Appendix 2: Draft Littering From Vehicles Outside London (Keepers: Civil Penalties) Regulations 2018
Additional Information from the Department for Environment, Food and Rural Affairs
Q1: In the Explanatory Memorandum you say: “Section 24 of the London Local Authorities Act 2007 (amended in 2012) confers powers on borough councils in London to impose a penalty charge on the owner of vehicles from which litter is thrown, but these powers are not currently available in respect of the rest of England. Section 88A of the Environmental Protection Act 1990 empowers the Secretary of State to confer similar powers on authorities in England.” Why were these powers given to borough councils in London but not to other English local authorities at the same time?
A1: The London Local Authorities Acts 2007 and 2012 which created the powers were private (rather than Government) legislation, sponsored and introduced by London Councils.
Q2: What has been the experience of borough councils in London in their use of these powers, and what has been the reaction of other interested parties in London?
A2: Government undertook a scoping study in 201514 to understand councils’ expectations and attitudes to enforcement against littering from vehicles. This included interviews with two London Boroughs about their experiences. London Councils and a small number of London boroughs and other London-based organisations also responded to the consultation last year, as described in the Summary of Responses. All these responses were positive and supported the proposals, except where described in the Summary.
Q3: In the scoping study in 2015, the interviews with two London Boroughs about their experiences offered little support for a system of Penalty Charge Notices. The study says: “Only one of these authorities had started to use PCNs to enforce against littering from vehicles. The other London Borough stated they had not started to use PCNs because they did not believe that littering from vehicles was a main problem within their borough, and had higher priorities than setting up a civil process to tackle littering from vehicles… In the case of the one London Borough that had started to use a PCN system, they had experienced a lot of problems in firstly processing this type of fine, and then subsequently recovering the fine as a civil debt.” Did the Government give no weight to this actual experience in deciding to extend the power to other local authorities?
A3: Extending the London powers “immediately” to the rest of England was a recommendation of the House of Commons Community and Local Government Committee in its 2015 Report on Litter and Fly-Tipping in England.15 In giving evidence to the Committee, Shaun Morley of Wandsworth Borough Council explained that: “Obviously, we have the benefit of the London Local Authorities Act and, as was mentioned by previous colleagues, we have piloted that. It has been quite successful, in that we have used it to good effect. The enforcement guys have been very successful at it. They have got to understand the likely candidates who are going to throw something out of the window. […] What we have found is that the legislation has not been in place properly for us to take it to its full conclusion. Because it is through PATAS—the Parking and Traffic Appeals Service—and it is a penalty-charge notice, there is a cycle of appeal, etc. and at the end of it, it is not in place. Yes, we have been quite successful and we have a payment rate of about 60%, but if we have to go to the next stage that mechanism is not in place to take it to its final conclusion.” (Q87) Despite these difficulties, in their written evidence to the CLG Committee, Wandsworth Council still recommended that the powers be extended outside London (LIT041 paragraph 20).
In developing the policy and Regulations since 2015 we have had several conversations with Wandsworth Borough Council, including learning from the difficulties they experienced in processing and recovering unpaid penalties. The issues they described in 2015 have since been resolved, and they are now able to process appeals and recover unpaid penalties effectively. We have also engaged with the Traffic Penalty Tribunal and the Ministry of Justice in developing our draft Regulations, to ensure that appropriate procedures are in place for appeals and recovery of unpaid penalties under the new Regulations, and that we do not replicate the problems initially experienced in London.
Both London Councils (as the body representing London borough councils) and the Local Government Association are also members of the Litter Strategy Advisory Group, which helped to shape the Litter Strategy for England, including the commitments in respect of tackling littering from vehicles and roadside litter. On the publication of the Strategy and consultation on the proposed new powers, the LGA said: “Allowing councils to fine the owners of vehicles which litter is thrown from, rather than expecting councils to prove who exactly in the vehicle had thrown litter, is also something that the LGA has long called for. It is great that from April, councils will be able to get tough with the anti-social minority who think our roads are a repository for rubbish.”
Q4: Regulation 14 deals with representations about receipt of a penalty charge notice. Regulation 14(2) says that representations must be made within 28 days; 14(6) gives as a possible ground for a representation that the vehicle in question was stolen; and 14(17) specifies the documents needed to support representations about a stolen vehicle. Does Defra consider that the timing allows the keeper/owner of a stolen vehicle enough time to make his or her case to the litter authority?
A4: A period of 28 days to make representations is consistent with other similar legislation (for example, Regulation 8(2) of the Road User Charging Schemes (Penalty Charges, Adjudication and Enforcement) (England) Regulations 2013), and is considered sufficient to obtain the relevant documents. This has not been raised as an issue with Defra by any of the respondents to the consultation, or other stakeholders (including the Traffic Penalties Tribunal).
12 and 16 January 2018
14 See: http://sciencesearch.defra.gov.uk/Default.aspx?Menu=Menu&Module=More&Location=None&Completed=0&ProjectID=19619#Description
15 Seventh Report of Session 2014–15 (HC Paper 607) (paragraph 64).