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Waste Enforcement (Fixed Penalty Receipts) (Amendment) (England and Wales) Regulations 2023

Volume 836: debated on Tuesday 5 March 2024

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Waste Enforcement (Fixed Penalty Receipts) (Amendment) (England and Wales) Regulations 2023.

Relevant document: 13th Report from the Secondary Legislation Scrutiny Committee

My Lords, these regulations were laid before this House on 10 January.

Litter and fly-tipping harm the environment and blight local communities. In a recent survey, 61% of the public thought that litter and dog fouling were a problem in their area, and 49% thought that fly-tipping was a problem. Street cleansing, including clearing up litter and fly-tipping, cost councils in England £822 million in 2022-23. There is clearly a need for more action to deter people from committing these offences, and to ensure that those who cause these problems face the consequences.

Councils already have a range of powers, including issuing fixed-penalty notices to those who litter, fly-tip or pass their household waste to someone without the proper licence. But we know that some councils are not using these powers, even where they have significant fly-tipping problems. In his anti-social behaviour action plan, the Prime Minster made it clear that councils should take a tougher approach to enforcement and make greater use of these fixed penalties. The Government have already taken steps to help councils do just that, including publishing new league tables providing transparency on how councils are using their enforcement powers for fly-tipping. Furthermore, the maximum fixed penalty councils can issue has been increased from £400 to £1,000 for fly-tipping, from £150 to £500 for littering, and from £400 to £600 for householders using an unlicensed waste carrier.

Income from these fines is retained by councils and currently ring-fenced for various functions related to waste management, including sweeping, emptying bins and household waste collection. We know that in a minority of councils, fixed-penalty receipts are absorbed into general council budgets or are spent on other neighbourhood functions. The Government believe that revenue received through payment of litter and fly-tipping penalties should be reinvested in expanding or improving councils’ enforcement functions and cleaning up the consequences of this anti-social behaviour. The instrument will ensure this by amending the qualifying functions on which councils can spend income from fixed-penalty notices issued for littering, fly-tipping and breaching the household waste duty of care, to enforcement and clean-up only.

By improving their enforcement capabilities, councils should be able to catch more perpetrators and deter others from offending, which should lead to cleaner streets, parks and the wider countryside. Enforcement functions could include employing more officers, investing in CCTV and signage and improving the use of data. Clean-up functions can include collecting and disposing of litter and fly-tipping, and restoring land which has been harmed. The instrument also retains the Secretary of State’s ability to make provisions by legislation in future on how local authorities in England use their fixed-penalty receipts.

Although this new ring-fence will apply to councils in England only, the instrument does include consequential amendments relevant to Wales to ensure that no changes are made to how local authorities in Wales can spend fixed-penalty receipts.

The instrument also makes consequential amendments to the Local Government (Structural Changes) (Further Transitional Arrangements and Staffing) Regulations 2009 to ensure that arrangements pertaining to the merging of authorities in England are not affected. Consequential amendments are also made to the Littering From Vehicles Outside London (Keepers: Civil Penalties) Regulations 2018, meaning that no changes are made to how authorities can spend income from these civil penalties.

In conclusion, this instrument will ensure that all councils in England reinvest the money they make from those fines into expanding or improving their enforcement functions and cleaning up the consequences of this anti-social behaviour. This should help deter people from harming our public space and make it more likely that those who do so face the consequences. I hope noble Lords will support these measures and their objectives. I commend these regulations to the Committee.

My Lords, I congratulate my noble friend on bringing forward these regulations and, in particular, on ring-fencing the money raised through the fixed-penalty receipts. I will raise one issue with him. If I have understood it correctly, this still applies only to public land. If so, this is a missed opportunity. In incidents of fly-tipping on private land, as I am sure my noble friend may be all too aware from his home estate, we are increasingly seeing an element of criminality, with people taking construction waste and literally dumping it on private land.

I worked with the Environment Agency when I was an MP and a shadow Minister in the other place. It has a very good mechanism of cameras in strategic places—I know it does not always want it publicised—which can catch the perpetrators of this crime to very good effect. That makes it much easier for it to bring them to book. My concern is that there was a very powerful response from the NFU, among others, and I am sure that the CLA and the TFA would have responded in the same vein. In its response to the original consultation, which is the basis of these regulations, the NFU asked for

“greater consistency across how local authorities, the Environment Agency and the police engage with private land managers who are victims of fly-tipping. We believe it should not be the sole responsibility of the land managers to deal with this crime, when it is a community-wide issue”.

I would like to understand why, if that was in the consultation, the department chose not to apply the regulations or ASBOs to private land and what the basis was for that. The NFU concluded that

“it is imperative that these proposals are not limited to fly-tipping and littering incidents solely on public land”.

I am sure that my noble friend and others in the Committee will have seen the graphic images on television of people now taking matters into their own hands because the Environment Agency and the police do not always turn up. There was a very good example of how these criminals can be apprehended—although there are dangers attached to this—when four vehicles hemmed in one van that was dumping on to private land all the materials to which I have referred.

I accept that there is an inevitable cost to local authorities and the Environment Agency in finding the perpetrators and, for public land, removing this material, but we are missing the fact that most fly-tipping is increasingly on private land. I would like to understand why it was excluded from this. If we are to go down the path of people individually trying to apprehend perpetrators on private land when they are in the middle of a crime, that will bring inherent dangers and I am sure the Government do not wish to encourage it. In the instance to which I referred—I cannot remember which part of the country it was—they apprehended the perpetrator and he was brought to book. The police attended and criminal charges followed.

I applaud everything that the Government are doing to make these regulations, firm up government policy and make sure that the receipts are ring-fenced, but the weakness is that most fly-tipping is on private land and we seem to have left that out.

My Lords, I thank the Minister for setting out the details of this SI on the fees received from fixed-penalty receipts for fly-tipping. I declare my interest as a vice-president of the LGA.

Fly-tipping is a scourge on our environment. During the passage of the Agriculture Bill there were several debates on the effect of fly-tipping on the farming community. Fly-tippers find it particularly easy to dump their spoils on droves, bridleways and open countryside, leaving the farmer to clean up the mess, often at considerable expense. The law is of no particular help to them. Local authorities issue fixed-penalty notices for littering and fly-tipping where they know who the culprit is, but this is often very difficult to ascertain. They are also able to issue notices for breaching the household waste duty of care. In this case it should be slightly easier to discover who the culprit is, but I wonder how often this power is used. Can the Minister say how many fixed-penalty notices were issued last year for breaching the household waste duty of care?

This SI is yet another example of central government adding to the burdens of local government. Subsection (5) of new Section 73ZA inserted by Regulation 2 of the SI is a good example of this:

“A waste collection authority must supply the Secretary of State with such information relating to its use of its fixed penalty receipts as the Secretary of State may require”.

Subsection (6) adds:

“The Secretary of State may by regulations make provision … about what a waste collection authority must do with its fixed penalty receipts pending the use of those receipts for the purposes referred to in subsection (2) or (3)”.

Subsection (7) of new Section 95A inserted by Regulation 3 inserts:

“The Secretary of State may by regulations make provision … about what an authority must do with its fixed penalty receipts pending the use of those receipts for the purposes referred to in subsection (3) or (4)”

Subsection (8) states:

“The provision that may be made under subsection (7)(c) includes (in particular) provision for the payment of sums to a person (including the Secretary of State) other than the authority”.

It is clear that central government does not trust local government to conduct its waste-collection functions effectively or to have the best interests of its communities at heart. As we have local elections coming up in part of the country in May, I wonder how many political leaflets will say, “If you vote in this election don’t be surprised if we are unable to carry out any of the usual services you expect of local councillors, as central government is continually putting extra duties and restrictions on the way we can operate”. This is nothing more than a tax to be collected by local authorities and paid to central government.

The Explanatory Memorandum tells us that the SI will

“add a new list of qualifying functions for local authorities in England”.

This should, allegedly, mean that more enforcement will take place, resulting in more fixed-penalty receipts, which would reduce incidents of fly-tipping and function as a deterrent. The logic appears fine, but it takes no account of “first find your fly-tipper”. I will share with the Committee an example of the way in which illegal fly-tippers operate, although I am sure everyone is aware of this. Last autumn, as I went to the GP surgery for my Covid booster, I had to negotiate a huge pile of what looked like cedar tree prunings in the middle of a junction in the road. This was at 9 am in the morning. By the time I came back 40 minutes later, council employees were there with a truck clearing the mess away, and I stopped to speak to them. They confirmed it was likely to be fly-tipping by an operator who had persuaded a householder that they were a legitimate contractor who could do some work for them but who was, in fact, an operator without a licence. There was, of course, nothing on the pile of tree branches to indicate who the culprit was.

I am afraid that restricting what local authorities can spend their fixed-penalty revenue on is not going to prevent fly-tipping. A wholesale campaign to alert the public to the fact that everyone who removes waste from a property or business must have a licence to do so, and that they should ask to see it before parting with money, is really the only way to reduce fly-tipping.

I note from paragraph 6.8 of the Explanatory Memorandum that this SI

“makes amendments to the Littering From Vehicles Outside London (Keepers: Civil Penalties) Regulations 2018”,

to which the Minister has referred,

“to ensure no changes are made to how authorities can spend income from these civil penalties”.

Can the Minister explain why there is this differentiation between fixed-penalty fees for fly-tipping and those for littering from vehicles? Often, owners of private vehicles who drive to a quiet spot, empty out their rubbish by the roadside and then drive away quickly cause as much distress as large-scale fly-tippers.

I regret that I have so many questions to ask and comments to make on what I am sure the Minister feels is a routine SI. Paragraph 7.4 of the EM indicates that, before this SI, fixed-penalty receipts could be spent on

“‘waste on land’ functions … or recycling infrastructure”.

Paragraph 7.5 then states that local authorities should be using these fixed-penalty revenue receipts for reinvestment in expanding “enforcement functions” and preventive measures, as well as employing officers and

“cleaning up the consequences of this type of offending”.

However, paragraph 7.6 states what the SI will do now. Along with restrictions on what this revenue can be spent on:

“Enforcement data collection, analysis and publication costs will also be in scope of the revised qualifying functions, along with purchasing and maintaining equipment such as cameras and signage, and other investigation and enforcement costs”.

During the passage of the Agriculture Bill, I tried hard to persuade the Government that tackling on-farm fly-tipping would be assisted by the use of CCTV, but to no avail. Can the Minister say whether local authorities will now assist farmers by installing CCTV at fly-tipping hotspots alongside popular rural spots? The noble Baroness, Lady McIntosh of Pickering, referred to this. Consultation has taken place and there is a lot of detail on the views expressed in the 16 responses received; there were also round-table discussions. Although a lot of information is contained in paragraph 10 of the EM, the date the consultation took place is not given. Can the Minister provide the date?

Paragraph 12.2 of the EM states:

“There is no, or no significant, impact on the public sector”.

That is laughable. It is yet another example of government chipping away at local government powers and freedoms. The LGA is calling for the cap on FPN to be removed. This would help local authorities determine their own fines and get the funding they need to investigate and prosecute fly-tippers.

The LGA also wants to work with government and the Sentencing Council to review court guidance. Currently, fines imposed by the courts do not cover local authority prosecution costs, and the fines are lower than those available through civil penalties. Magistrates’ courts’ sentencing guidelines for fly-tipping need to be more consistent and stringent in order to function as an effective deterrent.

I fear that I am unable to welcome this instrument. It is another example of how dictatorial the present Government have become, to the detriment of the public, communities and local government.

My Lords, I thank the Minister for his introduction of this statutory instrument. Waste enforcement is clearly an important issue, so I do not intend to make any throwaway comments. However, I have some questions for the Minister.

First, am I correct in thinking that this SI was laid, withdrawn and laid again? If so, was there a problem with it? Perhaps the Minister could clarify that I have not confused it with another SI.

In his introduction, the Minister referred to some of the key statistics in the Explanatory Memorandum. The figures from the Environmental Services Association’s research spell out the problem, and that it is increasing. The estimated annual national cost of fly-tipping was £209 million in 2015, and just three years later it had increased to £392 million. That is pretty appalling, so it is important that we have legislation that attempts to deal with the problem. Paragraph 7.2 of the Explanatory Memorandum gives the results of the recent survey, which again demonstrate that this is a really important and concerning topic to the public, of whom

“49% thought that fly-tipping was a problem”.

The noble Baroness, Lady McIntosh of Pickering, made some excellent points about fly-tipping on private land, and the noble Baroness, Lady Bakewell of Hardington Mandeville, talked about farmers. I know from where I live in Cumbria, as I am sure the Minister does, the huge costs associated with sorting out this problem on farms, particularly for small farmers, who simply do not have the ability to shift it. This is becoming a real problem, so I hope the Minister heard what the noble Baronesses said and that, if this is not the appropriate instrument to deal with it, something else can be done to address it going forward.

We have also heard about the involvement of local authorities. There is a commitment to limit the use of FPN proceeds to expanding or improving councils’ enforcement functions and cleaning up the consequences of this anti-social behaviour. As the Minister said, this was set out in the Prime Minister’s anti-social behaviour action plan last March. Can the Minister say why it has taken a year to bring this forward? It should be straightforward.

According to paragraphs 7.3, 7.4 and 7.5 of the Explanatory Memorandum, the revenue from FPNs is generally spent on street-cleaning activity rather than enforcement. My understanding is that this SI will mean that more revenue is spent on prevention, which is very welcome, but how do the Government see councils plugging the gaps in their general street-cleansing budgets through this instrument? The Minister talked about the amount councils can charge being increased through this SI, but there is still a cap on fixed-penalty notices for fly-tipping, littering and graffiti. Will the Government consider removing the cap and explore whether more stringent court fines for the worst offenders could help councils investigate and prosecute fly-tippers and deter repeat offenders? We know that some people make a living out of doing this.

The noble Baroness, Lady Bakewell, gave the Committee an extremely good example. In our own communities, we have all heard about instances of people saying, “We’ll take that away for you”, taking a fee and then dumping it on someone else’s land. These repeat offenders need sorting out. The noble Baroness also talked about CCTV. CCTV is now being used in some areas of the Lake District National Park, because people are dumping rubbish even in some of the most beautiful areas of our national parks.

The enforcement actions include employing officers who are authorised to issue the fines. Have the Government any figures on the average number of officers employed by each local authority in England, in order to get an idea of the number of people currently involved? It would be interesting to know whether these are full-time posts or part of the officers’ wider responsibilities; if the latter, how does the ring-fencing work? If they have different responsibilities and this is just one of them, how is the ring-fencing guaranteed?

Paragraph 10.1 of the Explanatory Memorandum refers to the consultation that took place with local authorities, and states that there were no responses from the West Midlands, which seems a bit odd. Why did the West Midlands not take part?

My Lords, I thank all three noble Baronesses for their contributions to this debate. I will start with fly-tipping on private land, which they all raised. The Government appreciate the difficulty that fly-tipping poses to landowners. As was pointed out, it is indeed deeply unfair and places a huge and unreasonable burden on private landowners. The Government are working with a wide range of stakeholders, such as the NFU, through the National Fly-Tipping Prevention Group, to promote and disseminate good practice, including how to prevent fly-tipping on private land.

Furthermore, in April last year, the National Police Chiefs’ Council established a new National Rural Crime Unit to support police forces nationally in responding to rural crime, including fly-tipping. Defra has awarded the National Rural Crime Unit a grant of £100,000 to fund a dedicated 12-month post, which started last month on the Northumberland-County Durham border, to explore the police’s role in tackling fly-tipping and how this can be optimised, with a particular focus on rural areas. Outputs from this will include training for police officers and working on intelligence-sharing across borders and between authorities.

Defra is also funding councils across the country to directly intervene at fly-tipping hotspots, including in rural areas, through the fly-tipping intervention grant scheme. For example, in Herefordshire, councils have seen a reduction in fly-tipping of over 90% across areas where CCTV—another issue raised by noble Baronesses —and signage have been installed, and they have developed stronger relationships with local farmers and landowners. If any noble Baroness has further specific questions on that issue, I will write to them.

I will write to my noble friend on that because I do not have that detail in front of me.

The noble Baroness, Lady Bakewell, stated quite a strong view about the Government passing this burden, if you like, on to local authorities. Interestingly, that was in fairly stark contrast to what my noble friend Lady McIntosh had previously said. That illustrates to me that there is no right or wrong way to do this; it is probably just a personal choice. Everybody will have a view about how it might be best done, but the Government’s view is that this is the best way to do it. I appreciate that that will not get much traction or be very well received, but it is the Government’s position, and that is where we will be heading.

The noble Baroness, Lady Bakewell, mentioned the powers of the Secretary of State. The Secretary of State already has these powers but due to the drafting required to retain the status quo, it has been necessary to restate them. This is linked to retaining the status quo in Wales. She also asked why there is a difference in the value of littering and fly-tipping. That is largely related to the volume associated with fly-tipping. It tends to be much greater and has the potential to cause much more damage to the land. Sorting out that problem usually takes a little more time and costs a little more money.

The noble Baroness also asked about the date of the draft consultation. I will write on that, because I do not have that detail with me.

The noble Baroness, Lady Hayman, asked whether the SI had been laid, withdrawn and then relaid. She is absolutely correct; this is the exactly the same thing, but there have been a number of changes since then. There were some typographical errors in the last one which this seeks to address. I think she also asked why it has taken so long. The best answer I can give is that it is due to pressing parliamentary business. Other questions related to the number of officers employed and why the West Midlands do not feature in the consultation. Again, I am afraid I cannot give any details on that but will write.

I hope I have answered your Lordships’ questions and that all noble Lords share my conviction of the need for this instrument. As I outlined, it will help move more income from fixed-penalty receipts to building enforcement capability and capacity within English councils, meaning that more offenders are brought to justice. At the same time, the increased deterrent effect should make people think twice before ruining the local environment for the rest of us. I commend these regulations to the Committee.

Motion agreed.