The Clean Neighbourhoods and Environment Act 2005 received Royal Assent on 7 April 2005. It includes new measures for providing and maintaining clean and safe local environments. It covers a number of areas and introduces a number of measures to deal with:

• crime and disorder;
• abandoned and nuisance vehicles;
• waste and fly-tipping;
• litter and graffiti;
• dogs;
• noise;
• nuisance from artificial lighting; and
• insects.

The measures apply to England and Wales and are part of the government’s wider anti-social behaviour agenda, reflecting its desire to take a tough stance on environmental crime. Whilst some changes may seem far more substantial than others, the mixed bag of measures is unified by this agenda.

In some cases the Act extends existing legislation and in some cases introduces new measures and new offences. Some of the powers in the Act were introduced in June and October 2005, and the remainder will be subject to new regulations that will be enacted in April 2006.

Key areas of the Act

Crime and disorder

The Act amends the law relating to Crime and Disorder Reduction Partnerships, and requires them to take into account anti-social and other behaviour adversely affecting the local environment.

It also gives the local authority power to make ‘gating orders’. A gating order will enable local authorities to restrict the public right of way over minor highways that attract anti-social behaviour, eg alleyways in the evenings.

Vehicles

The second part of the Act introduces two new offences relating to nuisance car parking and amends the law relating to abandoned and illegally parked vehicles.

It will be an offence if at any time a person:

(a) leaves two or more motor vehicles parked within 500m of each other on a road or roads so that they are exposed or advertised for sale; or

(b) carries out works for the repair, maintenance, servicing, improvement or dismantling of a motor vehicle, or any accessory to a motor vehicle, on a road as a business.

These measures are aimed at businesses which have been previously difficult to control. For example, planning controls were often difficult to enforce due to problems identifying the relevant land to enforce against.

The measures should assist local authorities in dealing with nuisance parking and give them the ability to remove abandoned cars from streets immediately.

Litter and refuse

Part 3 of the Act provides for the statutory offence of litter-dropping to be extended, and provisions in the Act amend the powers and duties of local authorities in relation to litter. It will be an offence to drop litter anywhere, including private land and rivers, ponds and lakes. There will be a fixed penalty fine applicable and s88 of the Environmental Protection Act 1990 will be amended. The penalty payable will be either:

(a) the amount specified by a principal litter authority in relation to its area; or

(b) if no amount is specified, £75.

Local authorities will have new powers to issue ‘litter clearing notices’ requiring businesses and individuals to clear litter from their land. Note that the requirement is for it to be their land, not their litter. This is not therefore aimed at nuisance take-away establishments, but those parts of any property which seem to attract casual dumping of litter.

The Act confirms that cigarette butts and discarded chewing gum are litter. This is to give authorities greater confidence in pursuing action on such items. There will be an obvious impact on smoke-free business premises whose employees may gather outside for a cigarette – management of such premises may well become more important.

The Act also enables local authorities to restrict the distribution of flyers, handouts and pamphlets that can end up as litter.

Graffiti and other defacement

Part 4 of the Act extends the provisions that were introduced by the Anti-Social Behaviour Act 2003 so that local authorities can give penalty notices for graffiti and fly-posting. The Act also improves local authorities’ powers to tackle the sale of spray paints to children and strengthens the legislation to make it more difficult for beneficiaries of flyposting to avoid prosecution.

Waste

Part 5 of the Act relates to the registration of carriers of particular kinds of waste, and sets out provisions relating to fly-tipping and the powers of the local authority to collect and dispose of waste.

There is a provision dealing with ‘site waste management plans’. The Act provides that regulations may be made to require developers and contractors of construction and demolition projects to prepare site waste management plans. These plans must set out the arrangements for managing and disposing of waste created in the course of the project.

Land owners may also be required to remove fly-tipped waste where the waste has been illegally deposited. The land owner may be required to remove the waste if the occupier of the land cannot be found without the local authority incurring unreasonable expense.

The Act also states that offenders may be required to pay clean-up costs where a person has been convicted of illegally depositing waste on land. The court may order that the person pay the local authority and the Environment Agency’s investigation costs and pay any loss or damage suffered by the owner or occupier of the land as a result of that illegal deposit. These measures are aimed at making illegal dumping more costly by reflecting more closely the cost to society.

Dogs

Part 6 of the Act enables local authorities and parish community councils to create offences relating to the control of dogs known as ‘dog control orders’. Dog control orders will relate to the fouling of land by dogs and removal of dog faeces; the keeping of dogs on leads; exclusion of dogs from land; and the number of dogs which a person may take onto land. It also relieves the police of most of their statutory responsibility for stray animals.

Noise

This part of the Act gives local authorities new powers to deal with burglar alarms, impose fixed-penalty fines on licensed premises that ignore warnings about excessive noise levels, and gives greater power to the local authority to deal with noise and nuisance.

It should make it easier for local authorities to resolve complaints about noise prior to issuing an abatement notice.

Architecture and the built environment

Part 8 of the Act establishes the Commission for Architecture and the Built Environment on a statutory basis.

Miscellaneous

There are a number of miscellaneous provisions in the Act, for example:

(a) Local authorities will be able to recoup the costs of clearing and returning abandoned shopping trolleys to their owners.

(b) Artificial lighting and insects will be added to the list of matters that constitute statutory nuisance. Statutory nuisances can be the subject of enforcement by local authorities; similar powers can currently be excercised against such nuisances as noise, soot and smoke. The spillage of artificial lighting beyond the premises or anything which attracts insects will now also be subject to such enforcement. A number of premises that have not previously been thought to cause nuisance could therefore now find themselves under investigation.

(c) There will be increased penalties for illegally keeping, treating or depositing waste. On summary conviction the penalty is now imprisonment for a term not exceeding 12 months, or a fine to a maximum of £50,000, or both. On indictment, the penalty is now imprisonment for a term not exceeding five years, or an unlimited fine or both.

(d) The Act provides that appeals against Remediation Notices issued under Part II(a) of the Environmental Protection Act 1990 may be made to the Secretary of State rather than necessarily the Magistrates’ Court. This is part of the gradual process of stripping the Magistrates’ Court of is historical appeal functions. The reality will be that any appeal will now be held on the Secretary of State’s behalf by the Planning Inspectorate.

The government’s consultation paper

In October 2005 the government issued a consultation paper containing guidance to assist local authorities and others to understand and make use of the measures in the Act. In particular, the consultation paper included draft and interim guidance on nuisance parking offences, abandoned vehicles, litter and refuse, graffiti, waste, noise and statutory nuisance from insects and artificial light.

The guidance issued by the Secretary of State will influence how local authorities and other regulators interpret the new legislation. Indeed, regulators are required to take into account some parts of the draft guidance as if it were full statutory guidance until the final document is issued.

The consultation paper included draft regulations on fixed-penalty notices and Dog Control Orders.The consultation ended on 2 January 2006, and we understand that the responses to the consultation will be published at the end of March 2006, which will not allow much time to absorb any changes in emphasis before the proper commencement date of 6 April.

Conclusions

The Act addresses a mix of large-scale and very local (but nonetheless very important to those affected) issues. Whilst some of the measures, eg on abandoned vehicles and cigarette buts/chewing gum, are already in force, others – including litter clearance notices and statutory nuisances – are due in April. Landowners would be well advised to consider if any of the new provisions change the law on any existing problems. Where there have been previous complaints over light pollution, for instance, but it was concluded that nothing could be done, authorities may well want to reconsider under their new powers. The time between now and 6 April could be productively spent considering older disputes and checking for potential new complaints.  © Property Law Journal