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Can local authorities require bins to be brought in off highway by section 46 EPA?
Answer:
YES. It is interesting that recent indications from the government suggest the government is considering legislation to prevent the issue of penalties for failing to bring bins back in - this does of course suggest that the government accepts that such powers do currently exist. The situation remains the same notwithstanding the waste review, as the government acknowledges that removal of criminal penalty powers will require amendment of primary legislation.
Membership fees start from as little as £900 per annum, per organisation.
Used well, our membership service has no real cost and can save money for our clients – how?
Answer:
YES. It is interesting that recent indications from the government suggest the government is considering legislation to prevent the issue of penalties for failing to bring bins back in - this does of course suggest that the government accepts that such powers do currently exist. The situation remains the same notwithstanding the waste review, as the government acknowledges that removal of criminal penalty powers will require amendment of primary legislation.
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Continues...... Regardless of the fact that several authorities have already obtained convictions in relation to non-compliance with such requirements, the answer is contained in section 46 itself: Section 46 provides that no requirement may be made to place a receptacle on highway unless consent has been obtained from the highway authority and there are sufficient insurance arrangements in place. No highway authority may give open ended consent to widespread obstruction of highway. Placement for collections necessarily involves recovery of any such receptacle as an essential part of that same process. To place a receptacle on highway and to leave it there is not a placement for collection, but an occupation of highway as a waste storage facility. Of course, in London, this is strengthened further by an amendment to section 46 that specifically states that requirements may be made to prevent detriment to amenity generally. I would add that the leaving of waste receptacles on highway is not only unsightly and obstructive but in many areas is known to be a significant contributor to other anti-social behaviour, such as arson and burglaries. |
The proposed clause 23 amendment to the Localism Bill appears now to have been discarded.
The proposed clause 23 amendment to the Localism Bill appears now to have been discarded by the government, despite pressure from others in both Houses and interested groups, such as Local Government Regulation and Keep Britain Tidy.
However, the proposed amendment has at least provoked some movement to amend the litter offence to enable better regulation of litter from vehicles -
On 5th September the House of Lords by Order moved a revised third list of amendments to the Localism Bill. The following amendment is proposed in this Order: 195ZA
Insert the following new Clause—
“Litter deposited from motor vehicles
(1) Local authorities may make byelaws about litter deposited from motor vehicles.
(2) Such byelaws may include provisions about—
(a) the application of section 87 of the Environmental Protection Act 1990 (offence of leaving litter) to litter deposited from motor vehicles;
(b) the procedures for identifying the person in charge of a motor vehicle; and
(c) the information which the registered keeper of a vehicle may be required to provide the local authority.” Mallard had a particular interest in clause 23. This clause sought to enlarge the existing litter offence to tackle litter from vehicles and was drafted by our very own David Armstrong for the Local Government Association.
Clause 33 contains the long awaited extension to local authorities’ street litter control powers, enabling local authorities to persuade occupiers of offices to ensure that open land in the vicinity is kept clear of litter, particularly the type of litter discarded by smokers on breaks. Clause 33 may also be used to close loopholes in cases of multi-occupancy.
The content of the proposed clause 33 appears below.
The originally proposed amendment details:
CLAUSE 23 – Amendment of section 87 Environmental Protection Act 1990.
Section 87. Offence of leaving litter.
(1) A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.
(2) This section applies to any place in the area of a principal litter authority which is open to the air, subject to subsection (3) below.
(3) This section does not apply to a place which is “open to the air” for the purposes of this Part by virtue of section 86(13) above if the public does not have access to it, with or without payment.
(4) It is immaterial for the purposes of this section whether the litter is deposited on land or in water.
(4A) No offence is committed under subsection (1) above where the depositing of the litter is—
(a) authorised by law; or
(b) done by or with the consent of the owner, occupier or other person having control of the place where it is deposited.
(4C) In subsection (4B) above, “lake or pond”, “watercourse” and “public sewer” have the same meanings as in section 104 of the Water Resources Act 1991.
(5) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(6) A local authority, with a view to promoting the abatement of litter, may take such steps as the authority think appropriate for making the effect of subsection (5) above known to the public in their area.
(7) In any proceedings in Scotland for an offence under this section it shall be lawful to convict the accused on the evidence of one witness.
(8) Where litter is deposited from a motor vehicle, the person in charge of the vehicle shall, for the purposes of subsection (1) above, be treated as having deposited the litter whether or not he gave any instructions for this to be done.
(9) Subsection (8) above shall not apply where the vehicle is—
(a) a public service vehicle, within the meaning of the Public Passenger Vehicles Act 1981;
(b) a hackney carriage licensed under the Town Police Clauses Act 1847 or the Metropolitan Public Carriage Act 1869;
(c) a private hire vehicle licensed under the Private Hire Vehicles (London) Act 1998; or
(d) a vehicle licensed under section 48 of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57)(licensing of private hire vehicles).
(10) The registered keeper of a vehicle other than a vehicle operated under a contract for hire shall, for the purposes of subsection (8) above, be deemed to be the person in charge of the vehicle unless within twenty one days of receipt of the summons for an offence prosecuted by virtue of subsection (8) above the registered keeper provides in writing to the prosecutor notification of such identifying details as are available to him of any other person he claims to have been the person in charge of the vehicle at the relevant time.
(11) Where litter is deposited from a vehicle operated under a contract for hire the hirer of the vehicle shall, for the purposes of subsection (8) above, be deemed to be the person in charge of the vehicle unless within twenty one days of receipt of the summons for an offence prosecuted by virtue of subsection (8) above the hirer of the vehicle provides in writing to the prosecutor notification of such identifying details as are available to him of any other person he claims to have been the person in charge of the vehicle at the relevant time.
(12) For the purposes of subsection (8) above a constable or an authorised officer of a principal litter authority may by notice in writing served on him, require any person to furnish such information specified in the notice as may reasonably be required to ascertain the person in charge of the vehicle at the relevant time, in such form and within such period, being not less than fourteen days following service of the notice , as is so specified.
(13) It is an offence for a person, to make a statement which he knows to be false or misleading in a material particular, or recklessly to make a statement which is false or misleading in a material particular, where the statement is made pursuant to subsection (10) subsection (11) or subsection (12) above.
(14) It is an offence for a person without reasonable excuse to fail to comply with any requirement imposed under subsection (12) above.
CLAUSE 33 – proposed amendment of section 93 Environmental Protection Act 1990, street litter control
In Part IV of the Environmental Protection Act 1990 (litter etc) in section 94 (1)(a) (c.43) (street litter: supplementary provisions) for "commercial or retail premises" there were substituted "premises other than dwellings".
In Part IV of the Environmental Protection Act 1990 (litter etc) in section 93 (2) (c.43) (Street litter control notices) after "the authority may serve a street litter control notice on the occupier or, if the premises are unoccupied, " insert " or where there is multiple occupancy".
The proposed clause 23 amendment to the Localism Bill appears now to have been discarded by the government, despite pressure from others in both Houses and interested groups, such as Local Government Regulation and Keep Britain Tidy.
However, the proposed amendment has at least provoked some movement to amend the litter offence to enable better regulation of litter from vehicles -
On 5th September the House of Lords by Order moved a revised third list of amendments to the Localism Bill. The following amendment is proposed in this Order: 195ZA
Insert the following new Clause—
“Litter deposited from motor vehicles
(1) Local authorities may make byelaws about litter deposited from motor vehicles.
(2) Such byelaws may include provisions about—
(a) the application of section 87 of the Environmental Protection Act 1990 (offence of leaving litter) to litter deposited from motor vehicles;
(b) the procedures for identifying the person in charge of a motor vehicle; and
(c) the information which the registered keeper of a vehicle may be required to provide the local authority.” Mallard had a particular interest in clause 23. This clause sought to enlarge the existing litter offence to tackle litter from vehicles and was drafted by our very own David Armstrong for the Local Government Association.
Clause 33 contains the long awaited extension to local authorities’ street litter control powers, enabling local authorities to persuade occupiers of offices to ensure that open land in the vicinity is kept clear of litter, particularly the type of litter discarded by smokers on breaks. Clause 33 may also be used to close loopholes in cases of multi-occupancy.
The content of the proposed clause 33 appears below.
The originally proposed amendment details:
CLAUSE 23 – Amendment of section 87 Environmental Protection Act 1990.
Section 87. Offence of leaving litter.
(1) A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.
(2) This section applies to any place in the area of a principal litter authority which is open to the air, subject to subsection (3) below.
(3) This section does not apply to a place which is “open to the air” for the purposes of this Part by virtue of section 86(13) above if the public does not have access to it, with or without payment.
(4) It is immaterial for the purposes of this section whether the litter is deposited on land or in water.
(4A) No offence is committed under subsection (1) above where the depositing of the litter is—
(a) authorised by law; or
(b) done by or with the consent of the owner, occupier or other person having control of the place where it is deposited.
(4C) In subsection (4B) above, “lake or pond”, “watercourse” and “public sewer” have the same meanings as in section 104 of the Water Resources Act 1991.
(5) A person who is guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.
(6) A local authority, with a view to promoting the abatement of litter, may take such steps as the authority think appropriate for making the effect of subsection (5) above known to the public in their area.
(7) In any proceedings in Scotland for an offence under this section it shall be lawful to convict the accused on the evidence of one witness.
(8) Where litter is deposited from a motor vehicle, the person in charge of the vehicle shall, for the purposes of subsection (1) above, be treated as having deposited the litter whether or not he gave any instructions for this to be done.
(9) Subsection (8) above shall not apply where the vehicle is—
(a) a public service vehicle, within the meaning of the Public Passenger Vehicles Act 1981;
(b) a hackney carriage licensed under the Town Police Clauses Act 1847 or the Metropolitan Public Carriage Act 1869;
(c) a private hire vehicle licensed under the Private Hire Vehicles (London) Act 1998; or
(d) a vehicle licensed under section 48 of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57)(licensing of private hire vehicles).
(10) The registered keeper of a vehicle other than a vehicle operated under a contract for hire shall, for the purposes of subsection (8) above, be deemed to be the person in charge of the vehicle unless within twenty one days of receipt of the summons for an offence prosecuted by virtue of subsection (8) above the registered keeper provides in writing to the prosecutor notification of such identifying details as are available to him of any other person he claims to have been the person in charge of the vehicle at the relevant time.
(11) Where litter is deposited from a vehicle operated under a contract for hire the hirer of the vehicle shall, for the purposes of subsection (8) above, be deemed to be the person in charge of the vehicle unless within twenty one days of receipt of the summons for an offence prosecuted by virtue of subsection (8) above the hirer of the vehicle provides in writing to the prosecutor notification of such identifying details as are available to him of any other person he claims to have been the person in charge of the vehicle at the relevant time.
(12) For the purposes of subsection (8) above a constable or an authorised officer of a principal litter authority may by notice in writing served on him, require any person to furnish such information specified in the notice as may reasonably be required to ascertain the person in charge of the vehicle at the relevant time, in such form and within such period, being not less than fourteen days following service of the notice , as is so specified.
(13) It is an offence for a person, to make a statement which he knows to be false or misleading in a material particular, or recklessly to make a statement which is false or misleading in a material particular, where the statement is made pursuant to subsection (10) subsection (11) or subsection (12) above.
(14) It is an offence for a person without reasonable excuse to fail to comply with any requirement imposed under subsection (12) above.
CLAUSE 33 – proposed amendment of section 93 Environmental Protection Act 1990, street litter control
In Part IV of the Environmental Protection Act 1990 (litter etc) in section 94 (1)(a) (c.43) (street litter: supplementary provisions) for "commercial or retail premises" there were substituted "premises other than dwellings".
In Part IV of the Environmental Protection Act 1990 (litter etc) in section 93 (2) (c.43) (Street litter control notices) after "the authority may serve a street litter control notice on the occupier or, if the premises are unoccupied, " insert " or where there is multiple occupancy".