Clause 102 Statutory nuisance: lighting

260.     Clause 102 amends section 79 of the Environmental Protection Act 1990 so as to provide that the statutory nuisances listed in that section include "artificial light emitted from premises so as to be prejudicial to health or a nuisance". This has the effect of subjecting nuisance lighting to the statutory nuisance regime in Part 3 of the Environmental Protection Act 1990.

261.     Subsections (3) to (6) make provision about exempting artificial lighting emitted from certain premises from constituting a statutory nuisance: such premises include those occupied for defence purposes, various transport-related premises, and prisons.

262.     Section 79(8) of the Environmental Protection Act 1990 refers to existing arrangements under which a port health authority has responsibility for dealing with some statutory nuisances. Subsection (7) has the effect of excluding nuisance lighting from these arrangements.

Clause 103 Sections 101 and 102: supplementary

263.     Clause 103 amends section 80(8) and section 82(10) of the Environmental Protection Act 1990 so that the defence of having used best practicable means to prevent, or counteract the effects of, a statutory nuisance will not be available for either of the new statutory nuisances unless the nuisance arises on industrial, trade or business premises.

Pollution

Clause 104 Contaminated Land: appeals against remediation notices

264.     Clause 104 amends the arrangements for appeals against remediation notices which are served under s.78E of Part 2A of the Environmental Protection Act 1990 (contaminated land).

265.     The clause amends s.78L to provide that the person on whom a remediation notice is served by a local authority in England may appeal to the Secretary of State, and in Wales to the National Assembly for Wales. This replaces the present arrangement in s.78L under which magistrates' courts consider appeals where the notice has been served by the local authority, and the Secretary of State considers appeals where the notice has been served by the Environment Agency. The clause will therefore provide a single appellate authority for remediation notices under Part 2A, whether served by the local authority or the Environment Agency.

     266.     Appeals to the Secretary of State and the National Assembly for Wales are heard by Inspectors appointed for the purpose. Cases may be decided by the Inspector, or "recovered" for decision by the Secretary of State or the National Assembly for Wales on the basis of the Inspector's report

Clause 105 Offences relating to pollution etc: penalties on conviction

267.     Clause 105 raises the penalties available to the courts for offenders found guilty of offences under paragraph 25 of Schedule 1 to the Pollution Prevention and Control Act 1999. These offences relate to, for example, contravention of the requirement for a permit to operate an installation or mobile plant, failure to comply with or to contravene a condition of a permit and failure to comply with the requirements of an enforcement notice or a suspension notice.

268.     This clause increases the maximum fines available on summary conviction from £20,000 to £50,000.

269.     Subsection (2) raises the maximum sentence available on summary conviction from six to twelve months, in line with a change made by s.154(1) of the Criminal Justice Act 2003 (c.44).

PART 10: GENERAL

Clause 106 Minor and consequential amendments

270.     Clause 106 and Schedule 4 provide for a number of minor and consequential amendments.

Clause 107 Repeals

271.     Clause 107 and Schedule 5 provide for a number of repeals.

Clause 108 Commencement

272.     Clause 108 sets out the provisions regarding the commencement of the Bill.

SCHEDULES

Schedule 1 Application of the Noise Act 1996 to Licensed Premises etc

273.     This Schedule is discussed in the Commentary section for clause 82.

Schedule 2 The Commission for Architecture and the Built Environment

274.     Schedule 2 makes further provision about the constitution of the Commission as well as other matters relating to its proceedings, accounts etc.

275.     Schedule 2 also makes provision for the Commission to be added to provisions in other Acts, for example, the Commission's records will be deemed public records by addition to Public Records Act 1958. It would also be usual to include a provision in this Bill to add the Commission to the Parliamentary Commissioner Act 1967. However, it is currently intended that this will be dealt with shortly in secondary legislation.

Schedule 3 Transfer of staff, property etc. from the old Commission

276.     Schedule 3 provides for the transfer of staff, property, rights and liabilities from the old Commission to the new Commission. This ensures continuity between the new and old Commissions, for example, in relation to legal proceedings. In particular, Schedule 3 provides for the application of the Transfer of Undertakings (Protection of Employment) Regulations ("TUPE") to the transfer of rights and liabilities relating to employees.

Schedule 4 Minor and consequential amendments

277.     Schedule 4 lists the minor and consequential amendments in this Bill.

Schedule 5 Repeals

278.     Schedule 5 lists all the repeals in this Bill.

FINANCIAL EFFECTS

279.     The Bill will entail additional public expenditure by Defra, the Department for Constitutional Affairs (DCA), the National Assembly for Wales, the Environment Agency and local authorities.

280.     Additional costs that will fall to Defra and the National Assembly for Wales will be met within existing budgets. The main additional activity in Defra will be the implementation of the Bill which will include providing detailed guidance on the Bill's provisions. This will be largely undertaken by the Environmental Quality and Waste Directorate within Defra, with external expert help. Additional costs that will fall to DCA through the expected increased burden on the court system (including legal aid implications) will be the subject of a transfer between Defra and DCA when the relevant parts of the Bill are implemented. This is currently estimated to be £2.9 million. The exact amount will be reassessed once the Bill comes into force.

281.     Additional costs that will fall to the Environment Agency and local authorities will be minor as the majority of the Bill's measures provide additional powers, rather than duties. Authorities will only use them where there is a net benefit. It is expected that money spent by local authorities and other agencies on prevention, detection and better enforcement will in time result in cost savings as less will need to be spent on clear-up.

282.     The following three measures in the Bill introduce or extend duties to local authorities and so, where applicable, will lead to some additional costs. These costs are not expected to be significant and will be met through their existing budgets rather than through new funding or increases in council tax.

283.     The Bill extends the statutory nuisance regime to cover nuisance from artificial lighting and from insects. Under the statutory nuisance regime local authorities inspect their areas, investigate complaints and take action against statutory nuisances. Extending the regime to cover insects and artificial lighting will increase local authorities' functions under Part 3 of the Environmental Protection Act 1990. Local authorities were asked to provide information about the financial effect of this extension but no estimates were provided. The resultant increase in the complaints they will need to investigate following introduction of this measure will increase local authorities' costs, however efficiencies should be possible given the existing mechanisms already in place for dealing with other statutory nuisance complaints. Local authorities may be able to seek extra resources from central government should they decide to include statutory nuisance baselines and performance indicators in their proposals for Local Public Service Agreements.

284.     The Bill requires local authorities to consider whether they should be taking action to enforce the provision on the sale of aerosol spray paints contained in section 54 of the Anti-social Behaviour Act 2003, and to carry out a programme of enforcement where appropriate. The Home Office estimates that the cost to those authorities that do carry out programmes of enforcement would be between £3,000 and £10,000 per annum.

285.     The Bill transfers full responsibility to local authorities for receiving stray dogs. Although local authorities are currently responsible for collecting and detaining stray dogs, dogs can be taken to the police station outside office hours if the local authority dog warden is not available. The amount of the transfer of departmental resources commensurate with this transfer of duty is currently subject to ongoing discussion and agreement between the Home Office and the Office of the Deputy Prime Minister.

286.     Local authorities may be able to recover some of their costs through the retention of receipts from fixed penalty notices (as provided for in clauses 96 and 97 of the Bill).

287.     Some of the measures transfer costs from local authorities to other parties. These are discussed in more detail in the full Regulatory Impact Assessment of the Bill, which has been published alongside the Bill and is available from the Library of the House.

EFFECTS ON PUBLIC SERVICE MANPOWER

288.     The Bill will not result in any significant increases in public service manpower.

SUMMARY OF THE REGULATORY IMPACT ASSESSMENT

289.     A full Regulatory Impact Assessment of the measures in the Bill has been published alongside the Bill and is available from the Library of the House.

290.     In summary, the RIA shows that the cost implications of the measures in this Bill are justified, and overall there is a significant net benefit to their introduction.

291.     The following provisions in the Bill will lead to additional costs to businesses: litter clearing notices; street litter control notices; free literature distribution controls; nuisance vehicle measures dealing with vehicle repair and sale businesses that operate from streets and highways; the introduction of fixed penalty notices for waste left out on the street; the introduction of a new requirement for site waste management plans; and the extension of local authorities' powers to charge in respect of abandoned shopping and luggage trolleys.

292.     Some of these costs will be incurred by owners or occupiers in reducing or eliminating nuisance on their property. In other cases, the measures transfer costs from local authorities to parties that have not caused nuisance directly, but are in a better position to prevent and control the nuisance occurring in the first place.

293.     It is not possible to assess the impact of fly-posting removal notices on business until the results from the current Home Office consultation on graffiti removal notices have been evaluated. The consultation period closes on 31 December 2004.

EUROPEAN CONVENTION ON HUMAN RIGHTS

294.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of the Act). The Secretary of State for the Environment, Food and Rural Affairs, the Rt Hon Margaret Beckett MP, has made the following statement: "In my view the provisions of the Clean Neighbourhoods and Environment Bill are compatible with Convention rights."

295.     The Bill raises issues under Article 1 of Protocol 1 (protection of property), Article 6 (right to a fair trial), Article 8 (right to respect for privacy and family life), Article 9 (freedom of religion) and Article 10 (freedom of expression) of the Convention.

Interference with property

296.     The controls imposed by the Bill are capable for the purposes of Article 1 of Protocol 1 of constituting an interference with the peaceful enjoyment of possessions, connected with:

• the seizure and forfeiture of vehicles and their contents in relation to waste (clause 44),

• access and rights of way in relation to gating orders (clause 2),

• litter clearing notices (clause 20), requirements to clear fly-tipped waste from land (clauses 21 and 22), the requirement to nominate a key holder in relation to audible intruder alarms (clause 71), and rights of entry in connection with these requirements (clause 77); and

• controlling the distribution of printed matter (including associated economic benefits) to prevent the defacement of land by litter, with a power of seizure (Schedule 3A).

297.     In the Government's view this interference is justified under the second paragraph of the Article on the basis that it strikes a fair balance between the rights of the individual and the general interest of the community in the protection of the environment. It is considered that the controls do not amount to a deprivation of property but rather to a control of use and so do not give rise to an obligation to provide compensation to those affected.

298.     Regarding the forfeiture of vehicles, the Bill requires the court to take into account all the circumstances, including the value of the vehicle, the financial effects on the offender and the extent to which it is used in an unlawful business, and thus the problems arising from Article 1 of Protocol 1 identified in INTERNATIONAL TRANSPORT ROTH GmbH & OTHERS and THE HOME OFFICE EWCA Civ 158 are avoided.

299.     Regarding gating orders, an order for gating cannot be made where the right of way is the sole or principal access to dwellings, which need to be accessible at any time, or in the cases of business or recreational premises, at times when they are normally used. Given these restrictions and the provision for the making of representations, and the threshold for the right of way to be persistently affected by crime or anti-social behaviour, it is considered that the interference with access is proportionate and strikes a fair balance between the interests of residents, users and the public interest.

300.     The Government considers that the removal of requirements to serve notices before removing illegally parked vehicles from roads, although an interference with property, strikes a fair balance with the general interest of the community. The owner can secure the return of the vehicle. If however the vehicle is in such a condition that it ought to be destroyed and thus of no effective use as property, it may be destroyed at any time. A vehicle without a licence or registration plates, and whose owner is thus not identifiable easily or at all, may also be disposed of (including by sale) at any time after removal (whether abandoned or not), but the owner could, if the vehicle had sufficient value, claim the proceeds of sale less costs; thus the Government considers these provisions achieve a fair balance.

301.     The Bill contains provisions requiring land to be cleared of litter or fly-tipped waste, which is a control on the use of property. Since the clearing need not be executed by the occupier or owner personally, but can be executed by a contractor, it is considered that Article 4 (prohibition of slavery and forced labour) is not engaged.

Fixed penalty notices

302.     The Bill contains proposed fixed penalty notices for several new and existing offences. Fixed penalty notices are capable of engaging Article 6 of the Convention, on the right to a fair and public hearing by an independent and impartial tribunal, as well as Article 1 of Protocol 1, if disproportionate. However, the amounts are considered proportionate. Furthermore, fixed penalty notices are, if paid, an alternative to prosecution, but the accused is not required to pay the penalty if he prefers to be prosecuted for the offence; in those circumstances the authority would have to decide whether to commence proceedings. So the fixed penalty provisions do not deny the possibility of a court hearing, where the court would have full discretion as to the penalty. Therefore, the concerns expressed in ROTH have been addressed. Thus the Government believes that the new provisions do not infringe Article 6 or Article 1 Protocol 1 and so are Convention compliant.

Reverse burdens of proof

     303.     The Bill contains a number of new reverse burdens of proof (which means that, to take advantage of a defence provided, the accused is required to demonstrate his innocence once the prosecution has proved certain facts, rather than the prosecution being required to prove the accused's guilt on all issues). A reverse burden can be legal, where the burden is on the accused to prove that the defence applies to him on a balance of probabilities, or evidential, where the accused must bring sufficient evidence for the defence to be an issue, and then the prosecution must disprove the defence.

304.     The reverse burdens created by the Bill are legal except in clause 23 in relation to a person taking reasonable steps to prevent another person he has caused to distribute printed matter from doing so in a designated area, to reflect the special nature of the Article 10 right to freedom of expression. Reverse burdens engage Article 6(2) of the Convention (the presumption of innocence). The lawfulness of reverse burdens has been confirmed by the House of Lords in SHELDRAKE (2004) and R v JOHNSTONE (2003) where the prosecution has to prove the ingredients of the offence and the overall effect is that the accused has a fair trial, and the reverse burden is reasonable, proportionate and in the public interest. The Court of Appeal gave guidance on reverse burdens in AG'S REFERENCE (no 1 of 2004) [2004 EWCA Crim 1025]. The European Court of Human Rights has recognised that reverse burdens are lawful in SALABIAKU V FRANCE (1988) 13 EHRR 37 and PHILLIPS V UK if the overall presumption of innocence is maintained. The Government believes that the reverse burdens contained in the Bill are within those criteria and seek to promote the general interest of environmental protection. The Government therefore concludes that the new provisions are compatible with Convention rights.

The right to privacy

305.     Article 8 is engaged by virtue of the powers to require names and addresses of those suspected of offences in clauses 7, 61 and 76. The Government's view is that this is necessary for the administration of justice. The power is therefore reasonable and necessary in a democratic society.

306.     Article 8 is also engaged by the rights of entry to premises to clear litter. The power to enter premises only applies where the land is open to the air, and thus does not authorise entry of a dwelling. Premises may be entered to search and seize vehicles, but not parts of the premises it is not necessary to enter to reach the vehicle, although part of the premises may be used as a dwelling. The power to enter premises (including dwellings) to silence intruder alarms is exercisable by force only under warrant. These powers are confined to what is necessary for environmental protection which involves the protection of health, public safety and the prevention of crime and disorder, and are prescribed by law and are necessary in a democratic society.

Freedom of expression and freedom of religion

307.     Article 10 concerns freedom of expression, and Article 9 concerns freedom of religion and belief, and controls introduced by the Bill include new powers to restrict the distribution of printed matter, which engage these Articles. The Government has included an exemption from any restriction where the printed matter is for political purposes or for the purposes of a religion or belief or by or on behalf of a charity, and a restriction will only apply to designated land, which is being defaced by the discarding of free printed matter distributed there. The restriction thus applies where "freedom of expression" is involved. Those wishing to distribute printed matter, which is not for political, religious or charitable purposes on designated land, may do so with the consent of a principal litter authority. The decision to consent is based upon whether the distribution will cause defacement by litter, and there is no consideration of the content of the printed matter or its merit. The Government's view is that the new restriction seeks to strike a balance between the needs of distributors of free printed matter and the wish of the local community in the interests of environmental protection. For these reasons the Government's view is that the new provisions of the Bill do not breach Convention rights.

COMMENCEMENT

308.     Clause 103 makes detailed provision about commencement. Most provisions are to be brought into force by the Secretary of State in relation to England or the Assembly in relation to Wales. Some provisions which relate to England only, or to matters which are not devolved, are to be brought into force by order by the Secretary of State alone. Others come into force two months after Royal Assent. Provisions not mentioned in clause 103 come into force on Royal Assent (the provisions in question are all technical in nature).