Scottish Government

Environment Group Research Summary 2003/01
Review of the Litter and Flytipping Provisions of Environmental Protection Act 1990

Karen Raymond and Richard Witney, ERM Ltd.
This study was funded by the Scottish Executive Environment Group

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Main Findings

• The existence of two regimes and two regulators is identified as a perceived difficulty but the conclusion was that this is more one of confusion and lack of clarity rather than any fundamental problem with the law. The main recommendations therefore relate to preparation of simple, clear guidance for the regulators and others, supported by standard tools to facilitate implementation, and development of a non-statutory model agreement on co-ordination and collaboration between the regulators. It is suggested that the Scottish Executive takes the lead on this.

• It is recommended that extension of the "one witness" provision in litter legislation to flytipping should be explored.

• The powers available to SEPA under Section 68 of EPA 1990 should be investigated to see if SEPA could appoint suitably qualified local authority staff as waste regulation inspectors thus allowing them to require production of duty of care documents.

• The approach of extending local authorities' powers directly, to match those of waste regulation officers regarding production of documents, is not recommended. Nor is a change in legislation to allow local authorities to stop and seize vehicles.

• The level of fixed penalty for littering should increase and a two-tier penalty for late payment should be considered. Sending warning letters to parents is recommended as a good alternative to prosecution for under 16 year olds. Powers to issue Fixed Penalty Notices should be extended to the Police.

• The lack of use of Litter Abatement Orders by the public was noted and it is recommended that this right be widely publicised (via the new guidance series).

• Background

Litter and flytipping are significant problems for the environment and society today and surveys suggest that much of Scotland does not meet the basic standards of cleanliness expected of our cities, towns and rural areas. A lasting solution to this problem will require a fundamental shift in attitudes and behaviour and a sustained programme of action in improved cleaning, education and enforcement across Scotland but, in the meantime, legislation is one tool in the armoury that society has available to tackle the issue.

Current Law

The main legislation on litter and flytipping is found in the Environmental Protection Act 1990 (EPA 1990).

Sections 86 to 89 of EPA 1990 establish the criminal offence of littering applying to any public open place and impose a duty to control litter on defined "duty bodies" who control certain types of land that are accessible to the public. Sections 90 to 94 then provide various powers to local authorities and members of the public to control litter. A statutory Code of Practice on Litter and Refuse provides guidance to local authorities and duty bodies with regard to standards and grades of cleanliness in different types of places.

Section 33 of EPA 1990 creates the criminal offence of flytipping, which is the unauthorised deposit of waste on land that is not licensed for this purpose. Section 59 provides powers to the Scottish Environment Protection Agency (SEPA) and local authorities to require the removal of flytipped waste or to remove it themselves and recover the costs. Unlike littering, flytipping can apply to any land whether public or private, save only that it must not be land that is licensed for waste disposal.

Part IV of EPA 1990 sets out the legal provisions relating to litter, including the powers and responsibilities of local authorities and duty bodies, the rights of members of the public and the levels of fines incurred for leaving litter.

Current Practice

Over the period 1996-2002, 44 cases of flytipping were reported to the Procurator Fiscal by SEPA. Of these, sixteen were successfully prosecuted and a further sixteen received warnings or Fiscal fines. On prosecution, sentences ranged from admonishment to fines of between 50 and 1,200. SEPA also served eight notices on landowners requiring the removal of flytipped waste from land.

Local authorities in Scotland appear not to report cases to the Procurator Fiscal or use their powers to serve notices requiring removal of waste. Reasons mentioned for this include lack of resources, the difficulty of establishing guilt, and a view that prosecution for flytipping and serving notices on private land was SEPA's responsibility.

Two thirds of local authorities have set up Fixed Penalty systems for litter. The appointment of officers authorised to issue Fixed Penalties Notices varies according to the priority given to litter and the availability of resources. The number of notices served varies and many authorities prefer to rely on warnings and to focus resources on awareness raising.

Occasional use is made of Litter Control Area designation, Litter Abatement Notices and Street Litter Control Notices. As far as could be established no member of the public has ever served a Litter Abatement Order on a duty body.

Key Issues and Recommendations

The research highlighted a range of issues relating to the effectiveness of the current arrangements. As stated in the main findings, the development of a non-statutory model agreement between SEPA and local authorities and standard tools for use in specific circumstances would address confusion arising from the existence of two regimes and two regulators.

Specific issues highlighted with respect to flytipping law and practice include:

• the requirement for two witnesses to an offence in Scots Law. It is recommended that application of the "one witness" provision in litter legislation to flytipping should be explored;

• the absence of powers for local authorities to obtain documents proving failure of duty of care for waste as evidence in support of prosecution under Section 33. The powers available to SEPA under Section 68 of EPA 1990 should be investigated to see if SEPA could appoint suitably qualified local authority staff as waste regulation inspectors;

• problems of flytipping around civic amenity sites. Options for dealing with flytipping around civic amenity sites should be investigated further including clarifying responsibility and resources for clearing waste around site entrances and altering opening hours to better suit demand;

• the absence of powers for local authorities to stop and seize vehicles. A change in legislation to allow local authorities to stop and seize vehicles is not recommended.

Specific issues highlighted with regard to litter include:

• fixed penalty level. It is recommended that the level of penalty be increased and that introduction of a two-tier penalty for late payment be considered;

• difficulties in serving notices if the offender will not give a name and address. Agreeing mechanisms for the Police to support authorised local authority officers would appear to be the best option to address this;

• under-16 year olds. Sending warning letters to parents is recommended as a good alternative to prosecution;

• litter from vehicles. A suggested approach would be to give the Police Fixed Penalty Notice powers. The option of applying the "person in control of the vehicle" provision that applies to flytipping to the offence of littering should be investigated;

• litter on private land. It was concluded that additional powers were not needed to deal with littering on private land;

• litter on roads. The split of duties for maintenance and cleansing on non-special trunk roads between the Scottish Ministers and Operating Companies (OCs) and local authorities should be removed, and consideration given to making the OCs responsible for litter removal on all trunk roads;

• use of Litter Abatement Orders. The lack of use of Litter Abatement Orders by the public was noted and it is recommended that this right be widely publicised (using a leaflet in the new guidance series);

• revision of Code of Practice. A few minor improvements and some editing to make it simpler are recommended.

Other issues raised which are relevant to both flytipping and litter were the difficulty of preparing cases for prosecution and reporting these to the Procurator Fiscal, and the Procurator Fiscal's perceived reluctance to pursue cases. The latter view is not supported by the data, which indicate that 80% of flytipping cases were responded to. The development of guidance on preparation of cases and standard reporting formats would help the former.

Resource Implications

A general comment was that lack of resources prevented more widespread use of the powers available to the regulators. It is recommended that this be investigated further to see how far this is a constraint and the extent to which effective guidance could reduce the burden of controlling litter and flytipping.

The main direct resource implications of the study recommendations will be for the body or bodies that take the lead in developing the guidance and model agreement. It is suggested that this should be the Scottish Executive with the active involvement of the regulators and other interested parties. The implications for local authorities and SEPA will depend on the extent to which the new practical arrangements encourage the two regulators to be more active in using the powers already available to them. To the extent that they do more, these functions are likely to require additional personnel and financial resources. The new guidance and standard tools should, however, help to ensure that the resources that are available are used to greater effect. If this happens it will provide a major benefit to the environment and the public in Scotland.

Research Methods

As part of this research all 32 local authorities in Scotland were consulted by questionnaire and follow up interview, and SEPA's view was obtained by discussions with key personnel. As well as the regulatory bodies, a number of duty bodies including the Scottish Executive Roads Department, Railtrack (Scotland), the Crown Estate, BAA and Forth Ports, and interested parties including Keep Scotland Beautiful, the Marine Conservation Society, the National Trust for Scotland and Forest Enterprise, were consulted. Two workshops were held with interested parties to explore issues and options.

If you wish to receive further copies of this Research Summary, or have any enquiries about the study, please contact:

SEPA Sponsorship and Waste Unit
Scottish Executive ERAD
Area 1-J (north)
Victoria Quay
Edinburgh
EH6 6QQ
Tel.: 0131-244-0236
Email: waste.team@scotland.gsi.gov.uk

If you wish to receive a copy of the full Research Report on which this Research Summary is based, please send a cheque for 5.00 made payable to 'The Stationery Office Ltd.' to:
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71 Lothian Road
Edinburgh
EH3 9AZ
Tel.: 0870-606-5566
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Web: www.tso.co.uk

This Research Summary, the full Research Report and the Scottish Executive's Response to this research may also be obtained from the Scottish Executive website at www.scotland.gov.uk/publications.