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Traffic Light System
for Analysis of Litter Law

  

Different littering laws have been analysed and rated as 'green', 'amber' or 'red'. This system has been applied to broad areas of law on the litter. Six different measures have been used to assess how the law is ranked. If 5 or 6 of the measures are satisfied, the law is rated 'green', if 3 or 4 of the measures are satisfied the law is rated as 'amber' and if 1 or 2 of the measures are satisfied the law is rated as 'red'. 'Green' indicates the law is satisfactory, 'amber' indicates that the law needs improvement, 'red' indicates that the law is in urgent need of reform.

This system involves a qualitative analysis of data obtained from interviews, questionnaires, freedom of information requests and a literature review of key legislation, case law, government guidance (i.e. from DEFRA) and academic commentary on litter law. The six different measures used to establish where each area of litter law lies on the spectrum is laid down as follows:

Effectiveness

This assesses the extent to which the government's objective of preventing litter been satisfied via legislative intervention. This analysis involves an examination of the quantitative and qualitative effects of the intervention and identification of any unexpected/unintended effects of the intervention.

Efficiency

The relationship between the resources used to address litter and the changes created by intervention to prevent littering. This assesses the extent to which the costs involved in addressing the littering problem have been justified given the effects of the intervention. It also considers the cost-effectiveness of these measures, i.e. whether the expenses involved in addressing the litter problem outweigh the associated expenses of not addressing the problem.

Relevance

This criterion examines the relationship between the objective of preventing littering and whether the measures taken (i.e. legislative or practical intervention to address litter) have been appropriate.

Coherence

This criterion looks at the coherence of law and principal litter authorities' ability to address littering via the application of legislation or the use of other measures or collaborative efforts with other bodies (e.g. volunteers and businesses). This considers how well different bodies and measures work in practice to prevent littering.

Accessibility

Common difficulties with law can be stated as follows: there can be a considerable amount of law, the law can be difficult to find, challenging to understand and may change frequently. This criterion assesses the extent to which relevant law on littering is accessible to members of the public and to the bodies which have powers and duties under the law (e.g. councils).

Enforceability

This criterion considers whether relevant statutory provisions on littering can be enforced and, if not, what practical difficulties exist which prevent the enforcement of the law.

 

Aquatic Litter

This category concerns litter which can be found in rivers or watercourses.

Effectiveness

The existing laws (the Public Health Act 1936, the Transport Act 1968, the Environment Act 1990, the Water Resources Act 1991, the Land Drainage Act 1991 and bye-laws on rivers) and relevant government guidance do not include explicit duties for specific bodies (e.g. councils, the Canal and River Trust, the Environment Agency) to remove litter in rivers and watercourses. Currently, only discretionary powers exist which permit authorities to clear litter from riparian owners' land or order riparian owners to clear such litter.

Efficiency

The Canal and River Trust is responsible for approximately 2,000 miles of waterway. Other bodies responsible for rivers and watercourses include the Environment Agency, the London Port Authority and other owners which may include councils. Under the Transport Act 1968, larger pieces of rubbish amounting to an obstruction must be removed for the purposes of navigation. However, limited resources are invested into clearing litter and fly-tipped waste from rivers for amenity purposes.

Rivers and watercourses may run through land owned by councils which do not appear to have an explicit duty to clear litter in bodies of water. Interviews of local volunteer groups in Essex revealed that litter in rivers and watercourses will generally be removed by volunteers and not by councils. It would be helpful for an assessment to be undertaken to establish the costs of clearing litter from rivers and watercourses and to consider potential expenses associated with the failure to remove such litter.

Relevance

There is legislation to address litter such as the Environmental Protection Act 1990, ss87-89. Under s89, there is a duty imposed upon local authorities and other bodies to clear litter from 'relevant land'. However, it is important to contrast s87 with s89 of the Act. Analysis reveals that it is an offence to drop litter in bodies of water (the Act states at s87(1)(4) that it is: 'immaterial for the purposes of this section whether the litter is deposited on land or in water') but there is no reference to bodies of water at all in s89. Therefore, it can be concluded that the omission of the reference to 'water' in s89 means that the duty applies in respect of clearing litter from the land but not to clearing litter found in water.

There are no specific duties to clear litter from the water, however there is a specific duty on the Canal and River Trust under s105(1) of the Transport Act 1968 to 'maintain waterways' in a 'suitable condition'. However, this research indicates that the scope of the Transport Act creates a very narrow duty and is unlikely to impose a specific duty to clear litter from waterways.

Coherence

According to voluntary organisations involved in clearing litter and several councils, it can be difficult to determine ownership of rivers or watercourses. Thus, this means it is challenging to determine who has responsibility for maintaining waterways, thereby making it more difficult to exercise discretionary powers requiring owners to clear litter.

Councils sometimes work with riparian owners such as the Canal and River Trust, the Environment Agency and the London Port Authority as well as volunteer groups to clear litter. In practice, aquatic litter is dealt with via volunteer efforts. Locally, the Wivenhoe Kayak and Canoe Club regularly organise events to collect litter and fly-tipped waste found along the River Colne. Staff at local businesses such as Tesco also become involved in these initiatives. Colchester Borough Council provides bin bags, hoops and litter-pickers. The Wivenhoe volunteers are part of a much larger grassroots initiative known as RiverCare which is delivered by Keep Britain Tidy in a partnership with Anglian Water.

Although the volunteers, businesses and councils work well to organise river clean-ups, there is no clear legal framework determining which body (or bodies) have a duty to clear litter. Despite regular clean-up events, smaller pieces of litter and fly-tipped waste (e.g. old furniture) continue to be found in rivers.

Accessibility

'Living on the Edge', a guidance document produced by the Environment Agency states that riparian owners have a duty to clear litter from rivers and other watercourses. Many councils have produced similar advice on their websites. However, in contrast to litter on land, it was challenging to establish which legislation applied in respect of litter in the water and how these statutory provisions work together.

This research has revealed that in addition to the Environmental Protection Act 1990, key legislation which may have a bearing on aquatic litter include the Water Resources Act 1991, the Land Drainage Act 1991 and the Transport Act 1968. However, all of these statutes indicate that no explicit duty to clear litter from rivers or watercourses exists.

There is a need to provide specific clarification on whether there is in fact a duty to clear litter from rivers and watercourses and, if so, which body (or bodies) can be held responsible. Legislative reform may be needed to establish such a duty on a relevant body (or bodies).

Enforceability

Bodies such as the Environment Agency and councils have powers to compel private owners to remove obstacles from rivers and watercourses and these bodies can also go onto land to remove such obstacles under the Land Drainage Act 1991. Although this power does not explicitly refer to the removal of litter, a wide interpretation could have the potential to enable the Environment Agency and councils to address this litter problem. However, it is unclear how often this power is used in practice and difficulties in establishing ownership can mean that councils do not know who to take action against.

Dropping litter in water is an offence under s87 of the Environmental Protection Act 1990 but there are two main problems which exist in respect of the enforcement of this offence. The first, outlined by district and borough councils, is that without witnesses who have seen litter being dropped, it is not possible to issue Fixed Penalty Notices (FPNs).

According to volunteer groups, another specific difficulty with litter in water is its tendency to flow for many miles beyond where it was first dropped. This means it is difficult to pinpoint where the litter has originated from and thus, to take measures to enforce criminal law provisions. It would be helpful to pinpoint sources where litter is dropped into the river and to take measures based on this knowledge.

 

Marine Litter

This category concerns litter which can be found in the sea.

Effectiveness

Despite the existence of an expansive legislative framework under the Environmental Protection Act 1990, marine litter is an area which has not been fully addressed by existing legislation. District and borough councils have a duty under s89 of the Environmental Protection Act to clear litter from beaches under their authority. This includes litter in the sea, up to the mean high-water mark.

However, there is no duty imposed on a specific body (or bodies) under s89 to clear litter which is floating out at sea. However, organisations such as the Environmental Agency and the Maritime and Coastguard Agency have duties to address more serious incidents of marine pollution.

Efficiency

Measures are undertaken by appropriate bodies (including councils) to clear up litter which washes onto beaches from the sea. However, the lack of existence of a body which is duty-bound to clear litter from the seas means that bodies such as councils, the Maritime and Coastguard Agency and the Environment Agency invest their efforts into general ocean pollution rather than in specific strategies to tackle marine litter.

Marine litter can wash up on beaches which does fall within the remit of district and borough councils (see analysis of beach litter). Litter which floats beyond the mean high-water mark is not addressed by any specific body. Volunteer initiatives are generally aimed at clearing beaches. Measures need to be taken to evaluate the costs of clearing marine litter versus not clearing up such litter. Marine litter is known to affect marine wildlife and ecosystems and to have a negative impact on the quality of water.

Relevance

As considered above, there are no bodies which are duty-bound to clear litter from the sea and limited legislative measures aimed at addressing litter. The measures that are taken by district and borough councils to clear up beach litter are appropriate but it may be that additional campaigns are needed to address marine litter and a legislative framework aimed at tackling this type of litter would be helpful.

The clearance of marine litter is a wider issue which ought to fall to a specific body (or bodies) with a wider jurisdiction, such as the Maritime and Coastguard Agency or the Environment Agency.

There is an anomaly, however, whereby it is a criminal offence to drop litter in the sea under s87 of the Environmental Protection Act 1990 despite the lack of a corresponding duty under s89 of the Act for relevant bodies (e.g. district and borough councils) to clear marine litter.

Coherence

Although district and borough councils are responsible for clearing beaches and form effective partnerships with voluntary groups, there is no clear framework to establish duties to clear litter from the sea. In fact, research has demonstrated that there is confusion between the different bodies (e.g. councils, the Environment Agency and the Maritime and Coastguard Agency) over where responsibility lies.

Accessibility

The absence of specific duties in relation to clearing litter from bodies of water makes it clear that there is no body with a specific duty to address marine litter. As considered above, different bodies such as councils, the Environment Agency and Maritime and Coastguard Agency are aware that they are not responsible for clearing litter from the sea but remain unclear as to who is responsible for clearing this litter.

Work needs to be undertaken to clarify the lack of an existing duty and to assign this duty to a specific body or create a new body which is duty-bound to address litter in the sea.

Enforceability

Dropping litter in water is an offence under s87 of the Environmental Protection Act 1990 but there are two main problems which exist in respect of the enforcement of this offence. The first, outlined by district and borough councils, is that without witnesses who have seen litter being dropped, it is not possible to issue Fixed Penalty Notices (FPNs).

According to volunteer groups, another specific difficulty with litter in water is its tendency to flow for many miles beyond where it was first dropped. This means it is difficult to pinpoint where the litter has originated from and thus, to take measures to enforce criminal law provisions. It would be helpful to pinpoint sources where litter is dropped into the sea (whether this is from passing boats/ships or sewage-related) and to take measures based on this knowledge.

 

Beach Litter

This category concerns litter which can be found on beaches (up to the mean high-water mark).

Effectiveness

District and borough councils have a duty under s89 of the Environmental Protection Act 1990 to clear litter from beaches under their authority. The Crown Estate and some private landowners also have responsibilities for clearing beaches which they own. This duty of clearance includes litter in the sea, up to the mean high-water mark. However, there is no duty imposed on a specific body (or bodies) to clear litter which is floating out at sea. However, bodies such as the Environmental Agency and the Maritime and Coastguard Agency have duties to address more serious incidents of pollution out to sea.

It is a criminal offence under s87 of the Environmental Protection Act 1990 to drop litter on relevant land which includes beaches. However, despite the existence of duties imposed on local authorities to clear litter coupled with the offence, beach litter remains problematic.

Efficiency

Although measures are undertaken to clear up litter which washes up onto the beach from the sea, the lack of existence of a body which is duty-bound to clear litter from the seas means that bodies such as councils, the Maritime and Coastguard Agency and the Environment Agency do not have a specific strategy to tackle marine litter (as considered elsewhere). Marine litter can, however, wash up on beaches. When this occurs, the clear up of litter does fall within the remit of district and borough councils (see our analysis of beach litter).

Beach clean-up is undertaken by district and borough councils, sometimes in partnership with volunteer groups such as Beach Care, Surfers Against Sewage and other concerned citizens. Seaside district and borough councils invest additional resources in beach clean-up, including the provision of extra staff and bins during the summer months when there is an increased amount of litter.

Relevance

Despite the existence of a suitable legal framework under the Environmental Protection Act 1990 and considerable efforts of work undertaken by volunteers and measures taken to clear litter by district and borough councils, additional measures are necessary to tackle beach litter. This is where targeted advertising campaigns, for example, might be a beneficial measure.

Furthermore, concern has been expressed by some voluntary groups that mechanical beach cleaning used to address the problem of litter may be damaging to the ecosystems present on beaches.

Coherence

District and borough councils, the Crown Estate and private landowners are clear on which beaches they are responsible for and what work needs to be undertaken in respect of clearing beach litter. Many initiatives see beach-owners such as councils working well with volunteers such as BeachCare.

Accessibility

It is clear to district and borough councils, the Crown Estate and other private landowners that they are responsible for clearing litter from beaches up to the mean high-water mark. They take measures to address litter on beaches and work well with voluntary organisations and concerned citizens who seek to clear litter. The confusion which exists is primarily over where responsibility lies for clearing litter from the sea (see marine litter).

Enforceability

Dropping litter on relevant land is an offence under s87 of the Environmental Protection Act 1990 but there is a problem which exists in respect of enforcement of this offence. District and borough councils have stated that without witnesses who have seen litter being dropped, it is not possible to issue Fixed Penalty Notices (FPNs).

 

Highway Litter

This category concerns litter which can be found on highways (including motorways and trunk roads).

Effectiveness

The duty to clear highway litter is split between Highways England (formerly known as the Highways Agency) and district and borough councils under s89 of the Environmental Protection Act 1990. Highways England also has a duty to maintain roads under the Highways Act 1980. It is a criminal offence under s87 of the Environmental Protection Act 1990 to drop litter on relevant land which includes highways.

Efficiency

Highway litter is a significant problem which is unsightly and, in certain circumstances, hazardous. Clearing litter from motorways raises additional health and safety considerations which can necessitate expensive and time-consuming measures to 1) assure the safety of those removing litter and 2) provide protection for other road users. It would be helpful to identify the safest and most cost-effective measures to address roadside litter.

Related to this issue is that, in contrast to other areas of land which are cleared of litter, roadside litter builds up again very quickly. After less than a week, the litter problem is evident once again. The health and safety issues considered above coupled with the difficulties in maintaining roadside cleanliness demonstrate that routine cleaning alone is insufficient to address highway litter.

Relevance

A suitable legal framework under the Environmental Protection Act 1990 exists to tackle highway litter. Highways England has further responsibilities of road maintenance under the Highways Act 1980 which means that comprehensive legal frameworks exist to address litter and highways issues. Furthermore, considerable efforts to clear litter are undertaken by parish, district and borough councils and volunteers. However, litter builds up quickly and it is challenging to catch those who have dropped litter and to keep the roads clear for prolonged periods of time.

Under the Anti-Social Behaviour, Crime and Policing Act 2014, s154, the Home Secretary has the power to make Regulations whereby FPNs can be issued for dropping litter to owners of cars without the need to prove who dropped the litter. These Regulations are likely to improve enforcement of litter.

Coherence

District and borough councils and Highways England have responsibility for different roads. An anomaly appears to have arisen in the division of responsibility for cleaning and maintaining certain roads. At present, the responsibility for these tasks on certain roads is split between the district/borough councils and Highways England. Highways England and Transport for London have the responsibility to maintain certain trunk roads, while local authorities (i.e. district and borough councils) have the responsibility to clean these roads. There is a need for coordination between those responsible for undertaking the various tasks of road maintenance and litter removal/road cleaning.

Accessibility

Although it is clear that responsibility for clearing roads is split between Highways England and the district/borough councils, the distinction between maintaining and cleaning roads is unlikely to be clear to the public. It can, as considered above, also create unnecessary complexity in organising litter to be cleared from the roads.

Enforceability

Despite the fact that councils and Highways England have a duty to clear litter, practical difficulties (e.g. health and safety issues) mean that roads tend to be cleaned infrequently. At present, difficulties in enforcing the criminal law provisions on littering under the Environmental Protection Act 1990, s87 mean that existing law is not effective in its prevention of littering.

The Littering from Vehicles Outside London (Keepers: Civil Penalties) Regulation 2018 mirrors existing provisions which exist in relation to car owners in London. The use of the regulations may serve to improve enforcement of the law in future.

 

 
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