the regulations. Other types of council could have been added to this list but they were not.

Clearly “district council” in the context of Section 3 is not being used as an umbrella term for a wide range of councils types.

The regulations could and should have defined litter authorities as all councils with the statutory duty to keep their highway clear of litter but they do not.

DEFRA cannot rewrite the regulations in an “explanatory” memorandum.

Highways England motorways and trunk roads

Under Section 4 of the regulations a litter authority  can only issue a penalty notice if the offence has been committed on land for which it is the EPA S89(1) (duty to keep land clear of litter etc) duty body. As Highways England is the EPA S89(1) duty body for the motorways and certain trunk roads on their network, and as they are not a litter authority, then presumably no one can issue penalty notices for offences committed on these roads.

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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