Written evidence submitted by Gary Peart [LIT 074]

Contents

1. Introduction

   1.1 The Focus of this Submission

2. Real World Example

   2.1 Quality of Litter Picking

   2.2 Eventual Resolution

3. Points to Consider

4. Are New Laws Needed?

5. Litter Abatement Orders

6.  Poor Management and Lack of Commitment from Councils to Address Litter

7. A Litter Regulator?

8. Enforcement

   8.1. Litter Law is a Job for the Police – Council Staff Will Just “get their heads kicked in”

   8.2 Frequency of Enforcement

   8.3 Non-Payment of Fines

9. Fly-Tipping

10. A Radical Option for Fixing the Litter Problem

1. Introduction

I am making this litter submission in personal capacity as I believe I can provide the Committee with a useful insight into real-world problems of litter and what could be done to address these problems. 

My interest in litter stems from the challenges I have faced with getting a resolution to litter in a playground that I have lived opposite for some 12 years.  Although the litter problem in the playground has now been mostly resolved (although issues remain) this playground was in the noughties plagued by litter issues.  Indeed, it was rarely free from litter and was typically at grade C according to the grading scale given in the DEFRA Code of Practice on Litter and Refuse[1].

Additionally, for more than ten years I have followed what might be called the litter scene and I have observed ideas put forward for solutions many of which I have to say that in my opinion are none starters, impractical or flawed.  I believe my observations on these ideas could be useful for the Committee.  I also have some views on why meaningful enforcement is not being undertaken.

1.1 The Focus of this Submission

I am conscious that the committee will be busy and will have to wade through much paperwork, so in the interests of keeping my submission as concise as possible, I have focused on what I see are the key problem areas with regards to addressing litter.  My submission mainly covers the following two terms of reference for submissions:

How effective are the actions of those responsible for managing waste in the local environment and what more should local councils, the Environment Agency, and Government funded bodies such as WRAP do?

And

Does the current statute, regulation and guidance set an effective framework to minimise litter and fly-tipping. What, if any, further changes are required?

As a result my submission focuses very much on the areas of enforcement and strategies for ensuring councils address litter and improve litter removal.   This does not mean that I do not consider other litter related initiatives such education, community litter-picks, or the work of organisations like Keep Britain Tidy to be unimportant or unnecessary.  Indeed I think it is both important and necessary that we take a holistic approach to the issue of litter and cover all angles.  I would ask that this is kept in mind when reading this submission.     

2. Real World Example

As I highlighted in the introduction I have lived opposite a playground for some 11 years, which for much of this time has been plagued by a very serious litter problem.  Indeed the playground was virtually never litter free and was generally at Grade C for cleanliness for most of the time.

The following is a real world example of littering to demonstrate the problem encountered in the playground.   It is entirely typical of the underlying problem driving the litter problems in the playground and in the Park in which it is situated.   Although one example it has been repeated many times both in the playground and park, and indeed I have seen it occur elsewhere.

One afternoon I was working from home and observed the following.  In the early afternoon park staff litter picked the playground to grade A standard.  About an hour later four youths came into the playground carrying shopping bags containing cans and bottles crisps etc. Over the course of only about 20 minutes they proceeded to drink and eat the contents of the bags and deposit the containers and the plastic bags over the playground.  Many if the items were not carelessly dropped but deliberately thrown onto the ground.  They placed nothing in a bin which is just outside the entrance to the playground.   After 20 minutes they left the playground and I counted the amount of litter in the playground which amounted to 12 pieces, or three for each person, resulting in the playground dropping to grade C.

Unfortunately, this event was not uncommon and it was very much a case of a small number of individuals dropping often substantial amounts of litter, while the vast majority of users disposed of their litter appropriately. 

This example highlights how challenging it can be to keep a location litter free as clearly a once a day or even twice a day cleaning routine cannot guarantee maintaining a litter free environment, where litter is dropped to such a large extent over such a narrow time window.

Of course the other issue is that it is not realistic to expect that these hardcore litter louts to simply come to the playground once a week to drop litter.  The reality is that they will be dropping litter every day of the week everywhere they go, so their contribution to litter will be vast.

In addition, to these day time incidents it was not unusual for groups of youths and adults to come into the playground/park late at night (after midnight) drinking which resulted in the considerable amounts of drink related litter. 

Key Point:  It is important to appreciate the litter is caused by only a very small minority of people; however, such people drop a huge amount per person basis. Targeting this small minority will hugely reduce the litter problem.

2.1 Quality of Litter Picking

Although the rate at which litter was dropped was a key problem, this was exacerbated by a failure to regularly litter pick.  The official litter picking routine for the playground and the park was supposed to be every weekday, but no litter picking at the weekend or on bank holidays.  In practice days were routinely missed and given the rate of littering this meant that the area was often significantly littered for days at a time.

Another issue was the extremely poor quality of litter picking.  For example, in the early to mid noughties it was not unusual for there still to be visible litter in the playground immediately after it had been litter picked, as the litter pickers ignored some items!

I had many heated exchanges with council parks officials about the standard of litter picking in both the playground and park.  However, it proved impossible to resolve the problem even after I got my local Councillor involved.  Indeed the local Councillor was totally ineffective at getting any improvement in the litter situation.   

Note: the problem of poor litter picking has largely been resolved - a couple of years ago the Council underwent a restructure due to austerity measures.  This resulted in a change of staff and management and since then the quality of litter picking has improved dramatically with only occasional issues.  However, it can hardly be considered acceptable that it requires a restructuring of a council to make basic improvements to what is a core council activity.

Key Point:  It is important to appreciate that the problems of litter are not (in contrast to what no doubt councils will claim), simply an issue of addressing the dropping of litter.  The failure of councils and duty bodies to deal with litter must also be considered.  Ultimately, strategies and legislation need to be put in place to ensure, and if necessary force councils and duty bodies to meet their legal obligations with regards to litter clearing.

2.2 Eventual Resolution

The problem with litter has diminished considerably, although it would be wrong to suggest it has been solved completely.  Partly, this is due to better litter picking, but the main reason why the litter has diminished is that over the past couple of years, the local Police have successfully addressed the issue of anti-social behaviour and groups of youths coming into the park/playground in the evening or at night to drink alcohol.   As these groups have been driven out of the area so the amount of litter has dropped dramatically.

It is worth noting that the local council (Macclesfield Borough Council and its successor Cheshire East Council) involvement in addressing the litter problem in the playground and park was zero.  Unfortunately, as described later I do not think my local council is in anyway unique in its failure to effectively deal with litter.  

Key Point:  Litter is associated with other forms of anti-social behaviour.  Addressing these both in terms of the behaviour of individuals and areas prone to anti-social behaviour will help address the problem of litter.

3. Points to Consider

I have actively followed the situation with litter since 2002 and I have come across many groups, and articles and suggestions solutions for litter.  I have to say that often I find the comments and solutions offered impractical, poorly thought out and sometimes it has to be a said a bit batty.

I would like to highlight what I consider the core improvements that need to be made if as a nation we are to fix the litter situation. 

4. Are New Laws Needed?

In many articles and news reports around litter it is not unusual to hear calls for new legislation around litter, as though this will be the panacea to the problem.  What always seems to be forgotten is that there is little point in having new laws if they are not enforced and given that the current laws are not enforced effectively, there is little reason to believe that new laws will be.  Indeed, new laws could compromise the campaign against litter if the laws are viewed as overzealous (c.f. Parking enforcement seen as nothing more than a cash cow), or running contrary to traditional British legal concepts of fairness.  

Although my view is that litter legislation is generally adequate for addressing the UK litter problem and issues are more about application, there are some areas where I think improvements can be made and these are outline below.

5. Litter Abatement Orders

One thing I looked at when investigating a solution for the playground litter was whether obtaining a litter abatement order might be an effective way of forcing the council to keep the area litter free.  However, it is clear that there is a fundamental flaw in the Litter Abatement Order legislation, in that it is designed to be applied in situations where litter is present but is not being removed.  Although it might be useful in situations where a duty body refuses to remove litter, in many situations where the problem relates to poor cleaning routines, or a failure to address littering, a Litter Abatement Order will be of absolutely no use.

An additional problem with Litter Abatement Order is that when a duty body becomes aware that one might be applied for, they can simply clean up the area in question in which case an order cannot be obtained (as  the order can only apply to litter present at a site).

The principle and operation of Litter abatement Orders need to be substantially reviewed to make them more effective.  The most useful redesign would be to make them forward looking, that is, allow an order to be granted to require a duty body to keep an area free of litter on a future basis.  This would force duty bodies to address poor cleaning routines and take positive action to prevent the deposition of litter.

Additionally, Litter Abatement Orders should be straight-forward to obtain and in terms of court process.  A simple model such as used by the small claims court process should be employed.   I do not think barristers are appropriate for either party and there use should be restricted (there is little need for complex legal arguments for serving a Litter abatement Orders - litter is either present or it is not).  In this respect situations such as that reported in the following case where a barrister was used are not appropriate: http://www.cleanhighways.co.uk/m40-j1-the-denham-roundabout-2012.

Key point:  The current provision for Litter Abatement Orders is of very limited practical use because in current form they are backward looking and can only address situations where litter is present, but has not been removed by the duty body.  Although this is a problem in some cases, my view is that in totality, this situation is rather rare and the main problem is duty bodies failing to keep area litter free on an ongoing basis.  

To be truly effective the legislation needs to be amended so that Litter Abatement Orders can be forward looking and able to address litter on an ongoing basis.  So for example, it needs to be possible to get an order which requires the organisation upon which the order is served, to maintain an area free of litter over a predetermined future period of time.

6.  Poor Management and Lack of Commitment from Councils to Address Litter

I do not believe that the UK litter problem can ever be fully resolved without addressing the fundamental problem of the failure of councils and other duty bodies to have appropriate cleaning routines and proactively address litter in problem areas.

To move on to another example widespread poor litter management on a greater scale than occurs in my hometown of Macclesfield, I am not far from Manchester where I work and litter is a major problem in this city, especially in some suburbs.  A cursory inspection of much of this litter indicates that it has been present for months if not years, given the way it has eroded and degraded.  Some areas have evolved into permanent “grot-spots” where the litter does not seem to be removed at all.

A particularly good example of an area where Manchester City Council fails to get any sort of grasp of the litter problem, is the Rusholme area of Manchester (which it would be worthwhile the Committee visiting to see the problem first-hand).  Although this area is routinely cleaned along the main street running through it (Wilmslow Road), the side streets are ignored, resulting in endemic litter.  The area does have quite a large number of litter bins; however, these are routinely overflowing as the emptying routine is clearly not sufficient. 

Rusholme is a very busy area so it is not unexpected that litter will present certain challenges as all areas suffer from incidental litter due to human activity.  But the problem in Rusholme goes far beyond a problem of incidental litter, instead, it is driven by Manchester City Council’s unwillingness to address litter issues, be they from poor cleaning routines, littering by members of the public, or dumping domestic or commercial waste inappropriately.  A situation that has been allowed to exist not just for years, but decades.

Fundamentally, unless measures are put in place that will address the poor or in some cases zero litter management by councils, it is difficult envisage how the UK litter problem can actually be resolved. 

Key Point:  For too many councils litter is a low or none priority issue, despite their protestations to the contrary.  The commonly observed scenario of historic litter and grot-spots where litter just isn't removed, clearly demonstrates a lack of commitment to litter clearance. Without addressing the poor performance of councils in dealing with litter, it is difficult to see how the UK litter problem can be resolved.

7. A Litter Regulator?

Given the sort of large scale failures to maintain areas litter free such as the situation in the Rusholme area of Manchester described, one idea to consider as a means of dealing failures of councils and duty bodies to address litter is whether a Litter Regulator might be an option.

There are obvious “Quango” concerns with such an approach, as the danger is that a Litter Regulator could be toothless and ineffective, if it suffers week leadership or is not appropriately resourced.  If a Litter Regulator was set up careful consideration would need to be given to who was appointed to the role as it could be politically charged.  For example litter picking costs money and for many councils improving litter picking result in money being diverted from Councillors “Pet Projects” so there is real potential for friction between councils and the regulator.  I see the model for a Litter Regulator to be something along the lines of the former Rail Regulator, Tom Winsor, who was widely regarded as someone who did not shy from confronting issues of poor performance.

Key point:  Consideration should be given to the establishment of a Litter Regulator to oversee litter clearing by councils and duty bodies. To be effective such a regulator will not only need a clear mandate and genuine commitment to a resolution of the UK litter problem, but also the necessary powers to issue improvement notices on councils and other organisations and the ability to apply penalties for non-compliance.

8. Enforcement

As I have already highlighted in my view it is unlikely that litter can be fully addressed without an enforcement dimension.  Unfortunately, when I have highlighted the need for some enforcement to council officials and even members of the public excuses abound for why litter law cannot be enforced.

A particularly common “excuse” is that there is no value in sending officers to an area with the intention of targeting litter louts as there may not be any there, in which case resource has been wasted.  On the face of it this seems to be a reasonable excuse; however, the same logic applies to issuing parking tickets.  For example, there is no guarantee that if a Parking Warden visits a particular street that illegally parked cars will be present.  But we do not hear about councils claiming that Parking Warden’s patrolling the street is a waste of resource!

What such excuses are really about is a culture of failure in public bodies and a lack of management and ultimately political will to address litter.  It is simply not the case that enforcement is not possible or too difficult.  The challenges are no different from enforcing any other piece of legislation.

Key Point:  We need to be very cautious about accepting justifications from public authorities for failing to enforce litter law.  The legislation is available to enforce the law is in place and the key problem with implementing is the lack of effective management and ultimately commitment to fix the problem by councils, Politician’s and public authorities.

8.1. Litter Law is a Job for the Police – Council Staff Will Just “get their heads kicked in” 

As I have already highlighted I have followed the litter world for well over 10 years and every so often reports appear of a local council campaign of fining litter droppers.   Although I have never made a detailed study of the fine profile, one thing that is very apparent is that the fines handed out are almost exclusively (> 80%) handed to smokers dropping cigarette butts.  Reports of individuals being fined for dropping major litter such as cans and bottles in the real world example I describe above, are very rare and I think it is worth considering why this should be the case.

In addressing this question one thing we should remember is that dropping litter is a criminal offence and the people who drop it are criminals.  From my experience of watching litter being dropped the sort of people who are doing the dropping are often the sort of people who will become aggressive and potentially violent if challenged.   

Council employees such as street wardens do not have the training to deal with such situations and consequently they have to avoid such situations.  The best way of doing this is obviously to target the lower end of the littering such the dropping of cigarette butts.  However, although this is an important aspect to address, it is of low value in terms of addressing litter, because it means hardcore littering is inevitably being ignored (I think we are all aware that this scenario is a common problem in many enforcement arenas, for example the Police are well known for prioritising soft targets).

Key Point:  Enforcement of litter law is a job for the Police because council officials do not have the required skills, powers or training and cannot consequently deal with aggressive individuals or potentially violent situations.

8.2 Frequency of Enforcement

Another observation about when litter law is enforced is that such enforcement action is often only done on an ad hoc basis, usually as part of some short term political initiative.  Unfortunately, short term initiatives seem very common in councils across a spectrum of activities and according to what I have been told by contacts who work in the public sector field, they are often linked to a specific one off financial budget.  Once the budget is gone the activity ceases, which is clearly not desirable if a sustained solution is required.  Therefore, consideration needs to be given to how continuous enforcement can be achieved.

Key Point:  Enforcement of litter law cannot be about one off initiatives or clampdowns driven by the availability of a financial resource.   It has to be done on a continuous round the year basis if it is to be effective. 

8.3 Non-Payment of Fines

Taking enforcement action against litter louts is to be welcomed but it must not be forgotten that non-payment of fix penalty notices (the most likely form of sanction against litterers) in particular, and also court issued fines is endemic.   Unless this issue is tackled, then addressing littering by increasing enforcement will not achieve its maximum potential.   This is especially true because the reality is that a significant subset of offenders will be from more criminally minded sections of society, who will be streetwise to court and other processes and the ways to evade sanction.   

Key Point:  Non-payment of fines, particularly the sort of fixed penalty fines issued for littering has become routine.  Unless the issue of non-payment of fines is also addressed, the effectiveness enforcement of litter law by fines will be compromised.

9. Fly-Tipping

The committee is also covering fly-tipping, although in my view this is a separate issue with separate causes and solutions from littering.  For example, whereas, littering is about individuals being antisocial, dysfunctional or careless, it does not have a financial dimension.  That is an individual does not have to pay to dispose of their litter.  In contrast councils now routinely charge for what were once “free” services such as collecting bulky items from domestic properties.  This obviously presents problems for people on low incomes, or who have no means of taking items to a local recycling centre. 

Some councils effectively put limits on the amount of domestic waste that household can dispose of either by only providing households with a set number of disposal sacks per year, restricting bin size or  by removing weekly bin collections.  This all impacts on households that have a number of residents, or generate significant one off amounts of waste (rubbish clear out etc.).  Some areas only have communal bins (a skip located at the end of a street or in an alleyway) and the often rubbish can only be deposited through a narrow orifice.  Consequently, larger items of rubbish cannot be disposed of and it is not unusual to find these dumped in the vicinity of the bins.

The situation with commercial fly-tipping is also driven by costs which have been rising significantly due to the charges that are placed on the disposal of commercial waste (the Landfill tax).  Given the costs it is easy to see why some businesses dump commercial waste, as it may be difficult for the business to incur the high costs and be financially viable, especially for those businesses operating at the bottom end of the economy. 

(As an aside I work in the chemical industry and it is worth noting that waste disposal costs are considerable and can be a very significant economically.  For example the cost of waste disposal, particularly hazardous waste, and may be the dictating factor in whether a particular manufacturing process is economically viable).

As a means of addressing fly-tipping enforcement is clearly an important route; however, I would suggest that other measures should include requiring councils to collect bulky items from domestic premises for free.  Additionally, the obligations on councils for domestic refuse collection should be reviewed to ensure that they are appropriate and do not encourage fly tipping.

One difficulty with respect to waste which may be insurmountable is that waste disposal and its costs are primarily driven by European Union “Green” legislation, not by the actual costs of waste disposal.  Unfortunately, these costs are likely to continue increasing and as they are an underlying cause, fly tipping likely to increase even in the face of increased enforcement.     

Given that fly tipping is likely to be an ongoing problem, it is important that councils are required to quickly remove fly tipped waste from public and private land, as there is an obvious risk that fly tipped waste will generate even more. 

Key Point:  Even in the face of increased enforcement the problem of domestic fly tipping is unlikely to be resolved unless one of the underlying causes is addressed, which is councils charging for collection of large domestic items.  Such services should be free as waste disposal is core job for any council.  Similarly, for commercial waste fly-tipping it is difficult to see how the problem can be resolved without reducing the excessive charges that are levied on the disposal of commercial waste (mainly as a result of EU legislation) which is routinely way in excess of the actual cost of disposal. 

10. A Radical Option for Fixing the Litter Problem

I do have one idea for a way of resolving the problem of litter.  It may be a rather too radical to be accepted and there will no doubt be objections from affected parties, but it is worth thinking about. 

Increasingly it is the case that citizens have to take on responsibility from the state for ensuring that certain laws are enforced and if they fail to do so they open themselves up to criminal/civil liability.  For example, a landlord/landlady of public house is legally responsible for ensuring that other people, his/her customers, do not smoke inside while an employer is legally responsible for ensuring that a person in their employment is permitted to work in the UK (even when the person has official Government documentation such as a National Insurance number).

A more recent proposal is that landlords should be legally responsible for ensuring that tenants have the right to reside in the United Kingdom, again with legal liability if tenants are found to be in the country illegally (despite the argument  that it is a state responsibility to ensure that individuals do not enter the country illegally). 

In these scenarios legal responsibility for an offence has passed to another individual or individuals who have no actual involvement in the offence committed.   This third person liability represents a radical departure from the traditional model of English law where liability for an offence rests with the offender.

If it is deemed acceptable that ordinary citizens can be held liable for the actions of others I do not see any reason why this concept cannot be applied to those in a position of power.  I therefore propose that legal responsibility for ensuring an area is litter free is devolved down to and becomes the legal responsibility of the local Councillor for the area.  Under this proposal it would be an offence for a local Councillor to allow litter to accumulate (i.e. not litter picked) or be deposited (i.e. routinely dropped in an area).  There would be defences so for example if a particular area was subject to excessive litter, but the local Councillor could demonstrate that there was an appropriate litter picking or enforcement response, then the liability could be discharged.

I know a number of persons who are or have been local Councillors so I am aware of some of the problems that Councillors face in making things happen.   One relevant and very valid objection is that Councillors have in practice, very little power or clout, as in many councils power is concentrated amongst senior Councillors, the ruling party or a cabinet that effectively makes decisions and runs the council.

Thus, at the moment an individual local Councillor is unlikely to have the actual power to resolve a litter problem.  This would need to be resolved if the policy outlined above was to be feasible. Possible ways to address this is issue would be to give individual Councillors legal powers to direct local services to act on a litter problem.  This could present challenges for street cleansing departments if the more requests come in for cleaning than they have the resource to complete.  To help mitigate such issues another suggestion would be for Councillors to have direct access to the resource of offenders doing community service, whereby they could requisition offender resource from the Probation Service to clear litter.

October 2014