Clause 19 Litter offence: fixed penalty notices

73.     Clause 19 amends section 88 of the 1990 Act, under which the authorised officer of a litter authority may give a person who he has reason to believe has committed an offence under section 87 a notice offering that person the opportunity to discharge any liability to conviction for that offence by payment of a fixed penalty.

74.     Subsection (2) amends section 88 to enable a principal litter authority to specify the amount of fixed penalty to be applied in its area; where the authority sets no such amount the fixed penalty shall be £75. Powers set out in section 97A (introduced by clause 24) of the 1990 Act enable regulations to be made by the Secretary of State or the National Assembly for Wales to set a minimum and maximum range within which the fixed penalty amount can be set. The litter 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.

75.     Subsection (3) inserts new section 88 (8A)-(8C) that provides that where an authorised officer of a litter authority proposes to give a person a fixed penalty notice, he may require that person to give him his name and address, and it is an offence for that person to fail to do so or to give false or inaccurate information.

76.     Subsection (4) classifies all parish and community councils as litter authorities. This has the effect of enabling parish and community councils to authorise officers to serve fixed penalty notices for the litter offence under section 88 of the 1990 Act. Under subsection (6) the Secretary of State or the National Assembly for Wales may make regulations prescribing conditions that must be met by an individual before he can be authorised by a parish and community council to issue fixed penalty notices. This could, for example, relate to certain training standards or competencies.

77.     In subsection (5) the description of an "authorised officer" is extended under a revised section 88(10) to allow litter authorities to authorise individuals other than their own employees to issue fixed penalty notices on their behalf.

Local authority notices

Clause 20 Litter clearing notices

78.     Principal litter authorities can apply the duty in section 89 of the Environmental Protection Act 1990 for land to be kept clear of litter and refuse to other public places (such as shopping centres) by designating litter control areas under section 90 of the 1990 Act. Any occupier of relevant land within that area is then required to keep their land free from litter and refuse. However, litter control areas have been very infrequently used by local authorities which consider the process for designation to be overly-complicated.

79.     Clause 20 repeals the power to designate litter control areas (and Schedule 5 repeals provisions of the 1990 Act which are consequential on that power). As an alternative, the clause empowers principal litter authorities to serve "litter clearing notices" on particular occupiers where they are of the view that defacement caused by the litter or refuse is detrimental to the amenity of the area.

80.     A litter clearing notice may be served on an occupier of any land in the open air except for land specified in section 92A(11). If the land is unoccupied, the notice may be served on the owner. Notices may require the land to be cleared of litter and refuse within a certain time, and may specify steps to be taken to prevent future defacement. Section 92A(8) also gives the appropriate person (as described in section 98(1A) introduced by clause 26) an order-making power to specify the form and content of litter clearing notices.

81.     The new section 92B gives a person on whom a litter clearing notice is served the right of appeal to a magistrates' court and sets out the grounds on which such an appeal may be made.

82.     The new section 92C makes it an offence to fail without reasonable excuse to comply with a litter clearing notice. Where a person fails to meet the requirements of a notice, a principal litter authority may itself enter the land to remove the litter and refuse. An authority may then impose a reasonable charge for this on the person who failed to comply with the notice.

Clause 21 Street litter control notices

83.     Under sections 93 and 94 of the 1990 Act, certain principal litter authorities can prevent accumulations of litter and refuse in and around any street or open land adjacent to any street by issuing a street litter control notice. This imposes requirements on occupiers of premises to deal with litter and refuse.

84.     Clause 21 amends sections 93 and 94 of the 1990 Act. Subsection (1) extends the application of street litter control notices to cover also vehicles, stalls and other moveable structures used for street vending, so that mobile vendors can also be required to take steps to minimise and clear up litter and refuse on any street or open land adjacent to it that originates from their commercial or retail activities.

85.     At present, a person only commits an offence in relation to a street litter control notice if, on an application by the authority, he fails to comply with an order of the magistrates' court requiring compliance with the notice. This requires the authority to first seek a court order for compliance where a street litter control notice is not complied with, making it more difficult and costly for the authority to enforce.

86.     Subsections (2) and (3) amend this to make it an immediate offence not to comply with the requirements of a street litter control notice, thus dispensing with the requirement on the authority first to seek an order from the magistrates' court ordering compliance.

Clause 22 Failure to comply with notice: fixed penalty notices

87.     Clause 22 inserts section 94A into the 1990 Act to enable the authorised officer of the authority to issue a notice to a person who he has reason to believe has not complied with a litter clearing notice or a street litter control notice, offering that person an opportunity to discharge any liability to conviction for an offence by payment of a fixed penalty.

88.     Section 94A(4) enables a principal litter authority to specify the amount of fixed penalty applicable in its area for the offences under section 92C and 94; the fixed penalty (for either offence) is set at £100 where no amount is set by a local authority. Section 94A(5) permits the principal litter authority to make provision for treating the fixed penalty as paid if a lesser sum is received by it within such (shorter) period as it may specify.

89.     The use of receipts from these fixed penalty notices is dealt with under clause 96.

Free distribution of printed matter

Clause 23 Controls on free distribution of printed matter

90.     Clause 23 inserts section 94B and Schedule 3A into the 1990 Act. This gives principal litter authorities the power to control the distribution of free literature to prevent such material from becoming litter in the local environment.

91.     Local authorities in London and the Council of the City of Newcastle upon Tyne already have the power to designate areas in which the distribution of free literature can only occur with the consent of the authority, under section 4 of the London Local Authorities Act 1994 and section 22 of the City of Newcastle upon Tyne Act 2000. Distribution in these areas without consent is an offence punishable by a fine and the local authority may also seize any such literature.

92.     Clause 23 repeals these powers and replaces them with similar legislation on a national basis, enabling all principal litter authorities to place restrictions on the distribution of free literature, through the designation of areas where this control will apply, and the establishment of a consent system.

93.     Paragraph 1 of Schedule 3A makes it an offence to distribute, commission or pay for the distribution of free literature without consent in a designated area. Material distributed for charitable, religious and political purposes is exempted from the offence. The offence does not extend to putting literature inside a building or letter-box.

94.     Paragraph 2 enables an authority to make an order to designate areas where this offence will apply. It sets out the procedure and requirements for achieving designation, including public notification, consideration of objections and timing of designation.

95.     Paragraph 3 enables authority to issue consents for the distribution of free literature in a designated area. This includes provisions allowing an authority to impose conditions on the consent to prevent defacement and ensure enforcement, to refuse consent in certain circumstances, and to revoke consent.

96.     Paragraph 4 enables an authority to charge a fee, within the confines of overall cost recovery for this Schedule. Paragraph 5 provides for appeal to a magistrates' court.

97.     Paragraph 6 enables an authorised officer of an authority to seize the material when an offence is committed. A person claiming ownership of the literature may apply to the magistrates' court requesting the return of this material.

98.     Paragraph 7 enables an authority, or any person authorised by an authority, to issue a fixed penalty notice for this offence, offering the offender an opportunity to discharge any liability to the offence.

99.     This paragraph enables an authority to specify the amount of fixed penalty and set provisions for variable payment rates, for example, for a lesser amount if the fine is paid within a specified time period. The fixed penalty is set at £75 where no amount is set by an authority.

100.     Paragraph 7 also provides an authorised officer of an authority with the power to require the name and address of a person to whom he intends giving a penalty notice, and makes it an offence to give inaccurate information.

General

Clause 24 Fixed penalty notices: common provision

101.     Clause 24 introduces a new section 97A into the 1990 Act, applying general provisions relating to the fixed penalty notices associated with the offence of dropping litter, litter clearing notices, street litter control notices and the distribution of printed matter. It enables the appropriate person (the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales) to make regulations which may set a range within which a locally determined fixed penalty amount must fall. Such regulations may also restrict the extent to which and the circumstances in which an authority may permit the payment of lesser amounts. The clause also enables the appropriate person, by order, to change the amount of the fixed penalty where no local rate is set by the relevant authority.

Clause 25 Exclusion of liability

102.     Clause 25 further amends the 1990 Act, by introducing new section 97B. That section protects a principal litter authority and any other person described in section 97B(2) against liability to an occupier or owner of land for damages or otherwise arising out of the exercise of certain powers relating to entry on to land (as specified in the section) in the context of either a litter clearing notice or a litter abatement notice. The circumstances in which this exclusion does not apply are also set out (bad faith, lack of due care etc).

Clause 26 "Appropriate person"

103.     Clause 26 introduces into section 98 of the 1990 Act a definition of the "appropriate person" for the purposes of Part 4 as the Secretary of State in relation to England, and the National Assembly for Wales in relation to Wales.

Clause 27 Meaning of "litter"

104.     Clause 27 clarifies the meaning of "litter" for the purposes of Part 4 of the 1990 Act, by specifically including cigarettes, cigars and like products and discarded chewing gum (including other products designed for chewing). Although these are already considered to fall within the definition of litter, the intention of this clause is to provide clarity for practitioners.

PART 4: GRAFFITI AND OTHER DEFACEMENT

Graffiti and fly-posting

Clause 28 Graffiti and fly-posting offences: fixed penalty notices

105.     Section 43 of the Anti-social Behaviour Act 2003 allows authorised officers to issue fixed penalty notices for the offences of graffiti and fly-posting, and currently sets the amount payable for a graffiti or fly-posting fixed penalty notice at £50.

106.     Clause 28 enables a local authority to vary the fixed penalty amount for a graffiti or fly-posting offence in its area. Where no amount is specified by a local authority, this clause also raises the base amount from £50 to £75. This amount may be changed by an order made by the appropriate person. In either case, the local authority may provide for a lesser amount to be paid if early payment is made within a specified period. In addition, the appropriate person (the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales) may make regulations relating to the fixed penalty amount, for example to specify a range within which the amount should fall.

107.     Parish and community councils (by way of their qualifying as "litter authorities" under section 88(9)(f) of the 1990 Act, and thus as "local authorities" under these provisions) are also given the power to issue fixed penalty notices for the graffiti and fly-posting offences in clause 19. The effect of subsections (2) and (3) of clause 28 (relating to the definition of "relevant local authority") is to require them to adopt the amount specified by the local authority.

Clause 29 Fixed penalty notices: powers to require name and address

108.     Clause 29 further amends the Anti-social Behaviour Act 2003 to give an authorised officer of a local authority the power to require the name and address of a person to whom he proposes to offer a fixed penalty notice, and makes it an offence for that person either to fail to give that information or to give false or inaccurate information.

Clause 30 Fixed penalty notices: authorised officers

109.     Clause 30 extends the definition of an "authorised officer" to allow local authorities to authorise individuals other than their own employees for the purpose of giving notices for graffiti and fly-posting offences.

     110.     Subsection (2) enables the appropriate person (the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales) to make regulations prescribing conditions that a person must satisfy before a parish or community council may authorise that person to issue notices on their behalf for graffiti and fly-posting offences.

Clause 31 Extension of graffiti removal regime to fly-posting

111.     Sections 48 to 52 of the Anti-social Behaviour Act 2003 enable local authorities to issue notices requiring the removal of graffiti within 28 days from certain surfaces to statutory undertakers (such as railways and port authorities) or a person responsible for street furniture. If the graffiti removal notice is not complied with, the local authority can remove the graffiti themselves and reclaim their costs.

112.     Clause 31 amends the powers to issue graffiti removal notices (in respect of the defacement of a relevant surface to a degree that is detrimental to the amenity of an area or that is offensive) under sections 48-52 of the Anti-social Behaviour Act 2003 by extending their application now also to cover fly-posting.

113.     Paragraph 17 of Schedule 4 makes consequential amendments to the Anti-social Behaviour Act 2003 so as to re-name these notices as "defacement removal notices".

Clause 32 Sale of aerosol paints to children

114.     Section 54 of the Anti-Social Behaviour Act 2003 makes it an offence to sell aerosol paints to persons aged under 16. Clause 32 introduces a new section 54A concerning the enforcement of section 54.

115.     The new section 54A(1) requires a local weights and measures authority to consider, at least once a year, the extent to which it is appropriate to have a programme of enforcement action in relation to section 54 and, to that extent, to carry out such a programme.

116.     New section 54A(2) sets out what measures a programme of enforcement action may contain. Guidance will set out what "other measures" in section 54A(2)(c) may include.

Advertisements

Clause 33 Unlawful display of advertisements: defences

117.     It is currently an offence under section 224 of the Town and Country Planning Act 1990 to display an advertisement in contravention of regulations under section 220 of that Act. The offence is capable of being committed by a person who owns land where the advertisement is displayed, or whose business or concerns are advertised.

118.     However, there is a defence for such a person, namely where he proves that the advertisement was displayed without his knowledge or consent. That presents a difficulty for local authorities, which effectively have to prove that the person both knew of and consented to the display of the advertisement, making it very hard to secure a conviction.

119.     The amendment made by the Bill now provides an amended statutory defence. It removes the requirement for a local authority to prove that a person consented to the display of an advertisement in contravention of regulations.

120.     The defence now is that the advertisement was either displayed without the knowledge of the person; or that he either took all reasonable steps to prevent the display, or to secure its removal after the advertisement had been displayed.

Clause 34 Removal of placards and posters

121.     Section 225 of the Town and Country Planning Act 1990 enables a local authority to serve a notice on a person who has illegally displayed placards and posters, and to remove or obliterate these posters or placards where that person has failed to do so himself within the time specified in that notice.

122.     Where a person has failed to comply with such a notice, clause 34 enables a local authority to recover the costs they incurred in removing or obliterating the illegally-displayed posters or placards.

123.     In the first instance, the costs of removal are recoverable from the person identified in the poster or placard as having displayed it or having caused it to be displayed. However, if he cannot be identified, subsection (4) permits the local authority to recover costs from an identifiable person whose goods, services or concerns are publicised in the poster or placard (i.e. the beneficiary of the advertisement). Costs can only be recovered if he has failed to comply with a notice requiring him to remove the placard or poster within a specified time.

124.     Subsection (5) enables any person suffering damage to land or chattels caused by a local authority who is exercising these powers to receive compensation for that damage - other than a person who displayed, or caused the display, of the offending poster or placard.

125.     Subsection (6) amends the 1990 Act to enable a local authority to enter both occupied or unoccupied land in order to remove unlawful posters or placards.

PART 5: WASTE

CHAPTER 1: TRANSPORT OF WASTE

Clause 35 Unregistered transportation: defence of acting under employer's instructions

126.     Under section 1 of the Control of Pollution (Amendment) Act 1989, it is an offence for anyone who is not a registered carrier of controlled waste to transport such waste within Great Britain in the course of any business of his or otherwise with a view to profit. Controlled waste is defined as household, industrial and commercial waste.

127.     Clause 35(1) amends section 1 of the Control of Pollution (Amendment) Act 1989 so as to remove the defence (at section 1(4)(c)) of acting under one's employer's instructions.

Clause 36 Registration requirements and conditions

128.     Section 2 of the Control of Pollution (Amendment) Act 1989 sets out provisions as to the registration of waste carriers. Clause 36 amends the provisions in section 2 relating to certificates of registration for carriers of controlled waste (in relation to which provision can be made in regulations under that section). In particular, it removes the requirement that a certificate of registration, and copies of such a certificate, must be provided free of charge.

129.     This clause also provides (by way of new section 2(4A) and (4B) of the 1989 Act) that regulations under this section may include provision for the registration of carriers of controlled waste to be subject to conditions relating to the vehicles they use, as well as for the possible revocation of a registration in the event of breach of such a condition. In support of this, the regulations may provide for inspections of such vehicles and charges for such inspections.

Clause 37 Enforcement powers

130.     Clause 37 substitutes section 5 of the Control of Pollution (Amendment) Act 1989 with new sections 5 and 5A. The principal effect is to enable a constable or an authorised officer of a regulation authority (i.e. the Environment Agency or a waste collection authority) to stop, search and seize a vehicle that he reasonably believes is being used in the commission of an offence under section 1 of that Act (transporting controlled waste without being registered).

131.     The new section 5 sets out the powers of an authorised officer or a constable in relation to such a vehicle and its contents. Only a constable in uniform may stop a vehicle on the road. A vehicle or its contents which are seized by a constable in the presence of an authorised officer of a regulation authority are seized on behalf of that authority; where the constable is acting alone then the vehicle or contents seized are seized on behalf of the waste collection authority in whose area the seizure takes place.

132.     New section 5(7) re-enacts the offence under the present section 5 of failing to comply with a requirement to produce authority for transporting controlled waste; it also creates new offences of failing to assist or otherwise obstructing an authorised officer or constable.

133.     Section 5(9) gives the authorised officer or constable a power to require any occupant of the vehicle to give his name and address, or that of the registered owner of the vehicle, or any other information he may reasonably request. By section 5(10) it is an offence to fail to give such information or to give information which is knowingly or recklessly false or misleading, punishable by a fine not exceeding level 5 on the standard scale (currently £5,000).

134.     New section 5A empowers the appropriate person (the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales) to make regulations specifying how a regulation authority must deal with vehicles or their contents seized under section 5, and to issue guidance to a regulation authority in relation to its performance of its functions under such regulations.

Clause 38 Failure to produce authority: fixed penalty notices

135.     Clause 38 inserts new sections 5B and 5C into the Control of Pollution (Amendment) Act 1989. Under section 5B, where it appears to an authorised officer of a regulation authority that a person has committed an offence under section 5(7)(a) (failure to produce authority for transporting controlled waste) he may issue that person with a notice, offering him an opportunity to discharge by payment of a fixed penalty any liability to conviction for the offence. By section 5B(9) the fixed penalty is set at £300, though a different amount may be substituted by an order made by the appropriate person under section 5B(10). By section 5B(11) a regulation authority may make provision for treating a fixed penalty as having been paid if a lesser amount is paid within a shorter specified period, and by section 5B(12) the extent and circumstances for doing so may be subject to restrictions in regulations made by the appropriate person.

136.     Section 5C allows a waste collection authority to retain the receipts arising from fixed penalty notices issued pursuant to section 5B, and specifies the functions for which the receipts may be used. Section 5C(9) makes similar provision to that made by clause 8 (subsection(8)) as described in paragraph 44 above.

Clause 39 Interpretation

137.     Clause 39 inserts definitions of "appropriate person" and "authorised officer" in section 9 of the Control of Pollution (Amendment) Act 1989. The former is defined as the Secretary of State in relation to England, and the National Assembly for Wales in relation to Wales.

CHAPTER 2: DEPOSIT AND DISPOSAL OF WASTE

Offence of unlawful deposit of waste etc

Clause 40 Defence of acting under employer's instructions

138.     Clause 40 amends section 33 of the Environmental Protection Act 1990 (under which it is an offence to make an unauthorised or harmful deposit etc. of waste) so as to remove the defence (at section 33(7)(b)) of acting under one's employer's instructions.