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|Clean Neighbourhoods And Environment Bill|
These notes refer to the Clean Neighbourhoods and Environment Bill as introduced in the House of Commons on 7th December 2004 [Bill 11]
CLEAN NEIGHBOURHOODS AND ENVIRONMENT BILL
1. These explanatory notes relate to the Clean Neighbourhoods and Environment Bill as introduced in the House of Commons on 7th December 2004. They have been prepared by the Department for Environment, Food and Rural Affairs (Defra) in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
BACKGROUND AND SUMMARY
3. In 2002 a review of the legislative framework for providing and maintaining a clean and safe local environment was carried out by Defra to accompany the cross-Government report Living Places - Cleaner, Safer, Greener. The review found that the current extensive set of powers, duties and guidance for dealing with problems associated with local environmental quality was not working as effectively as it should be, and produced options for delivering changes. These options were contained in the consultation paper Living Places - Powers, Rights, Responsibilities launched at the Urban Summit on 31 October 2002. Some were introduced into legislation in Part 6 of the Anti-social Behaviour Act 2003. The majority of the options were developed further and included as proposals for legislative action within the Clean Neighbourhoods consultation launched on 25 July 2004.
4. Most of the measures in this Bill are based on these proposals, amended as appropriate to take account of comments received during the consultation process.
[Bill 11EN] 53/4
Part 1: Crime and Disorder
5. This Part amends the law relating to crime and disorder reduction partnerships and makes provision for the gating of minor highways that attract anti-social behaviour.
Part 2: Vehicles
6. This Part introduces two new offences relating to nuisance parking and amends the law relating to abandoned and illegally parked vehicles.
Part 3: Litter and Refuse
7. This Part extends the statutory offence of dropping litter and amends the powers and duties of local authorities in relation to litter.
Part 4: Graffiti and Other Defacement
8. This Part amends the law relating to graffiti, fly-posting and the illegal display of advertisements.
Part 5: Waste
9. This Part makes miscellaneous provision about waste. Chapter 1 makes provision about the registration of carriers of particular kinds of waste. Chapter 2 makes provision about the illegal deposit of waste ("fly-tipping") and about the powers and duties of local authorities to collect and dispose of waste. Chapter 3 makes provision to deal with waste generated at construction sites.
Part 6: Dogs
10. Chapter 1 allows local authorities and parish and community councils to create offences relating to the control of dogs. This power is intended as a more convenient alternative to existing powers to create byelaws. In particular, the new offences will not need to be approved by the Secretary of State. The new system replaces the Dogs (Fouling of Land) Act 1996.
11. Chapter 2 relieves the police of responsibility for stray dogs.
Part 7: Noise
12. This Part addresses various issues relating to noise nuisance. Local authorities are given new powers to deal with noise from intruder alarms. The powers for dealing with night time noise nuisance are extended from domestic premises to cover also licensed premises. This Part also allows local authorities to employ alternative means to resolve complaints about noise qualifying as a statutory nuisance prior to issuing an abatement notice.
Part 8: Architecture and the Built Environment
13. This Part establishes a statutory body that will take the place of an existing non-departmental public body, the Commission for Architecture and the Built Environment. The provisions create a statutory Commission (which will have the same name), set out its general functions, transfer the staff and resources of the old Commission to the statutory Commission and dissolve the old Commission.
Parts 9 and 10
14. These Parts contain miscellaneous and supplementary provisions.
15. The Bill extends only to England and Wales.
TERRITORIAL APPLICATION: WALES
16. Generally, all Parts of the Bill apply equally to Wales and England. The two significant exceptions are clause 45 (payments for waste recycling and disposal) and Part 7 (CABE) which are relevant to England only.
17. Where provisions of the Bill relating to Wales are commenced by order, it falls to the Assembly to commence them - see clause 108(2).
COMMENTARY ON CLAUSES
PART 1: CRIME AND DISORDER
Clause 1 Crime and disorder reduction strategies
18. Section 6 of the Crime and Disorder Act 1998, as amended by the Police Reform Act 2002, requires "responsible authorities" to formulate and implement "crime reduction strategies". For this purpose, "responsible authorities" are local authorities, chief police officers, police authorities, fire and rescue authorities and primary care trusts (see section 5 as amended).
19. In formulating their strategies, the authorities concerned do not necessarily consider low-level anti-social behaviour and environmental crime (such as littering, graffiti, fly-posting, nuisance vehicles and fly-tipping) in their strategies. Clause 1 amends section 6 so as to require such matters to be taken into account.
Clause 2 Gating orders
20. Clause 2 inserts a new part (Part 8A) in the Highways Act 1980. This clause provides local authorities with a means to erect, or allow the erection of, a physical barrier to restrict public access to a highway over which the public would normally have a right of passage.
21. In built-up areas there are many minor highways giving rear and side access to properties and providing shortcuts between blocks of properties. They range from narrow footpaths to highways capable of accommodating vehicular traffic. Some of these highways provide opportunities to access the rear of properties for illegal entry and concealment and cover for criminal acts and anti-social behaviour.
22. 'Gating', that is, blocking some or all of the access points to the highway using metal gates, may reduce these problems. This clause provides a means whereby a local authority may 'gate' a highway, where they would otherwise have a duty both to assert and protect the rights of the public to the use of the highway and to prevent its obstruction.
23. The new section 129A provides for a local authority to make a 'gating' order in respect of a highway that is facilitating high and persistent levels of crime and/or anti-social behaviour that adversely affects local residents or businesses. This section excludes certain types of public highway by definition, to ensure that only minor highways are subject to these provisions.
24. A gating order would restrict the public right of way over the highway and, where necessary, authorise the installation of gates or barriers to enforce the restrictions.
25. The new section 129B sets out the extent of the restrictions a gating order may impose on the public right of way over the highway. This includes restricting access for certain periods or times of the day or at all times. Access for occupiers of premises adjoining or adjacent to the highway cannot be restricted, nor can a gating order be made if it forms the only or principal means of access to dwellings. If it forms the only or principal access to premises used for business or recreational purposes, it cannot restrict access during the times of day when these premises are normally used.
26. Certain people may be specified in the order to be exempted from the restriction, such as emergency services and those with a legitimate reason for accessing any premises adjacent to the highway. In practice, this would involve the provision of keys to such people, or the opening of the gates during certain times/periods when such people would expect to use the highway.
27. This power will not permanently extinguish rights of way, making it possible to subsequently revoke the restrictions and reinstate the public's right to use the highway, if appropriate.
28. Section 129C sets out the procedures a local authority must follow to obtain a gating order. A local authority is required to notify occupiers of properties affected by the order, and others to be specified by regulation, and take their representations into account. They must also hold a public inquiry in any circumstances which might be provided for in regulations. Section 129C also provides for regulations setting out the detailed procedures for public consultation.
29. Section 129D enables a person to challenge the validity of a gating order in the High Court on certain specified grounds. On an application under this section the Court may suspend, quash or allow the gating order to stand.
30. Section 129E requires a gating order to be publicised and made available for public scrutiny.
31. Section 129F sets out the circumstances in which a gating order may be revoked or varied and the procedures for doing so. It also enables regulations relating to revocation or variation to be made.
PART 2: VEHICLES
Clause 3 Exposing vehicles for sale on a road
32. Some garages and other businesses which sell cars at times park them for long periods on the street. This can be a nuisance to local residents. Clause 3 makes it an offence for a person to park motor vehicles on a street, where the vehicles are parked merely in order to be sold. There must be two or more vehicles on the same street for the offence to be committed.
33. The provision is not aimed at individuals selling cars privately, so a person may not be convicted if he proves that he was not acting for the purposes of a business (see subsection (2)). Subsection (3) sets out the penalties.
34. A 'road' is as defined in section 142 of the Road Traffic Regulation Act 1984 (c.27) as any length of highway or of any other road to which the public has access. Whether a piece of land is a road or not is a matter of fact. The main feature of a road is that the general public has a right to use it as a means of getting from A to B. The definition includes all highways (all the land to which the public has a right to pass along for the purpose of legitimate travelling and includes both the carriageway and footpath) and also access roads through estates that are owned by organisations such as Housing Associations or by the residents who live there. A car park for example would not normally come within the definition of a road as its function is to enable people to leave their vehicles.
35. Under subsection (4) 'motor vehicle' has the same meaning as in the Refuse Disposal (Amenity) Act 1978 (c.3) which is "a mechanically propelled vehicle intended or adapted for use on roads, whether or not it is in a fit state for such use, and includes any trailer intended or adapted for use as an attachment to such a vehicle, any chassis or body, with or without wheels, appearing to have formed part of such a vehicle or trailer and anything attached to such a vehicle or trailer".
Clause 4 Repairing vehicles on a road
36. This clause addresses the nuisance caused by people repairing their vehicles on the street. This can take up valuable parking space for long periods, looks unsightly and can be directly damaging to the local environment (for example where oil is spilled or leaked). Clause 4 makes it an offence to carry out "restricted works" to vehicles on a road.
37. There are two exceptions. The first is where a person proves he was not repairing the vehicle in the course of a business (subsection (4)). But this is only available where the works did not give "reasonable cause for annoyance" to persons in the vicinity. So even a person carrying out repairs otherwise than for a business can be convicted if the works gave cause for annoyance.
38. The second exception is where the repairs arose from a breakdown or accident and were carried out promptly or were otherwise authorised (subsection (5)).
39. The definition of road and of vehicle is the same as in the previous clause and is explained at paragraph 34 above.
Clause 6 Power to issue fixed penalty notice
40. Subsection (1) enables any person authorised by a local authority to issue a fixed penalty notice for the offences of exposing vehicles for sale or repairing a vehicle on the road, offering the offender an opportunity to discharge any liability for the offence. Subsection (8) fixes the amount of the penalty at £100 which can be amended by order under subsection (9). Under subsection (10) the local authority to which a fixed penalty is payable may provide for treating it as having been paid if a lesser amount is paid before the end of such (shorter) period as it may specify.
Clause 7 Fixed penalty notices: power to require name and address
41. Subsection (1) provides an authorised officer of a local authority with the power to require the name and address of an offender if the officer proposes to give him a penalty notice. Subsection (2) makes it an offence to fail to provide the information asked for or to give inaccurate information.
Clause 8 Use of fixed penalty receipts
42. Subsections (2) and (3) enables local authorities to use the receipts from fixed penalty notices issued pursuant to clause 6 for the purposes of their functions under the Refuse Disposal (Amenity) Act 1978, under sections 99 to 102 of the Road Traffic Regulation Act 1984, functions relating to the enforcement of clauses 3 and 4, and for other functions as are specified in regulations.
43. Subsections (4) to (7) make further provisions relating to the spending of fixed penalty receipts.
44. Subsection (8) allows regulations governing the spending by English local authorities of fixed penalties received pursuant to clause 6 to be linked to categories of local authority (categorised in an order made pursuant to section 99(4) of the Local Government Act 2003). This is achieved by treating the regulation-making powers in clause 8 as though they were included in section 100(2) of the Local Government Act 2003. For example, a local authority categorised as 'excellent' might be allowed (by virtue of regulations under subsection (2)(d)) to use its receipts for any of its functions.
Clause 10 Offence of abandoning a vehicle: fixed penalty notices
45. This clause inserts after section 2 of the Refuse Disposal (Amenity) Act 1978 (which makes it an offence to abandon a motor vehicle) three new sections - 2A, 2B and 2C.
46. Section 2A gives an authorised officer of a local authority the power to issue a fixed penalty notice in respect of an offence of abandoning a vehicle, offering the offender the opportunity to discharge any liability for the offence.
47. The sum is set at £200 by subsection (8) which can be amended by order as set out in subsection (9). Under subsection (10) the local authority to which a fixed penalty is payable may provide for treating it as having been paid if a lesser amount is paid before the end of such (shorter) period as it may specify.
48. Section 2B enables an authorised officer of a local authority to require the name and address of the person to whom he proposes to issue a fixed penalty notice. A person commits an offence if he gives false or inaccurate details.
49. Section 2C enables local authorities to use the receipts from these penalties for the purposes of their functions under the Refuse Disposal (Amenity) Act 1978 Act, and sections 99 to 102 of the Road Traffic Regulation Act 1984, functions relating to the enforcement of clauses 3 and 4 and for other functions as are specified in regulations (subsections (2) and (3)). Subsections (4) to (7) make further provisions relating to the spending of fixed penalty receipts.
50. Subsections (8) to (10) of section 2C make similar provision as described above for clause 9 subsections (8) to (10).
Clause 11 Notice of removal of vehicles
51. This clause amends section 3 of the Refuse Disposal (Amenity) Act 1978.
52. Currently, under section 3(2) of the Refuse Disposal (Amenity) Act 1978, if a vehicle that appears to be abandoned is found on land that is occupied, a 15 day notice must be served on the occupier of that land before that vehicle can be removed. If the vehicle is on a private driveway, there is no practical problem. The occupier will be in a position to confirm whether or not it is abandoned and if it has been abandoned will probably have complained about its having been left in the first place. However, if that 'person' is in fact a housing association, serving notice often produces delay as the association is not in a position to either move the vehicle or disown responsibility for it as it is unlikely to belong to them. To speed matters up some form of notice is often left on the vehicle to alert the owner. The notice can attract instances of anti-social behaviour such as vandalism and arson.
53. Subsection (2) removes the requirement to serve a 15 day notice on the occupier of land where the vehicle is on a 'road'. The definition of 'road', as per section 142 of the Road Traffic Regulation Act 1984, could include roads that pass through housing estates managed by registered social landlords and other local authority housing estates. This will enable vehicles to be removed immediately from any road to which the public has access.
54. Section 3(5) of the Refuse Disposal (Amenity) Act 1978 currently requires a local authority to affix a notice to a vehicle 24 hours prior to removal where it is considered to be in such a condition that it ought to be destroyed. There is no definition of what this means but it could include vehicles that have parts missing or have been burnt out. The 24 hour notice can attract instances of anti-social behaviour such as vandalism and arson.
55. Subsection (3) revokes section 3(5) of the Refuse Disposal (Amenity) Act 1978. It enables local authorities to immediately remove any vehicle in such a condition if they think it has been abandoned.
Clause 12 Disposal of abandoned vehicles
56. Clause 12 relates to the steps a local authority must take before they can dispose of an abandoned vehicle.
57. Section 4 of the Refuse Disposal (Amenity) Act 1978 states that a vehicle may only be destroyed immediately after removal where it has been removed under section 4(5) (being that it is in such a condition that it ought to be destroyed) and does not display a current licence. Where a current licence is displayed, this must expire before destruction can take place. In other cases the local authority must take steps to ascertain who the owner is and, if found, to serve a notice telling him of the vehicle's removal. If no owner can be found, or the owner fails to respond to the notice within 7 days, the vehicle can then be disposed of unless it displays a current licence. Again, if a licence is displayed, the authority must wait for its expiry before destruction.
58. Waiting for the expiration of the licence leads to further storage costs being incurred by local authorities where the vehicle is only fit for destruction or the owner either cannot be traced or has chosen not to collect it.
59. Clause 12 amends section 4 of the Refuse Disposal (Amenity) Act 1978 by removing the requirement to wait for the expiration of a valid licence. This has the effect of allowing any vehicle that is only fit for destruction to be destroyed immediately. Where the owner either cannot be traced or fails to respond to a notice it can then also be destroyed.
60. This clause also amends section 4 by allowing immediate disposal where neither a registration mark (plate) is shown nor a current licence displayed. Without that information, it is considered unreasonable to expect the authority to trace the owner (either of these would provide a way to check the DVLA register or make enquiries in other countries). This clause allows these vehicles to be disposed of immediately.
Clause 13 Guidance
61. This clause obliges authorities to have regard to guidance given by the "appropriate person" when exercising their functions in relation to the removal and disposal of vehicles.
Clause 14 Abandoned vehicles: supplementary
62. This clause provides a definition of "appropriate person" for the purposes of the powers conferred by clauses 10 to 13. The effect is that the powers are conferred on the Secretary of State in relation to England, and the Assembly in relation to Wales.
63. Subsection (2) amends section 10(5) of the Refuse Disposal (Amenity) Act 1978 so that any orders or regulations made by the National Assembly for Wales under new section 2A and section 2C are to be made by statutory instrument by negative resolution.
Vehicles illegally parked etc
Clause 15 Notices of Removal; clause 16 Disposal; clause 17 Guidance
64. These clauses make similar changes to the Road Traffic Regulation Act 1984 ("the 1984 Act") to those to the Refuse Disposal (Amenity) Act 1978 described above.
65. Clause 15 amends section 99 of the 1984 Act. It inserts the words "other than a road" after the word "land" in subsection (3). This has the effect of removing the requirement to serve the occupier of land with a notice where that land is a road. It also removes the requirement to attach a notice on a vehicle that is considered in such a condition that it ought to be destroyed by omitting subsection (4). This mirrors the amendments made by clause 11 to the Refuse Disposal (Amenity) Act 1978 for the same reasons. The 1984 Act has similar provisions for dealing with abandoned vehicles as are contained in the Refuse Disposal (Amenity Act) 1978 but there is only a power for local authorities to act, not a duty as under section 3 of the 1978 Act.
66. Clause 16 amends section 101 of the 1984 Act. It makes various amendments to subsection (3) that mirror the amendments made by clause 12. It allows for the removal of vehicles that do not display either a valid licence or a registration mark (plate) and also removes the requirement to wait for the expiration of a valid licence before the vehicle can be disposed of.
67. Clause 17 insert into section 103 of the 1984 Act the requirement for local authorities exercising functions under sections 99 to 103 of the Act to have regard to any guidance issued by the Secretary of State or the National Assembly for Wales as the case may be.
PART 3: LITTER AND REFUSE
Offence of dropping litter
Clause 18 Extension of litter offence to all open places
68. Section 87 of the Environmental Protection Act 1990 (the 1990 Act) makes it an offence to drop litter in a place in the open air to which the public are entitled or permitted to have access without payment, including any covered place open to the air on at least one side and available for public use. It also includes relevant land owned by local authorities, statutory undertakers, designated educational institutions and Crown land.
69. Clause 18 extends the scope of that offence so that it is now an offence to drop litter anywhere in the open air in the area of a principal litter authority, regardless of ownership.
70. This includes land covered by water, so that the offence extends to dropping litter into bodies of water, such as rivers or lakes. The area of a local authority which is on the coast extends down to the low-water mark under section 72 of the Local Government Act 1972. Therefore it will be an offence to drop litter anywhere above the low water mark (and thus an offence to drop litter on beaches).
71. It does not extend the duty on principal litter authorities (and others) to keep their relevant land clear of litter and refuse as set out in section 89 of the 1990 Act.
72. The exceptions to the offence that are set out in section 87 of the 1990 Act are amended so that no offence is committed if the littering was authorised by law or done by or with the consent of the owner, occupier, or other authority or person having control of the area (section 4A). Consent may only be given in relation to a watercourse, lake or pond if the same person owns all the surrounding land (section 4B).
|© Parliamentary copyright 2004||Prepared: 8 December 2004|