Clean Neighbourhoods and Environment Act 2005

The final provisions of the Clean Neighbourhoods and Environment Act 2005 (CNEA) came into force on 6 April 2006. The CNEA introduces several important amendments to the Environmental Protection Act 1990 (EPA). These amendments reflect the current intention of the Government to take a tougher line on the illegal deposit of waste and litter and to promote a cleaner environment. This note details the provisions that will have the most significant effect on businesses.

1. Shopping trolleys

Local Authorities (LAs) are given the power to recover the cost of removing and disposing of abandoned shopping trolleys from the apparent owner of the trolley.

2. Nuisance: Artificial light It is a statutory nuisance to emit artificial light in a way that is prejudicial to health or a nuisance.

3. Litter It is an offence to drop litter on any open land, including private land.

4. Litter Clearing Notices A principal litter authority can serve a notice to compel occupiers (or owners) to remove litter from their land and take steps to prevent future littering.

5. Waste

The penalties for fly-tipping are increased. Further penalties are introduced to allow enforcement authorities to recover their costs of investigating and cleaning up fly-tipped waste. Fixed Penalty Notices are introduced for failure to produce waste transfer notices within a specified time period.

1. Shopping trolleys LAs have the power to seize or remove an abandoned shopping or luggage trolley under para 2(1) sch 4 EPA. The LA must notify the owner of the trolley of its seizure or removal but may dispose of the trolley if it is not claimed within a period of 6 weeks.

Section 99 of the CNEA gives LAs the additional power to demand payment from the apparent owner of an abandoned trolley for the expense incurred in removing, storing and disposing of the trolley after the 6 week period has expired. Paragraph 3(1) Schedule 4 EPA states:

The sum charged is payable to the LA on demand and can be recovered as a debt if it is not paid. There is a defence to the charge available if the person on whom the sum is levied was not in fact the owner of the trolley at the time it was removed (para 3A(5) sch 4 EPA).

The amount of the charge will be fixed by the LA. Paragraph 4(1) Schedule 4 EPA states:

Guidance issued by DEFRA indicates the LA must set a standard charge within the terms of the legislation, which should reflect the average cost of dealing with abandoned trolleys in its area. In calculating the charge, the LA may include:

1. administrative costs:
2. staff time:
3. collection and delivery; and
4. physical storage space.

S. 99 EPA details the procedure whereby LAs can introduce the provisions of Schedule 4 EPA. The LA must:

1. Consult with persons affected (s. 99(3) EPA).
2. Make the resolution, stating the date it will come into force (which must be not less than 3 months from the date the resolution is passed) (s. 99(1) EPA).
3. Publish notice of the resolution (s. 99(2) EPA).
4. From time to time, consult and review progress (s. 99(4) EPA).

2. Nuisance: Artificial light

Artificial light emitted from premises so as to be prejudicial to health or a nuisance will constitute a statutory nuisance.

There are several exceptions to this provision, including light emitted from an airport, harbour, railway, tramway or bus station.

‘Nuisance’ and ‘prejudicial to health’ are given their common law meanings.

Nuisance involves an act or omission that inflicts damage, injury or inconvenience on either the public or members of a class (public nuisance), or interferes with another persons use or enjoyment of land or a right connected with that land (private nuisance).

Prejudicial to health describes an act that is injurious or likely to cause injury to health.

3. Litter

S. 18 CNEA amends s.87 EPA to extend the littering offence to all open places.

‘(1) A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.

(2) This section applies to any place in the area of a principal litter authority which is open to the air, subject to subsection (3) below.

(3) This section does not apply to a place which is ‘open to the air’ for the purposes of this Part by virtue of section 86(13) above if the public does not have access to it, with or without payment.’

The definition of ‘open to the air’ in s. 86(13) includes an area that is covered provided it is open to the air on at least one side (for example, a bus shelter or garage forecourt).

Section 87(3) therefore provides that if a covered area is ‘open to the air’ because it is open to the air on one side, the s.87 offence will only apply if the public have access to that covered area.

S. 18 CNEA also inserts a new s. 87(4A) which retains the previous exception:

Under s. 88(1) EPA, a person guilty of littering can be issued with a Fixed Penalty Notice. Section 88(6A) EPA (inserted by s. 19(1) and (2) CNEA) allows a principal litter authority to specify the level of the Fixed Penalty Notice in their area. If they do not do so, the default level is £75.

4. Litter Clearing Notices (LCNS)

These enable the principal litter authorities to require an occupier (or if the occupier cannot be found, the owner) of land defaced by litter to clear it. Where appropriate, the authorities can also compel the occupier or owner to take steps to prevent the land from becoming defaced again. Before issuing a LCN, the authority should try to persuade the occupier or owner to clear the land voluntarily. An LCN should be issued only if this course of action fails.

A ‘principal litter authority’ includes county councils, district councils and London Borough Councils (s. 86(2) EPA).

An LCN can only be served if land is defaced by the litter and this is detrimental to the amenity of the area (s. 92A(2) EPA). LCNs can be served on all types of land, including private land, except those in s. 92A(11) EPA. The LCN must state a deadline for compliance, which must be at least 28 days.

S. 92C EPA makes it an offence to not comply with a LCN punishable by a fine of up to level 4 on the standard scale (currently £2,500).

A person served with a LCN can appeal to the magistrates' court within 21 days of service. S. 92B(3) EPA sets out the following grounds for appeal:

i. There is a material defect or error in, or in connection with, the notice.

ii. The notice should have been served on another person.

iii. The land is not defaced by litter or refuse so as to be detrimental to the amenity of the locality.

iv. The action required is unfair or unduly onerous.

S. 92A, 92B and 92C EPA were inserted by s. 20(2) CNEA.

Principal litter authorities have similar powers under s. 93 EPA to require occupiers of premises to clean streets of litter associated with those premises (for example, fast food restaurant packaging, ATM receipts from banks, etc).

5. Waste

5.1 Fly-tipping

Sections 41 - 43 CNEA amend and extend the penalties for the unauthorised deposit of waste (more commonly known as fly-tipping). The offence is created by s. 33(1) EPA which states: ‘Subject to subsection (2) and (3) below a person shall not-

(a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence;

(b) treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of-

1. in or on any land, or
2. by means of any mobile plant, except under and in accordance with a waste management licence;

(c) treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health.’

‘Controlled waste’ is defined as household, industrial or commercial waste, or any such waste (s. 75(4) EPA).

It is a defence for a person accused of the s.33(1) EPA offence to prove that:

1. they took all reasonable precautions and exercised all due diligence to avoid the commission of an offence; or
2. the act was done in an emergency in order to avoid danger to human health.

s. 41 CNEA inserted a new s. 33(8) which states that the penalties for contravention of s.33(1) EPA are:

1. on summary conviction, up to 12 months imprisonment and/or a fine not exceeding £50,000 or
2. on indictment, up to 5 years imprisonment and/or a fine.

The increase in penalties was introduced to reflect the Government's desire to take a tougher stance on environmental crime and stress the serious consequences of disposing waste illegally.

Under s. 33(5) EPA, a person having control over the use of a motor vehicle used in the commission of the offence shall be treated as knowingly causing waste to be deposited. Therefore if a company vehicle is used to flytip controlled waste, the company could be liable for commission of a s.33(1) EPA offence.

In addition to the above penalties, a court may order a person convicted of a s.33(1) EPA offence to pay the enforcement authority a sum to cover their costs of investigating and enforcing the offence (s. 33A EPA, inserted by s. 42 CNEA).

The enforcement authorities are the LA and the Environment Agency (s. 30(1) EPA).

Further, a court can order the person convicted to pay the authority's costs incurred in removing waste illegally deposited and cleaning up the land (s. 33B EPA, inserted by s. 43 CNEA).

If an establishment or undertaking is connected with a s. 33(1) offence, a court may also order that any vehicle used in the commission of the offence be forfeited. In making the order, a court must take into account the value of the vehicle, the financial effect of forfeiture and the offender's need to use the vehicle to continue his lawful business (s. 33C EPA, inserted by s. 44(1) CNEA).

5.2 Requirement to produce documentation

Any person who imports, produces, carries, keeps, treats or disposes of controlled waste has a duty of care to take all measures applicable:

1. to prevent contravention by any person of a s. 33 EPA offence, or
2. on transfer of the waste, to secure:

Further, the Environmental Protection (Duty of Care) Regulations 1991 (SI 1991/2839) impose a duty to keep written descriptions of waste and waste transfer notes for a period of 2 years from the date of the transfer (Regulation 3). The authority can serve a notice demanding that copies of waste transfer notes be delivered to the specified office within a specified period of not less than 7 days (Regulation 4).

Section 45 CNEA inserts a new s. 34A into EPA which allows a regulation authority to impose a Fixed Penalty Notice if a person fails to produce a waste transfer note after the specified period has elapsed. The amount of the Fixed Penalty Notice is currently set at £300.

5.3 Liability for owner of land to remove unlawfully deposited waste

Under s. 59 EPA, waste collection authorities have had the power to serve a notice on the occupier of land to require him to:

1. remove waste unlawfully deposited on his land and/or

2. itake steps to eliminate or reduce the consequences of the deposit of waste

within a specified period, which cannot be less than 21 days.

‘Waste collection authorities’ are district councils (s. 30(2)(a) EPA).

An occupier so served has grounds for appeal in s. 59(3) EPA:

1. that he neither deposited nor knowingly caused or permitted the waste to be deposited (s. 59(3)(a) EPA) or
2. there is a material defect in the notice (s. 59(3)(b) EPA)

Section 50 CNEA inserts s. 59ZA into EPA which extends these powers to allow a waste collection authority to serve a notice on the owner of the land. A notice can be served on the land-owner if:

1. there is no occupier or the occupier cannot be found (s. 59ZA(2) EPA):
2. the authority has served a notice on the occupier and the occupier has not complied (s. 59ZA(3) EPA); or
3. the authority has served a notice but it has been quashed under the appeal ground in s. 59(3)(a) (s. 59ZA(4) EPA).

The notice can require the land-owner to comply with s. 59(1)(a) and/or (b) to the same extent as an occupier.

Guidance issued by DEFRA on the new s. 59ZA indicates that this is an option of last resort, to be used if the occupier of the land cannot be found. However as indicated the legislation goes further than this requirement, allowing waste collection authorities to pursue a land-owner if the occupier does not initially comply with a s. 59 notice or if the occupier did not deposit or knowingly cause or permit the deposit of controlled waste.

Failure to comply with a notice served under s. 59 and s. 59ZA may result on summary conviction to a fine not exceeding level 5 on the standard scale (currently £5,000). In addition, a daily fine of one-tenth of a level 5 fine is payable for each day the failure to comply continues after conviction.