Anti-social Behaviour, Crime and Policing Bill

Written evidence from Living Streets (ASB 49)

1) About Living Streets

We are the national charity that stands up for pedestrians. With our supporters we work to create safe, attractive and enjoyable streets, where people want to walk. We work with professionals and politicians to make sure every community can enjoy vibrant streets and public spaces. We started life in 1929 as the Pedestrians Association and have been the national voice for pedestrians throughout our history. In the early years, our campaigning led to the introduction of the driving test, pedestrian crossings and 30mph speed limits. Since then our ambition has grown. Today we influence decision makers nationally and locally, run successful projects to encourage people to walk and provide specialist consultancy services to help reduce congestion and carbon emissions, improve public health, and make sure every community can enjoy vibrant streets and public spaces.

2) Key Messages:

· The Bill provides a more flexible route for local authorities to tackle anti-social behaviour which reduces local environmental quality such as littering, graffiti and dog fouling;

· In order for the Bill to achieve its aims there is a need for government to provide guidance and advice to the users of the new powers, such as local authorities, to ensure the proposals have maximum impact in delivering safe, attractive and enjoyable streets;

· We are concerned by that Public Spaces Protection Orders, as set out in the Anti-social Behaviour, Crime and Policing Bill , which are intended to replace Gating Orders, have the potential to further diminish access for pedestrians.

3) Living Streets welcomes the measures outlined in the Bill to tackle persistence place-related anti social behaviour such as littering, graffiti and dog fouling which can negatively affect the quality of life of local communities. We know that these issues are of importance to local people from a YouGov poll carried out for Living Streets in March 2012, which revealed that one third of British adults said they would walk more in their local area if streets were kept in better condition and 46% of 18-24 year olds and 51% of 25-34 year olds would walk more if the streets were safer and more attractive.

4) However, we believe the system of Community Protection Notices and Community Protection Orders (Public Spaces) will only succeed through the provision of advice and guidance to local authorities police and staff of registered providers of social housing.

5) It is seven years since the introduction of the Clean Neighbourhoods and Environment Act (CNEA) 2005 which introduced the system of Dog Control Orders, Litter Control Notices and Graffiti/Defacement Removal Notices (although this power was amended and not introduced by the CNEA) and it is only in the last few years these powers are being used to maximum effect. Defra supported the initial roll out of the powers with other Government Departments in 2005/6 and without such support for the new system of Community Protection Notices and Community Protection Orders (Public Spaces) there is a serious risk of the effectiveness of these powers being reduced unintentionally as local authorities take time to understand these new powers.

6) Table One below shows a broad correlation between the numbers of Fixed Penalty Notices (FPN) issued and increased awareness and knowledge of the CNEA provisions by local authorities from 2006 until the collection of the figures stopped in 2010. Figures were not collected centrally regarding the numbers of Dog Control Orders and Graffiti/Defacement Removal Notices issued, therefore, the number of FPNs, in table one, is used a proxy measure.

7) Table One – Number of Fixed Penalty Notices issued for CNEA related offences

Year

No. FPNs for Litter Clearing Notices Issued

No. of FPNs issued for graffiti

No. of FPNs issued for fly-posting

No. FPNs issued for dog fouling

No. FPNs issued for dog control

2006/7

120

43

1133

3434

109

2007/8

257

138

1577

1938

658

2008/9

381

119

1257

2071

1306

Source http://data.gov.uk/dataset/fixed-penalty-notice-overview (Accessed May 2011).

8) One example of where guidance and the sharing of best practice would be useful concerns the potential use of Community Protection Notices to tackle litter outside office blocks. Under the present system of Street Litter Control Notices Sections 93 and 94 of the Environmental Protection Act 1990 give local authorities the power to issue Street Litter Control Notices on premises that have a frontage on a street, and outside which litter or refuse is causing defacement of the land. However, the legislation was originally envisaged to tackle fast food litter and till receipts, as such, notices cannot normally be served on office buildings unless they sell food and drink whether or not for consumption on the premises (e.g. from a canteen or snack kiosk). The proposed Community Protection Notice would allow local authorities to require the occupiers/owners of offices and non-food retail outlets to play a greater role in dealing with this type of litter problem and would, therefore, provide a vital tool for local authorities to deal with localised littering problems, and would close a loophole in the legislation. It would also encourage members of the public to take increased responsibility for their litter.

9) Living Streets is concerned that the use of Community Protection Notice to tackle graffiti appears to misrepresent the purpose of existing powers. Graffiti/Defacement Removal Notices are served upon building/structure owners who are not normally recipients of ASB action. The owners and occupiers of such land are, therefore, victims of anti-social behavior and are not the usual groups for which ASB action is necessary. FPNs or prosecution may take place for those who carry out graffiti or fly-posting through section 43 of the Anti Social Behavior Act 2003 and the Criminal Damage Act 1971. However,

10) Living Streets believes it is important that the new system of Community Protection Notices and Community Protection Orders (Public Spaces) retains the powers currently contained within the present system of Litter Clearing Notices which allows local authorities to recover the costs they have incurred in cleaning the property or land concerned. This is in order to prevent local communities paying twice, firstly through the amenity cost of having their quality of life reduced by neighbouring land blighted by litter and secondly the financial cost of removal through their Council Tax.

11) Finally, the 2005  Clean Neighbourhoods and Environment Act (CNEA) attempted to bring together a variety of legislation to enable land managers to improve local environmental quality. To ensure the primary legislation achieved these aims a variety of secondary legislation and guidance was reviewed or introduced. One such area of guidance which was reviewed was the Code of Practice on Litter and Refuse (COPL&R) which was introduced to set minimum standards which communities could expect from their local authorities and statutory providers. Accordingly the Litter Control Notice sections of the CNEA are linked with the COPL&R.

12) Section 92A of the Environmental Protection Act as amended by Sec 20 of the CNEA allows a Litter Clearing Notice to specify the standards of compliance. The standards of compliance for Litter Clearing Notices are detailed in the COPL&R. Therefore, any repeal of the system of Litter Control Notices would need to be linked with a review of COPL&R to ensure minimum standards of compliance are achieved by landowners when removing litter and refuse from their land.

13) Living Streets supports the proposals outlined in the evidence submission of the Ramblers (submitted 28th June 2013) regarding Part 4, Chapter 2 of the Bill, namely the provisions which deal with Public Spaces Protection Orders (PSPOs). We fully understand the Government’s desire to consolidate and simplify the toolkit of measures used to tackle ant-social behaviour, and we acknowledge that in some circumstances this may necessitate restrictions on public access. However, our experience with Gating Orders indicates that measures of this kind can have serious unintended consequences in terms of preventing access to routes which people use to go about their everyday business. The provisions which provide local authorities with the power to make Gating Orders are set out in sections 129A–129G of the Highways Act 1980 (as amended by the Clean Neighbourhoods and Environment Act 2005). Gating Orders will be repealed by the present Bill and we believe that PSPOs offer even less protection for routes in everyday use than the existing measures. We believe that the Bill can be amended so that vital checks and balances are introduced to protect the public interest, whilst retaining an effective package of measures to limit and reduce anti-social behaviour. An outline of amendments proposed by the Ramblers may be seen below in Appendix one.

Appendix One – Proposed amendments by the Rambler supported by Living Streets

Clause 56 Duration of orders

14) The Bill provides that a PSPO can only have effect for a period of 3 years unless extended as provided for under clause 56. This is too long a period for the closure of any route of which everyday use is being made. A number of classes of highway are completely exempt from the application of PSPOs (we discuss this further below). Public rights of way are not so exempt. These are the class of way over which we have particular concerns, and we believe that the time limitation should be different in the case of public rights of way. An analogy can be drawn with Temporary Traffic Regulation Orders. Traffic authorities have the power to make temporary traffic regulation orders to restrict or prohibit the use of any road (defined in the Road Traffic Regulation Act 1984 as including public rights of way) because of works being carried out on or near the road, for public safety, and to enable cleaning and litter clearance. Such orders may last for 18 months in the first instance after which approval for an extension must be sought from the Secretary of State. However, for public rights of way, an order can last for only six months before approval for an extension must be sought. We argued successfully when the Road Traffic (Temporary Restrictions) Bill sought to bring in the 18 month limit for all highways that rights of way were a special case. The extra distance involved in taking an alternative route will make very little difference to a person travelling in a car, but can make a huge difference to a person on foot. In the circumstances of a footpath closed by a Gating Order or Public Spaces Protection Order (see the examples in Annex 3), it might mean that a journey is not taken at all, or that a car is used instead should one be available. (In the communities in which many of these orders are made cars are less likely to be an option: 25% of British households do not have access to a car.) Gating Orders can be made for an indefinite period (with a Home Office recommendation that they be reviewed after 12 months), so the present Bill provides the opportunity for the rights of way to be recognised as a special case with PSPOs over them being applicable for a far shorter period in the first instance. We would recommend that period be for six months in the first instance, as for Temporary Traffic Regulation orders.

Clause 60 Orders restricting public rights of way over highway

Clause 60 (1)

15) The Bill rightly recognises that restriction of public rights over highways is of such consequence that an authority wishing to impose an order to that effect must take into account certain matters relating to the status of the way as a highway, namely-

(a) the likely effect of making the order on the occupiers of premises adjoining or adjacent to the highway;

(b) the likely effect of making the order on other persons in the locality;

(c) in a case where the highway constitutes a through route, the availability of a reasonably convenient through route

(The same form of words as appears in the Highways Act in respect of Gating orders.)

Again, we would recommend that the opportunity be taken to strengthen the protection given to highways by importing a further matter for consideration, namely "any other measures that have been or could be taken for alleviating the activities which have had or are likely to have a detrimental effect on the quality of life of those in the locality".

It is essential that the gating of a through-route is a matter of last resort. The suggested form of words is taken from s.118B(8)(a) of the Highways Act which is concerned with the stopping up of rights of way for purposes of crime prevention and for reasons of school security.

Clause 60 (2)

16) The notification procedures prior to making an order which will restrict public rights over a highway are insufficient, and should provide for the Secretary of State to publish regulations to make these more rigorous. A suitable amendment would be the inclusion of a clause or clauses which provided that the Secretary of State (and Welsh Ministers) must by regulation make provision as to further procedures to be complied with by a council in relation to the making of a PSPO which would restrict access to a highway and that those regulations must include provision as to-

(a) the publication of a proposed order;

(b) public availability of copies of the proposed order;

(c) notification of persons (other than those referred to in clause 60(2)(a)) likely to be affected by a proposed order.

17) It would then be possible for the Regulations to explicitly provide for the notification of a comprehensive list of parties with an interest in highways, as is the case with Gating Orders. Those parties include other councils through whose area the highway in question passes, the emergency services, relevant NHS trusts, providers of gas, electricity, water or communications services, Local Access Forums [1] , and persons who have asked to be notified of any PSPOs which are applied to highways. This list should be extended to include the main public rights of way user groups who are prescribed to receive notice of the closure and diversion of public rights of way under the Highways Act 1980 [2] , and the Town and Country Planning Act 1990 [3] .

18) As with Gating Orders, the Regulations should provide for the holding of a public inquiry, where an objection has been received from the police, another emergency service, an NHS trust, or another council through whose land the way passes, but we strongly recommend that this list be extended to cover the receipt of objections from users of the way where that way constitutes a through route. Experience with Gating Orders has shown that it is possible for one or two local councillors to push through Gating Orders in the face of fierce opposition from the local community (see Annex 3). Independent arbitration would ensure that the evidence of anti-social behaviour is properly balanced against the needs of the local community. It is the lack of such independent scrutiny which has been our primary concern with Gating Orders since their introduction.

Clause 61 Categories of highway over which public rights of way may not be restricted

19) We have so far argued that public rights of way should be recognised by this legislation as requiring special treatment if they are to be closed to try to limit activities which are having a detrimental effect on the quality of life of local residents. A simpler way of protecting many (although not all) of the routes about which the Ramblers is concerned would be to amend clause 61 so that a PSPO cannot restrict the public right of way over a highway that is a way shown on a definitive map and statement [4] as a footpath, bridleway, restricted byway or byway open to all traffic. This could done either on the face of the Bill, or by way of the regulations mentioned in Clause 61(1) (e) and (f). The Bill clearly recognises that certain types of highway should not be stopped-up because of their strategic value: our view is that definitive rights of way may also be of vital importance to those who use them.

Clause 62 Challenging the validity of orders

20) Our experience with Gating Orders has shown that they are most commonly imposed in areas of high social deprivation, where those who are seriously affected by the loss of a route to local amenities would not be able to consider applying to the High Court to question the validity of a PSPO. In these situations, local people look to organisations such as the Ramblers to defend their interests and, where appropriate, to challenge any injustice through the courts. As the Bill is drafted we would not be able to undertake such a challenge for them. Such challenges are not undertaken lightly and we ask that the Bill be amended to delete the word "interested" and its definition from Clause 62.

Clause 67 Interpretation of Chapter 2

21) We are concerned to note that the interpretation of "local authority" in this chapter means-

"(a) In relation to England, a district council, a county council for an area for which there is no district council, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly."

Our concern arises because this interpretation appears to mean that in places where there is both a county council and a district council (which is still the situation over a quite a large part of England), then the power to make PSPOs would be restricted to the district council. This is a problem because, where there are two tiers of local government, it is the county council which is the highway authority and which is responsible for such things as rights of way improvement plans, Local Access Forums, for highway maintenance, and many other duties including the duty to assert and protect the public’s right to use highways. As the Bill is drafted it seems that where this is both a county and a district council, the power to make PSPOs would rest with the district council and it wouldn’t even have to consult the highway authority about the plans to close a highway. We would strongly recommend that this be re-considered.

22) Also in Clause 67 "public place"-

"(a) means any place to which the public or any section of the public has access, on payment or otherwise, as of right of by virtue of express or implied permission, … "

It is our view that the definition of "public place" is too broad, and should be restricted so that a PSPO cannot be used to restrict public access to land to such open space which the public at large so enjoys.

A simple amendment would prevent the use of PSPOs on such land. For example, insert into Clause 67-

(c) does not include registered common land, access land as defined in section 1 of the Countryside and Rights of Way Act 2000, town or village greens or local green space.

An alternative to amending the definition of "public place" in clause 67 would be to amend clause 55 so that a PSPO cannot be used as a blunt tool to simply prevent overall access to such land. This could be done, for example, by introducing a new sub-clause after 55(5)-

(6) A prohibition may not prevent access by all persons to registered common land, access land as defined in section 1 of the Countryside and Rights of Way Act 2000, town or village greens or local green space.

July 2013

Prepared 17th July 2013