|Clean Neighbourhoods And Environment Bill - continued
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Clause 41 Penalties on conviction
139. Clause 41(1) amends the penalties available for offences under section 33 of the 1990 Act. It increases the maximum available fine on summary conviction for the illegal disposal of waste from £20,000 to £50,000 and raises the maximum term of imprisonment on conviction on indictment for non-hazardous waste offences to five years (the same as is already applied for offences involving hazardous waste).
Clause 42 Investigation and enforcement costs
140. Clause 42 inserts a new section 33A into the 1990 Act. Section 33A applies where a person is convicted of an offence under section 33 and enables the court to make an order requiring the offender to pay the enforcing authorities' investigation and enforcement costs, and any costs associated with seizure of vehicles involved in the offence. In this section, the enforcement authorities are defined as the Environment Agency and waste collection authorities.
Clause 43 Clean-up costs
141. Clause 43 inserts a new section 33B into the 1990 Act. Section 33B applies where a person has been convicted of an offence under section 33(1) of the 1990 consisting of the deposit or disposal of controlled waste. It enables the court to make an order requiring the offender to pay to either the Environment Agency or a waste collection authority or the occupier of land or the owner of land, any costs incurred by them in removing waste that has been illegally deposited or disposed of in or on land, or in taking steps to eliminate or reduce the consequences of the deposit or both.
Clause 44 Forfeiture of vehicles
142. Clause 44 inserts a new section 33C into the 1990 Act. Section 33C applies where a person has been convicted of an offence involving contravention of section 33(1) of the 1990 Act consisting of the deposit or disposal of controlled waste, clause 44 enables the court to make an order to deprive the offender of his rights to a vehicle (and its contents) if the court is satisfied that the vehicle was used in or for the purpose of the commission of the offence.
143. The order by the court may give possession of the vehicle and its contents to the relevant enforcement authority. The new section 33C requires a court to take into account the value of the vehicle, the impact of forfeiture on the offender, the offender's need to use the vehicle lawfully, and, if it appears that the offender is engaged in a business that illegally disposes of waste, whether the order is likely to be dissuasive of further such activity.
Offences relating to documentation
Clause 45 Failure to furnish documentation: fixed penalty notices
144. Section 34 of the 1990 Act places a duty on any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, to secure a written description of the waste whenever it is transferred. Section 34(5) provides for regulations to be made to require such documents to be retained and furnished.
145. Clause 45 inserts a new section 34A into the 1990 Act. Section 34A empowers an enforcement authority to issue a fixed penalty notice to a person has failed to comply with a requirement to furnish documents under regulations made under section 34(5), offering him the opportunity to discharge any liability to conviction for an offence by payment of a fixed penalty.
146. The amount of the fixed penalty is set at £300, which may be substituted by a different amount by an order made by the appropriate person. By section 34A(11), the enforcement authority may make provision for treating the fixed penalty as being paid if a lesser amount is paid during such shorter period as it may specify. By section 34A(12) the appropriate person may make regulations restricting the extent to which and circumstances in which an authority may provide for such reduced early payments. The new section 73A (clause 52) below makes provision about the use of such receipts.
Offences: powers of seizure
Clause 46 Power to search and seize vehicles
147. Subsection (1) of clause 46 inserts new sections 34B and 34C into the 1990 Act. These sections confer powers to stop, search and seize a vehicle (and its contents) where it is reasonably believed that the vehicle has been, is being, or is about to be, used in the commission of an offence under section 33 or 34.
148. Section 34B allows an authorised officer of an enforcement authority or a constable to seize a vehicle and its contents but only a constable in uniform may stop a vehicle on the road. A vehicle or its contents seized by a constable in the presence of an authorised officer of an enforcement authority seized on behalf of that authority; where a vehicle or its contents are seized by a constable acting alone they are seized on behalf of the waste collection authority in whose area the seizure took place.
149. Section 34B(7) creates offences of failing to assist or otherwise intentionally obstructing an authorised officer or constable.
150. Section 34B(8) empowers an authorised officer or a constable to demand the name and address of any occupant of a vehicle he has stopped under this section, the name and address of the registered owner of the vehicle, or any other information he may reasonably request.
151. By section 34B(9) it is an offence to fail without reasonable excuse to give this information, or to give information which is knowingly or recklessly false or misleading. Any offence under section 34B is punishable on summary conviction by a fine not exceeding level 5 on the standard scale (currently £5,000).
152. New section 34C empowers the appropriate person (described in section 34C(6)) to make regulations specifying how an enforcement authority must deal with any seized property and to issue guidance to enforcement authorities in relation to their performance of their functions under such regulations.
153. Subsection (2) also extends to waste collection authorities the use of notices under s.71(2) of the Environmental Protection Act 1990 to include functions conferred by the new sections 34C and 34D.
Local authority waste collection and disposal
Clause 47 Abolition of requirement to contract out waste disposal functions
154. Waste disposal authorities (county councils and unitary authorities) are required by the Environmental Protection Act 1990 to make arrangements for the disposal of all municipal waste collected in their area. At present, section 32 of the 1990 Act requires them to divest themselves of their waste disposal undertakings and transfer them to either 'arm's length' companies or wholly to the private sector. Waste disposal authorities must carry out their waste disposal functions by means of letting contracts. The contract-letting procedures for waste disposal authorities required by the 1990 Act lack flexibility or the opportunity for waste disposal authorities to carry out their functions in other ways to secure continuous improvement in the way in which their functions are exercised, having regard to a combination of economy, efficiency and effectiveness.
155. Clause 47 repeals section 32 and Schedule 2 of the 1990 Act, thereby repealing the requirement for waste disposal authorities to have to form waste disposal companies; limiting companies thus formed to waste functions only; and requiring waste disposal authorities to dispose of controlled waste only through waste disposal contractors. This will allow waste disposal authorities the flexibility to ensure continuous improvement in the way that best fits their local circumstances.
Clause 48 Offences relating to waste receptacles: fixed penalty notices
156. Clause 48 inserts new sections 47ZA and 47ZB into the 1990 Act. Section 47ZA applies where an authorised officer of a waste collection authority has reason to believe that a person has committed an offence under section 46 or 47, and enables the officer to issue a notice to that person, offering him an opportunity to discharge any liability to conviction for the offence by payment of a fixed penalty.
157. Section 47ZB enables a waste collection authority to specify the amount of the fixed penalty in its area; the fixed penalty is set at £100 where no amount is set by an authority. In either case, a lesser amount may be permitted to be paid if early payment is made within a specified period.
158. Section 47ZB(4) gives powers to the appropriate person to make regulations governing the power of waste collection authorities to set local fixed penalty rates (e.g. by specifying a range within which the amount must fall or limiting the extent to which and circumstances in which a local authority may provide for reduced early payment).
Clause 49 Payments for waste recycling and disposal
159. Section 52 of the Environmental Protection Act 1990 imposes a duty on waste disposal authorities to make payments to waste collection authorities in their area. It provides for payments to be made by both tiers to third parties where waste is retained for recycling. The purpose of these payments is to offset any disincentive to recycle by making available to recyclers the savings in disposal and collection costs in respect of waste retained.
160. The present system was introduced before many of the other policy levers designed to encourage recycling were put in place, and needs reform to bring it in to line. Particular issues are: increasing payment costs to waste disposal authorities; the inflexible system of payments between waste collection and waste disposal authorities; re-use not incentivised in same way as recycling; payments to third parties being inconsistently administered; and, planned reform of the Joint Waste Disposal Authority levy will negate the need for payments to waste collection authorities in these areas.
161. Clause 49 amends section 52 of the 1990 Act to give the Secretary of State the power to make regulations in England to set the method of calculation of the payments. This will allow calculations to take into account increasing disposal costs due to diversion from landfill and the rising rate of landfill tax.
162. The new section 52(1A) gives the Secretary of State the power to disapply by order the duty on a Joint Waste Disposal Authority to make payments to a waste collection authority in respect of waste collected and retained for recycling. This will allow removal of the duty once the levy system in these areas is reformed to directly incentivise recycling by the waste collection authorities.
163. The new section 52(1B) exempts a waste disposal authority in England from the duty to make payments to a waste collection authority in respect of waste retained by the waste collection authority where the two authorities agree to alternative arrangements. Where no such mutually agreed arrangements are in place the duty to make payments will apply.
164. The new section 52(8A) gives the Secretary of State the power to produce guidance to assist English waste collection and disposal authorities in determining whether to make payments to third parties in respect of waste collected for the purpose of recycling.
165. The new section 52(12) clarifies that payments should be made in respect of all waste recycled including waste which is re-used with or without undergoing any treatment.
Clause 50 Power to require owner of land to remove waste
166. Clause 46(2) inserts section 59ZA into the 1990 Act. Where controlled waste is deposited in or on any land in contravention of section 33(1) of the 1990 Act, section 59 enables a notice to be served on the occupier of land requiring him to remove the waste or to take such specified steps with a view to eliminating or reducing its consequences. An occupier can appeal the notice if he neither deposited nor knowingly caused nor knowingly permitted the deposit of the waste. If an occupier fails to comply with the requirements in a notice, section 50 enables the Environment Agency or a waste collection authority to enter the land, remove the waste or take such specified steps and recover the costs of doing so from the occupier.
167. Section 59ZA enables a notice to be served on the owner of the land requiring him to clear waste from it in circumstances where there is no occupier of the land or the occupier cannot be found without the enforcing authority incurring unreasonable expense or the occupier has successfully appealed against a notice served in him.
Clause 51 "Appropriate person"
168. Clause 51 provides a definition of the "appropriate person" for the purposes of Part 2 of the Environmental Protection Act 1990 as meaning the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales.
Clause 52 Use of fixed penalty receipts
169. Clause 52 inserts section 73A into the 1990 Act, which allows a waste collection authority to retain the receipts arising from fixed penalty notices issued under section 34A or 47ZA, and specifies the functions under which the receipts may be used. It makes similar provision to that made by clause 8 (subsection (8)) as described in paragraph 44 above.
Clause 53 Supplementary enforcement powers
170. Clause 53 amends section 108 of the Environment Act 1995. The effect is to enable waste collection authorities to use the powers of investigation under that section in investigating incidents or offences in relation to discharging any of their functions under Part 2 of the 1990 Act.
CHAPTER 3: SITE WASTE
Clause 54 Site waste management plans
171. Clause 54 provides powers for regulations to be made to require developers and contractors of construction and demolition projects to prepare site waste management plans. These plans must set out the arrangements for managing and disposing of waste created in the course of the project.
172. The regulations may be restricted to projects over a specified value and may specify, for example, when plans must be prepared; the contents of such plans; enforcement arrangements; offences and their penalties; and the possibility for the discharge of liability for an offence by the payment of a fixed penalty.
PART 6: DOGS
CHAPTER 1: CONTROLS ON DOGS
173. Local authorities and parish and town councils can currently make byelaws to control dogs on certain areas of land. Section 236 of the Local Government Act 1972 sets out the byelaw-making process and requires that byelaws be "confirmed" by the relevant authority before they can have effect. Dog byelaws for England are confirmed by the Secretary of State for Defra and in Wales by the National Assembly. Those committing an offence under a dog byelaw risk a fine of up to £500 in court.
174. This system is considered costly and complicated to administer, both for central and local government. The Bill will replace the current system of dog byelaws with a new system of "dog control orders". This new system is modelled on the Dogs (Fouling of Land) Act 1996; this sets out an offence in respect of dog-fouling which can then be applied by local authorities by order in relation to designated land in their area.
175. Similarly, under the proposed new system local authorities and parish and community councils will be able to provide by order for offences to apply in designated land in their area. The offences will be standard offences which will be prescribed in regulations; the prescribed offences will include fouling by dogs (and therefore the Dogs (Fouling of Land) Act 1996 will be repealed). But the new system will also allow for other types of dog-related offence covering the keeping of dogs on leads in designated areas, the exclusion of dogs from such areas and the maximum number of dogs that one person may walk in such an area.
176. It is intended that the regulations will provide "model" offences which may then be applied by a local authority or parish or community council to specified areas of land accessible to the public; but (where appropriate) local authorities and councils will also be given some flexibility in relation to certain details of the offences. For example, the model offence in relation to the number of dogs that may be walked by one person may leave it to the local authority or parish or community council to specify whatever number of dogs they deem appropriate in relation to the land where the offence is to apply. It is also intended that local authorities and parish and community councils will be able to specify penalties applicable to offences, within constraints set by regulations.
Dog control orders
Clause 55 Powers to make dog control orders
177. Clause 55 enables "primary authorities" (which equate to local authorities) and "secondary authorities" (meaning principally parish and community councils) to make orders (to be known as "dog control orders") that apply offences aimed at the control of dogs to specified land in their area.
178. Subsection (3) sets out the four categories of offence that can be provided for. The effect of subsection (4) is that the scope of offences that can be provided for in dog control orders will be set out in regulations.
56 Dog control orders: supplementary
179. Clause 56 requires the appropriate person (as defined in clause 66) to make regulations which set out: the maximum penalties for dog offences; the content and format of dog control orders; and the process to be undertaken by primary and secondary authorities before and after making such orders (including requirements in respect of consultation on, and publication of, such orders).
Clause 57 Land to which Chapter 1 applies
180. Clause 57 provides that dog control orders may apply to all public land which is open to the air. Subsection (3) allows for exclusions, by order, to the types of land that can be subject to dog control orders.
Clause 58 Primary and secondary authorities
181. This clause defines primary and secondary authorities. Secondary authorities are parish and community councils (in England and Wales, respectively). Subsection (3) enables other bodies to be designated as secondary authorities. This is intended to deal with bodies, such as commons conservators, which have powers under private Acts to make byelaws to control dogs. It could also be used to designate statutory bodies with responsibilities for substantial areas of land.
Fixed Penalty Notices
Clause 59 Fixed penalty notices
182. Clause 59 allows authorised officers of primary and secondary authorities, or an authorised person working on their behalf, to issue a fixed penalty notice offering members of the public an opportunity to discharge any liability for offences under a dog control order.
183. Generally, an authorised officer of an authority can only issue a fixed penalty notice in respect of offences provided for by that authority. There is one exception: the effect of subsection (1)(b) is to enable an authorised officer of a secondary authority to issue a fixed penalty notice in its area in respect an offence under a dog control order created by a primary authority.
Clause 60 Amount of fixed penalties
184. Clause 60 enables a primary or secondary authority to specify the amount of fixed penalty in relation to their own dog control orders. Authorities will also be able to allow for the payment of a lesser amount if the fine is paid within a specified time period. Where no amount is specified at the local level, the fixed penalty is set at £75. Clause 60 also provides the appropriate person (as defined in clause 66) with the power to make regulations relating to the fixed penalty - in particular, to prescribe a range within which penalties fixed at the local level must fall; the appropriate person may also (by order) substitute the figure of £75 referred to above with a new amount.
Clause 61 Power to require name and addresses
185. Clause 61 provides an authorised officer of a primary or secondary authority with the power to require the name and address of a person if the officer proposes to give him 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 62 Community Support Officers etc
186. Chief Police officers can authorise 'community support officers' and 'accredit' other persons, under section 38 and section 41(2) of the Police Reform Act 2002 respectively, to issue fixed penalties on behalf of the police for certain offences specified in that Act. This clause enables community support officers and other persons accredited by Chief Police officers to be given the power to issue fixed penalty notices relating to dog control offences.
Clause 63 Overlapping powers
187. The new system of dog control orders enables both primary and secondary authorities to apply dog control offences to land in their area. However, the area of a secondary authority (in most cases a parish or community council) is comprised in the area of the higher tier primary authority. Therefore, under the new system it would be possible for both a primary and a secondary authority to apply a dog control offence to the same area of land.
188. The purpose of clause 63 is to avoid a situation arising where both a primary and secondary authority dog control order providing for the same type of offence exists in relation to the same land. The effect of this clause is that, if a primary authority makes a dog control order in relation to an area, a secondary authority will not be able to make a dog control order for the same type of offence in relation to that land. Furthermore, where a primary authority makes a dog control order in relation to land that has previously been the subject of a dog control order made by a secondary authority for the same type of offence, the secondary authority dog control order will cease to have effect.
189. For example, if a district council (i.e. a primary authority) makes an order about dog fouling on land covered by a parish council (a secondary authority), the parish council cannot subsequently make an order relating to dog-fouling on the same land, and any order relating to dog fouling on that land that it has made previously will cease to have effect. However, the parish council will still be able to make, for example, orders requiring dogs to be kept on leads on that land and any such orders it has previously made in relation to that land will continue to have effect (assuming, of course, the district council does not make a similar such order itself in relation to that land).
190. Similarly, subsection (2) gives dog control orders made by parish and community councils superiority over those of secondary authorities designated under clause 58(3).
Clause 64 Byelaws
191. Clause 64 removes the ability of primary and secondary authorities to make byelaws to control dogs in circumstances where it would also be possible for the authority to make a dog control order in respect of the same matter in relation to the land in question. Existing byelaws will remain in place unless that land is made the subject of a dog control order for the same type of offence. For example, if a local authority has a byelaw in place banning dogs from a local park, that byelaw will continue to have effect until such time as the authority makes a dog control order in relation to that park that likewise bans dogs.
Clause 65 Dogs (Fouling of Land) Act 1996
192. This clause repeals the Dogs (Fouling of Land) Act 1996: as mentioned above, dog fouling will now be controlled by way of a dog control order.
Clause 66 "Appropriate person"
193. Clause 66 provides that the "appropriate person" for Chapter 1 of this Part is the Secretary of State in relation to England and the National Assembly for Wales in relation to Wales.
Clause 67 Regulations and orders
194. Clause 67 requires that any order or regulations made under section 55(4) or 56(1) are to be made by statutory instrument by affirmative resolution. Other regulations or orders made under chapter 1 of this Part are to be made by statutory instrument by negative resolution.
CHAPTER 2: STRAY DOGS
Clause 68 Termination of police responsibility for stray dogs
195. This clause removes the responsibility of the police for dealing with stray dogs, by repealing section 3 of the Dogs Act 1906 (which enabled police officers to seize stray dogs found in public places), save in so far as that section applies to the continuing powers of the police to seize and detain such dogs under the Dogs (Protection of Livestock) Act 1953. The clause also removes police responsibility for stray dogs by amending section 150 of the Environmental Protection Act 1990 (under which stray dogs found by members of the public could be taken to the nearest police station). Under that section a responsibility for stray dogs remains with the local authority (as defined in section 149 of that Act).
|© Parliamentary copyright 2004
|Prepared: 8 December 2004