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Waverley Borough Council Committee System - Committee Document

Meeting of the Environment and Leisure Overview and Scrutiny Committee held on 21/06/2005
Clean Neighbourhoods and Environment Act 2005



Summary & Purpose
This report outlines the effects of the Clean Neighbourhoods and Environment Act 2005. The new provisions, together with their effects, duties and responsibilities for Waverley are described. Most of the provisions will come into effect following introduction of the necessary Regulations and Guidance. These are not expected before June 2006, and have to be brought into force by Government Orders.

Once they are effective, these additional powers will provide Waverley with opportunities to undertake additional environmentally-based enforcement activity. It is therefore recommended that proposals for a strategic approach to such future activity be drawn up by Officers for further consideration by the Executive. Also, that those proposals be considered by the Environment and Leisure Overview and Scrutiny Committee in the first instance.

Quality of Life Implications
Natural Resource Use
Pollution Prevention and Control
Biodiversity and Nature
Local Environment
Social Inclusion
Safe Communities
Local Economy
Natural
Resource Use
Pollution
Prevention and Control
Biodiversity
and Nature
Local
Environment
Social
Inclusion
Safe, Healthy
and Active
Communities
Local
Economy
Positive
Positive
Positive
Positive
Positive
Positive
Positive



Successful, thriving and prosperous communities are characterised by streets, parks, and open spaces that are clean, safe and attractive. They are areas that local people are proud of and where they want to spend their time. The enforceable provisions contained in the Clean Neighbourhoods and Environment Act will give additional powers to Waverley and other agencies to help achieve this. Appropriate enforcement of these provisions can be used to support the service-based activity and educational roles of the Council, with both the local environment and the community at large standing to be major beneficiaries.

E-Government implications:

Whilst there are no direct e-government implications associated with this report, systems are being developed to enable direct on-line reporting of environmental crime. Real-time communications between Waverley, its contractors and partner organisations are being improved. Covert surveillance methods (including CCTV detection of fly-tipping and electronic noise-monitoring) are deployed where appropriate.

Resource and legal implications:

The new legal provisions of the Clean Neighbourhoods and Environment Act 2005 are outlined in this report.

The Regulatory Impact Assessment of the Act, produced by Defra, points out that the majority of the measures provide local authorities with additional powers rather than duties, which they will only decide to use where there is net benefit to doing so in a local context.

According to Defra, of the two new duties applicable to Waverley, one (the stray dogs measure) is a transfer of costs from the police to local authorities, and will not come into effect until the transfer has been agreed. The second (statutory nuisances caused by insects and by light) extends existing duties to new areas of concern so although it is not possible to predict the level of complaints in this area, Defra maintains it should be possible for Councils to respond through existing structures.

Where there are costs to businesses, these will normally result from making them responsible for nuisance that they cause. Some of the measures transfer costs onto private individuals or organisations that have direct responsibility for property or land to which the powers relate. These costs would normally only apply where the individual had first not taken steps to minimise the problem.

The Regulatory Impact Assessment concludes that all of the benefits of the measures in the Act outweigh the costs associated and therefore all the clauses previously included in the Clean Neighbourhoods and Environment Bill, should be included in the Act, but with no additional funding to local authorities (other than the measure which relates to dogs, which has yet to be quantified).

Despite this now being the achieved legislative position, it is not felt possible for the extensive measures contained in the Act to be fully implemented in Waverley without the application of appropriate additional resources.

The full financial impact of the Act is difficult to predict in advance of the Regulations and Guidance. However, the published Explanatory Notes to the Act have been examined and these, together with other published information, will guide the production of a suggested subsequent report, which, it is also suggested should be considered by the Environment and Leisure Overview and Scrutiny Committee in the first instance, and then by The Executive.

Some opportunity is provided for in the Act to offset costs. This arises from the new powers to retain income from fixed penalty notices for expenditure on certain functions. In many instances, the level of fixed penalty can be determined within limits by enforcing authorities. Where a Council chooses not to set the level locally, the Act and subsequent Regulation may do so. Examples include 75 for dropping litter and 100 for ignoring a Street Litter Control Notice. In other instances the local authority does not have discretion about the level of fixed penalty; for example 500 for licensed premises ignoring a warning notice for exceeding the permitted noise level.

No additional provision has been made in the 2005/06 approved revenue budget for the implications of the Act. In the event that any additional costs do arise to Waverley during the current financial year as a result of the earlier than expected implementation of any provisions, Officers will look to meet them from the approved Environmental Cleaning, Animal Control, or Inspection & Preventative Measures budgets. The exception to this would be the provision relating to stray dogs referred to above and paragraph 19 of Annexe 1 to this report for which Defra have indicated that compensating funding would be transferred from the police to local authorities.

Any subsequent identified growth bids would be subject to the 2006/07 budget process.

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Background to The Act

1. In 2002, a review of the legislative framework for providing and maintaining a clean and safe local environment was carried out by Defra to accompany the cross-Government report “Living Places - Cleaner, Safer, Greener.” The review found that the powers, duties and guidance for dealing with problems associated with local environmental quality were not working as effectively as they should be, and produced options for delivering changes. These options were contained in “Living Places - Powers, Rights, Responsibilities.” launched at the Urban Summit on 31st October 2002. Some were introduced into legislation in Part 6 of the Anti-Social Behaviour Act 2003. However, the majority of the options were developed further and included in the Clean Neighbourhoods and Environment Act 2005, which received broad cross-party support and Royal Assent on 7th April 2005.

Main Provisions

2. The Act contains a range of provisions designed to improve the quality of the local environment. These include new powers to tackle problems of fly-tipping; litter; fly-posting; graffiti; statutory nuisance; nuisance vehicles; dogs and noise.

3. The main provisions are listed in Annexe 1 to this report. It is expected that most of these will be enacted and accompanied by detailed Regulations and Guidance. Defra has advised that these are unlikely to be produced before June 2006. However, a small number of measures came into force on 7th June. These measures are listed in Annexe 2 to this report.

Developing a Strategic Approach

4. It is suggested that Officers produce a further report in the manner described under the Resource and Legal Implications Section above. This should draw up options and associated costs for prevention activity, detection and enforcement, education and awareness-raising, information-sharing and joint working with partner organisations. Waverley Officers already meet regularly with representatives of the police, fire service, Surrey County Council and the Environment Agency as an Environment Task Group. The suggested report will therefore be produced in consultation with that group.

Conclusions

5. The Clean Neighbourhoods and Environment Act 2005 recently received Royal Assent, and contains many important additional provisions that will become enforceable by Waverley to assist it tackling environmental crime.

6. The majority of its provisions are unlikely to come into effect until mid-2006. Some will have legal, practical and financial implications, but taken together provide a strategic opportunity to protect and improve environmental quality in the Borough.

Recommendation

It is recommended that the Executive:

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Background Papers (DoE&L)

“Explanatory Notes to The Clean Neighbourhoods and Environment Act 2005.” HMSO

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CONTACT OFFICER:

Name: Martin Shorten Telephone: 01483 523434

E-mail: mshorten@waverley.gov.uk


Comms/Executive/2005-06/036


Annexe 1
Main Provisions of the Clean Neighbourhoods and Environment Act 2005.

Most of these provisions are due to be enacted following production of Regulations and Guidance, expected after June 2006. The exceptions to this are those provisions set out in Annexe 2, which will be effective from 7th June 2005.


Crime and Disorder

1. The Act will require local Crime and Disorder Reduction Partnerships to take anti-social behaviour affecting the local environment into account when developing crime and disorder reduction strategies.

2. There will be new powers to gate nuisance alleyways.

3. The Act makes greater use of fixed penalties as an alternative to prosecution, in most cases giving local authorities the power to set their own rates.

4. Parish and Town Councils, as “lower tier authorities” (in addition to Waverley as a “higher tier authority”) will have the power to issue fixed penalties for litter, graffiti, fly-posting and dog offences.


Nuisance and Abandoned Vehicles

5. There will be new powers to immediately remove and destroy abandoned vehicles, where they are in such a condition that they consider they aught to be destroyed.

6. Where vehicles appear to be abandoned, they can be removed and disposed of immediately where they display neither a registration plate nor a current licence disk.

7. Two new powers will be created to deal with nuisance parking: offering for sale two or more vehicles as part of a business, or repairing a vehicle on a road as part of a business.


Litter

8. An extension of the offence of dropping litter to all open-places, including private land to which the public are given access, and to rivers ponds and lakes.

9. There will be new powers, by way of Litter Clearance Notices, to require businesses, to clear litter from their land.

10. Street Litter Control Notices will be introduced to provide for local businesses, including mobile vendors to be made responsible for clearing-up the litter they generate.

11. Local authorities will be able to restrict the distribution of flyers, hand-outs and pamphlets that can end up as litter. Religious, political and charitable material will be exempted.

12. There is clarification that discarded cigarette ends and chewing/bubble gum are litter. These were already considered to be litter, with the purpose here being to provide clarity to practitioners.

Graffiti and Fly-posting

13. It will become possible to serve graffiti-removal and fly-poster-removal notices, and for the range of recipients to include statutory undertakers such as railway authorities.

14. There is clarification that all beneficiaries of fly-posting can face prosecution, and there will be powers for local authorities to recover the costs of removing illegal posters.

15. Stronger powers are provided (to County Council Trading Standards Officers) to control the sale of spray paints to children.

Waste

16. Measures to improve local authorities ability to deal with illegal dumping and fly-tipping include:

I. Removing the defence of acting under employer’s instructions. II. Increasing maximum penalties from 20,000 to 50,000 / 5 years imprisonment. Courts may also make vehicle forfeiture orders. III. Enabling local authorities and the Environment Agency to recover their investigation and clean-up costs. IV. Extension of powers to stop, search, and seize vehicles to the Environment Agency and Waste Collection Authorities (including Waverley), where controlled waste is being illegally transferred. V. Extending provisions requiring clear-up to landowners where there is no occupier. VI. Local authorities and the Environment Agency will have the power to issue fixed penalty notices (and, in the case of local authorities, to keep the receipts from such penalties). VII. To businesses that fail to produce waste transfer notes. VIII. To waste carriers that fail to produce their registration details or evidence they do not need to be registered. IX. For waste left out on the streets outside specified collection times. X. Extension of fixed penalty notices to offences relating to waste receptacles.

XI. Enable local authorities to recover the costs of dealing with shopping trolleys from their owners, irrespective of whether they come forward to claim them.

17. Reform of the recycling credits scheme to provide increased local flexibility. Disposal Authorities will not be legally obliged to make payments to Collection Authorities where the two authorities agree to alternative arrangements.

Dogs

18. Dog byelaws will be replaced by a new, simplified scheme of Dog Control Orders. These will enable local authorities and parish councils to deal with fouling by dogs, ban dogs from designated areas, require dogs to be kept on a lead and restrict the number of dogs that can be walked by one person.

19. Local authorities sole responsibility for stray dogs (currently shared with the police) will occur when the transfer of resources has been agreed.

Statutory Nuisance, Contaminated Land and Noise

20. Local authorities will have stronger powers to deal with burglar alarms by way of designating Alarm Notification Areas, and will be able to impose fixed penalty fines on licensed premises (at a pre determined level of 500) that ignore warnings to reduce excessive noise levels.

21. It will be possible to defer the service of Abatement Notices for noise nuisance to enable alternative solutions to be proposed. [At present, once a statutory noise nuisance has been detected, the Council is obliged to serve an Abatement Notice that can only be removed after successful appeal to a magistrates’ court within a specified period.]

22. Contaminated land appeals against Remediation Notices will transfer to the Secretary of State.

23. The statutory nuisance procedure will be extended to include nuisance from insects and light.


Comm/Executive/2005-06/036


Annexe 2

Provisions of the Clean Neighbourhoods and Environment Act 2005 Effective from 7th June 2005


Nuisance Vehicles

1. Selling / repairing vehicles on a road by businesses, and the liability of company directors for these offences.

Litter

2. Extension of the dropping litter offence to all open places, and the inclusion of cigarettes and gum in the definition of litter.

Fly-Posting

3. Change to statutory defence; enabling prosecution of those who commit the offence and/or those who stand to profit from the unlawful display of advertisements.

Fly-Tipping

4. Removal of defence of acting under employer’s instructions. 5. Maximum penalties on conviction for deposit raised to 50,000 / 5 years imprisonment.

Noise

6. Use of fixed penalty notices extended to statutory noise nuisance functions and intruder alarms.



Comms/Executive/2005-06/036