Recent Posts

  • Create an EPA S89 (Duty to keep land clear of litter) scrutiny body directly responsible to Parliament

  • EPA S91 (Summary proceedings by persons aggrieved by litter) is not fit for purpose

  • Consider decriminalizing litter so that juveniles can be given on-the-spot fines

  • Increase fines for fly-tipping

  • Make the Highways Agency responsible for cleaning all of the roads on their network

  • Reform the Litter Code of Practice – Abandon the last resort response times

Submission to the
Communities and Local Government Committee
Inquiry into litter and fly-tipping
Peter Silverman of Clean Highways
Part 1

14th October 2014

What problems do litter and fly-tipping create for local communities-is the situation improving or deteriorating?

The presence of litter and fly-tipped waste not only detracts from the aesthetic appearance of an area it also sends out a message that antisocial behaviour is tolerated.

How effective are the actions of those responsible for managing waste in the local environment? What more should local councils, the Environment Agency, and Government funded bodies such as WRAP do?

Does the current statute, regulation and guidance set an effective framework to minimise litter and fly-tipping. What, if any, further changes are required?

No, they do not.

EPA S89 Duty to keep land and highways clear of litter etc

S89 of the Environmental Protection Act requires councils to ensure, so far as is practicable, that their land is kept free of litter and refuse.

So why do we see so much litter and refuse in evidence on the roadsides and in our public areas? Here are my thoughts.

Lack of accountability

There is no scrutiny body that holds councils, and other duty bodies, to account for compliance with EPA S89. It is a law any without policing.

KBT who derive their income from DEFRA and councils have told me that they are not in the business of criticising government. DEFRA itself only employs one full time employee to deal with street scene matters (litter, graffiti and dog fouling).

The only legal remedy the citizen has if his or her council fail to keep its land clear of litter is to complain to the Magistrates Court under EPA S91 (Summary proceedings by persons aggrieved by litter).

The process can take six months and involves two court appearances. The Council will invariably employ a Barrister and, if the citizen is unsuccessful, he can find himself having to pay costs in excess of £10,000.

John Hemming, the MP for Yardley has just suffered that very experience in trying to get Birmingham City Council to remove accumulations of fly –tipped garden waste from the streets of his constituency.

If the land has not been cleaned by the time of the final hearing the court can issue a Litter Abatement Order instructing the council to clear it. They cannot however order the council to keep it clean in the future.

A Council can simply clean the location the day before the final hearing to avoid an order against them.

As 5 days’ notice has to be given before complaining to the court, S91 cannot be used to bring a council to book over failing to adequately cleanse, say, a busy shopping parade. As long as they clean it every 4 days they would avoid any action under S91.

EPA S91is clearly not fit for purpose and needs to be reformed.

A scrutiny body needs to be set up to monitor compliance with EPA S89

What an EPA S89 scrutiny body could do

They could scrutinise councils (and other duty bodies) to ensure that they were taking all “practicable” steps to ensure their land was kept clear of litter and refuse. This could involve checking:

1. That, where cleansing is contracted out, the work to be done is specified in such a way that the contractor’s performance can be monitored and penalties applied when necessary, and that the procedures laid down are actually implemented.

2. That councils make good use the legislation available to them to deter littering and fly-tipping.

3. That domestic refuse collection is carried out in such a way that collateral littering is minimised. In particular they could check that councils are not acting in breach of EPA S33 by permitting residents to leave bags of refuse (deposit waste) outside the curtilage of their own properties. See EPA S33 (1) and (2).

This was the root cause of the problem in Birmingham referred to above. The council introduced a free green waste collection service. Residents were asked to put the waste in transparent plastic bags and place them on the kerbside for collection. When a new system with charges was introduced many residents continued to “fly-tip” their green waste in the manner to which they had become accustomed.

In the London Borough of Hillingdon, where I live, residents are tacitly permitted to leave black bags containing food waste outside the curtilage of their properties for early morning collection. The bags are frequently bitten into by vermin and the contents spread around the highway.

4. That councils are paying proper attention to the cleansing of non-residential main roads. These roads are often neglected as there are no voters living along them to complain about their condition.

The A1 in Gateshead, for example, is only cleaned once a year. The A41 through Aylesbury is only cleaned once every 3 months. The A61 and A617 in Derbyshire is only cleaned once a year.

Please action this link to see a video the A41 and A1 in the London Borough of Barnet.

Some of these roads are part of the national strategic network managed in England by the Highways Agency. Please refer to the section below headed All Purpose Trunk Roads (APTRs).

The scrutiny body should I believe be constituted like the Audit Office responsible directly to Parliament.

A separate body should be charged with the task of using a reformed EPA S91 to prosecute councils and other duty bodies who persistently fail to comply with S89.

Fines for Littering and Fly-tipping

One of the positive developments in combating litter in recent years has been the use by councils of contractors to issue on-the-spot Fixed Penalty Notices. These schemes can be self-funding. In my opinion councils should not be denigrated if they can achieve a surplus.

One point that concerns me is that councils are reluctant to issue FPNs to juveniles because of the extra requirement to comply with the Children’s’ Act 2004. Also, in the event of non-payment Magistrates are rightly reluctant to give the young person a criminal record for dropping a minor item of litter. This has rendered the process ineffectual in the case of one of the main groups of offenders.

For this reason I believe consideration should be given to making the offence of dropping litter a civil one to be dealt with in the same way as a parking offence. The important thing is not the civil or criminal nature of the offence but the likelihood of a perpetrator being caught or deterred. Simplifying the process may have a positive benefit in this regard.

Councils may not be taking a sufficiently hard line on fly-tipping. In a recent edition of BBC1’s “Rip Off Britain” we saw a council CCTV video showing two men fly-tipping several bags of refuse. They were fined just £200. I assume this was the maximum that could have been levied using a Fixed Penalty Notice. I believe the perpetrators should have been taken to court and given a fine more commensurate with the crime they had committed.

All Purpose Trunk Roads (APTRs)

ATPRs are the non-motorway trunks roads which form part of the Highways Agency network.

Although the Agency are responsible for their maintenance, the responsibility for cleaning in most cases lies with the local authority. The Agency’s contractor cuts the grass and the council’s contractor picks the litter.

Before carrying out the latter task the council will often have to get permission from the Agency to close a lane. The Agency will normally insist the work is carried out late at night to minimise traffic disruption.

Councils are ill-equipped to handle this work which often necessitates hiring crash cushion vehicles and signage. Their staff / contractors are often not geared to work at night. The Highways Agency contractors on the other hand work 24 /7 and are equipment with the necessary vehicles and signage.

In a report prepared for the Highways Agency in 2009 the consultants Atkins recommended that this work be taken over by the Agency. I agree with their findings.

What roles do and should the private citizen and campaign and action groups have in tackling litter?

I hope this submission is of assistance to the Committee.

 

 

Part 2 The Litter Code of Practice
16th October 2014

This is Part 2 of my submission. It provides some brief background information about the Clean Highways and criticises the quality of guidance provided by DEFRA’s Litter Code of Practice.

Clean Highways

Clean Highways was set up in February 2010 to find out why the legislation on litter was not working and to advise Government accordingly. I have been working with Andrew Gwynne MP on motorway cleansing and more recently with John Hemming MP on Litter Abatement Orders.

Our web site at www.cleanhighways.co.uk has over 1,700 visitors per month and acts as a focal point for citizens who share my concerns.

DEFRA’s Litter Code of Practice

S89 (7) of the Environmental Protection Act 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.

I have a number of concerns about DEFRAs 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 the 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 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.

I hope that this further submission is of help to the committee

 

Peter Silverman MA MSc
petersilvermanXXcleanhighways.co.uk
www.cleanhighways.co.uk
01895 625770

pdf version of Part 1
pdf version of Part2

Follow up e-mail to Committee Chairman

 

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