MEMORANDUM BY THE MERSEY BASIN CAMPAIGN
(DSW 100)
LITTER AND DEBRIS IN THE WATER ENVIRONMENT
AND THE CURRENT LEGISLATION
THE ISSUE
Increasingly today our rivers and canals are
becoming seen as a beneficial asset to our society for a number
of reasons that include:
— Stimulus to economic growth.
Rivers and streams also have a crucial land
drainage function, which if impeded by rubbish, can cause flooding
with consequential loss of life and other social and economic
costs.
With the increased interest worldwide in sustainable
living and development, and to meet our country's obligations
on these issues, we need to start to look at ways to improve and
maintain the health of our waterways for future generations.
For many years the Mersey Basin Campaign has
seen how litter and debris is an endemic problem for our water
environment with long stretches of river and canal where rubbish
is not only occasionally found but is persistently present.
Although the North West is taking steps to address
this issue, the problem is clearly not exclusive to the region,
with similar problems being identified on the Thames, the rivers
of South Wales and the canal system in the Midlands.
Currently there is legislation in place prohibiting
the dumping of litter and debris and requiring its removal. In
practice however this legislation appears to be weak and unworkable
with regard to the water environment.
We, as an organisation, feel that the introduction
of stronger more focused legislation and its effective application
would enable a significant reduction in the problem of rubbish
and litter within our waterways.
As a first step in addressing this issue a note
is attached illustrating a few of the problems we in the Mersey
Basin Campaign are observing with the legislation, along with
a number of suggestions on actions that could be taken to improve
the current situation.
Difficulties with current legislation
as it relates to litter and debris in the water environment
SUMMARY OF IDENTIFIED DIFFICULTIES AND SUGGESTED
SOLUTIONS
| Difficulties |
Solutions |
| Only some of the legislation is written for the water environment, creating ambiguity about the appropriateness of the rest.
| Consider producing a code of practice dedicated to the water environment to supplement the DETR.
|
| There is such a plethora of acts, sections and statutory instruments etc, each with its complexities and exclusions that it is easy to misunderstand and avoid compliance—on the part of both potential polluters and enforcing bodies.
| Consider combining some of the law for the purposes of the water environment.
|
The DETR "Code of Practice on Litter and Refuse" has only two short paragraphs about waters:
"6.3 Although there is a duty on some organisations such as port authorities and the British Waterways Board, the difficulty is that this relates only to land to which the public have access".
"6.4 The Government considers that it would be both impractical and unreasonable to impose a blanket duty on all owners of land covered by water to ensure that the area is kept clear of litter. However although there is no specific duty, there is an incentive in many places to keep the water clear of litter and refuse for amenity purposes. Furthermore, landowners may wish to make clearance arrangements with others such as amenity groups."
These do not appear to give sufficient emphasis to the need to keep rivers and canals free of rubbish.
The first merely acknowledges how little the legislation does.
The second gives no confidence that owners, users or enforcement agencies will take preventative or remedial action.
| Consider producing a code of practice dedicated to the water environment to supplement the DETR "Code of Practice on Litter and Refuse" and make the law in relation to the water environment stronger.
|
| Much of the water-related legislation protects function alone and not amenity.
| Consider extending legislation beyond flood defence or ensure amenity-based legislation clearly covers waters.
|
| No single statutory body is responsible for removal of rubbish or enforcing against offenders.
| Ensure that one identifiable body has responsibility for enforcing against offenders.
Consider extending or transferring powers between the local authorities and the Environment Agency.
This would need to be supported with increased resources to allow this Agency to fulfil this role.
|
| Too little of the legislation confers a duty on the local authority or Environment Agency to take action to enforce against offenders or remove the rubbish.
| Consider transferring discretionary powers to duties.
|
Bodies with the powers to enforce or remove rubbish are unable or unwilling to give a high enough priority to this issue, even under mandatory powers.
Do they have sufficient resources—financial or trained staff?
| Consult with the Local Government Association and the Environment Agency to explore the reasons and find ways of raising the priority rating of this issue.
This would appear to be one of the most fruitful avenues to pursue with work including:
prevention (eg installing and making emptying arrangements of litter bins)
adopting optional legislation (eg local authorities to designate Litter Control Areas)
enforcement (eg the Environment Agency to use the Water Resources Act 1991 s 87 to prosecute offenders on amenity grounds or duty bodies to give responsibility to one member of staff to seek out all the possible legal powers that would enable them to take action in any one case)
|
| Most enforcement powers rely on proving that the polluter actually carried out the offence for prosecution purposes—with lack of evidence acting as a major inhibitor.
| Consider ways of increasing the monitoring of frequently littered sites.
Could duty bodies be more proactive in encouraging the public to be more observant and collect essential information on illegal dumping?
|
| Much of the water-related law does not apply to "ordinary" rivers. Amenity problems caused on "non-main" rivers are every bit as undesirable as on "main" rivers, irrespective of the flood prevention interest.
| Extend legislation on main rivers to all rivers for amenity purposes.
Allocate resources required to the relevant agency to carry out the extra maintenance duties.
|
| Specific Problems | Suggested Solutions
|
| Environmental Protection Act 1990 (EPA) section 89. A definition of "relevant land" to which this section applies has not been clarified. Advisory Group on Litter took the view that: "the duty does not extend to dealing with litter on water, although litter lodged on a river bed which is exposed could be caught in the Duty" (Report on Review of Provisions of EPA 1990)
| Clarify definition of relevant land and include all land covered by water and the surface of the water.
|
EPA s99. This is rarely adopted and adequately implemented by local authorities.
A better take up would prevent shopping trolleys remaining a major problem.
| Make the current discretionary power into a mandatory duty to adopt this section and press authorities to take action on it to remove trolleys and recharge supermarket owners.
|
| EPA s89. This is currently interpreted to mean that canal owners only need keep towpaths clean if they are paved and over 1km long—in practice a small amount of the waterway margin.
| Extend the duty to all towpaths and to margins without towpaths.
|
Transport Act 1968. This seems to require canal owners to remove rubbish from water for navigation purposes only—meaning that unsightly small material not causing a blockage is not cleared.
It is not clear if others require these bodies to clear rubbish for amenity reasons.
In the case of "remainder" canals, owners need only remove large rubbish that impedes water flow.
| Extend appropriate legislation to ensure canal owners have the duty to keep all waters and margins clean.
Such legislation should be made explicit, for example, in the Code of Practice on Litter and Refuse.
|
Water Resources Act 1991 section 85-7. It is not clear what a "polluting" material covers.
This potentially allows solid waste to be overlooked.
| A definition could be incorporated into the suggested code of practice for waters that this section does cover.
|
| Land Drainage Byelaws. These prohibit anything to be left close to a river so that it could get into the river. However it is restricted to "main" rivers and it is not clear if the term "be carried into" is applied to human as well as natural means.
| Extend this duty to all waters and define the term to include "being carried by any means".
|
TAKING THE
ISSUE FORWARD
It is important that the Government takes seriously the pollution
of the water environment by litter and debris. At a recent meeting
with Michael Meacher he agreed that this issue had to come out
of the "too difficult box".
A suggestion would be to reconvene the Advisory Group on
Litter with appropriate membership to look specifically at the
water environment. With the current situation, outlined above,
it is evident that sufficient attention was not given to this
application when preparing the draft for the DETR's Code of Practice.
A thorough investigation is needed into why existing legislation
is not being followed effectively by the responsible bodies and
how this can be remedied.
This consultation should include all the key players on this
issue including DETR, Environment Agency, local authorities, Tidy
Britain Group and user groups.
This should lead to a strengthening of powers and ability
for them to be used by:
(i) clarifying, extending and tightening the legislation
itself;
(ii) making discretionary powers into mandatory
duties;
(iii) raising the priority given by the various
responsible bodies to clearing away litter and debris and prosecuting
offenders.
This paper focuses on perceived weaknesses within current
legislation on the issue of litter and debris as it pertains to
the water environment, and looks as some possible solutions that
can be addressed by government. The Mersey Basin Campaign would
also like to explore with the ministry any other avenues that
may be available to drive through actions to address the complex
and persistent issue of rubbish within our water environment.
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