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Defining Litter

What is Litter?

The definition of litter is important as littering constitutes a criminal offence, in particular to distinguish the lesser offence of littering from the more serious offence of fly-tipping. The definition of litter is less important, however, in relation to the clearance obligations of local authorities because they have a broad remit of removal duties for waste (which incorporates litter, detritus and refuse, as well as dog excrement, chewing gum etc).

The EPA 1990 contains only a partial definition of 'litter'. Due to the particular problems that discarded cigarettes and chewing gum cause on our streets, the EPA 1990 under Section 98(5)A clarifies that such items fall within the definition of litter, thus:

(5A) 'Litter' includes —

Otherwise, in practice, it is left to the courts to determine whether a particular item complained of constitutes 'litter', and the courts have interpreted the definition widely. In the case of Westminster City Council v. Riding, the High Court took an approach based on the term's natural or ordinary meaning, stating that the word 'litter' in the EPA 1990:

'should be given its natural meaning of miscellaneous rubbish left lying about. Rubbish left lying about can consist of all manner of things including domestic household waste, commercial waste, street waste and no doubt other waste not falling within such description'.

The court also states that such rubbish might qualify under different terms, such as waste.

Clearer guidance was provided in 2006 by the Department for Environment, Food and Rural Affairs (DEFRA), which suggested:

'Litter is best defined as something that is improperly discarded by members of the public in an area. It includes sweet wrappers, drinks containers, cigarette ends, gum, apple cores, fast food packaging, till receipts, small bags...'

'Litter is something, more often than not, synthetic, which is improperly discarded by members of the public whilst sitting, walking or travelling through an area'.

Litter versus Fly-Tipping

The law makes a distinction between litter and fly-tipping based on size. While both are criminal offences, the distinction is important since the amount of monetary fines are greater for the offence of fly-tipping than for littering.

In 2006 the organisation ENCAMS (now known as Keep Britain Tidy) suggested that 'Litter can be as small as a sweet wrapper, or as large as a bag of rubbish, or it can mean lots of items scattered about'. Similarly, the court in the Westminster City Council v. Riding case decided that rubbish in a black bin bag may also amount to litter. However, DEFRA's 2006 Code of Practice on Litter and Refuse stipulates that 'a single plastic sack of rubbish' or greater should usually be considered to be fly-tipping rather than litter.

DEFRA refers only to 'small bags' in its definition above. Since DEFRA's definition of litter, which was provided after the enactment of the 2005 Clean Neighbourhoods and Environment Act, appears to be narrower than that laid down in Riding, it is possible that the 2005 Act has served to narrow the range of items considered to fall within the definition of litter as distinguished from the more serious criminal offence of fly-tipping.

While 'litter', therefore, will be given its ordinary meaning by the courts and, thus, similarly by an enforcement officer, the size of the bag of rubbish or item(s) dropped does remain a grey area. Someone leaving a bag of rubbish by the roadside, for example, could be charged with the more serious offence of fly-tipping.


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