How to take out a Litter Abatement Order
If you're wondering if taking out a Litter Abatement Order is easy, well, it's complex like any other legal case but once you have read my posts and links as well as knowing how to properly gather evidence within a Code of Practise (see below) and apply for a Court summons with ease, it'll actually be pretty easy.
Step 1. In order to start a case about an environmental problem, take note as was said in one of my previous posts as to who owns the land (if you are not sure, check an official deed or Land Registry service to demonstrate evidence as to who exactly owns the land) and who deals with the problem.
Step 2. Once you have known who owns the land, start making a complaint to them by any means of writing via letter or e-Mail. DO NOT complain by telephone (unless you can record both of your outgoing and incoming phone calls). Make your evidence as well as the specific location clear by taking pictures or recording video footage (as long as you can smoothly snapshot some still pictures within the footage and print them off) along with a way to explain when you took or filmed the pictures (one example I done was to upload the pictures onto a site called fixmystreet.com in order to demonstrate the location along with the time I took the pictures. Bear in mind, though, that this site is only for complaints to your local Council so if the land where the litter problem is is not their duty to clean it, you must acknowledge this and make it clear within the brief complaint).
DO NOT mention ANY laws or Litter Abatement Orders or litter picking organisations. You're not going to be mentioning any possible legal action yet at thisstage.
Also, do not use any mean/rude/strong language or say what you really think of the 'duty body'.
Secondly, you must understand what kind of grade the litter problem you are reporting is. The lower the grade, the higher the accumulations of litter so those who have a duty to clear it away can only prioritise according to the following grades set:
- Grade A means there is no litter problem at all
- Grade B means there is almost no litter at all apart from a few small pieces.
- Grade C means there is a widespread distribution of litter & refuse with minor accumulations.
- Grade D means the land is heavily littered with significant accumulations.
You'll also need to take note of possible Health and Safety risks posed against the Litter Pickers (especially on a Canal, River, Road or Railway) which may mean you'll need to give the 'duty bodies' considerably more time to assess the risks involved.
Here is one example letter:
"[Name and address of complaints department at the duty body]
[date]
Dear Sir/Madam,
I am writing to complain about the amount of litter that has built up at................ [identify the location – be very specific]. This is a ......................... [character and intensity of use of land] (e.g. an embankment by a busy roadside with lots of through traffic and a high level of pedestrian activity). The area has become very defaced by litter and I am concerned that this area has not been cleaned for.............. [X days/weeks/months/years]. Attached are a few pictures that I have recently taken.
I am a ………………. [resident, visitor to the area, employee who works in the area, acting on behalf of a local action group, etc] and am very concerned about the appearance of the area. I would appreciate it if you could send a team to pick up the litter and let me know when this will be done.
I look forward to a speedy response, with details of the action you propose to take.
Yours faithfully,
[Your name, full address and contact details]"
Keep any and every evidence of the e-Mail/Letter.
Step 3. If you spot ANY changes to the area you have reported (e.g. some or a significant number of litter has been cleared away or has risen), immediately take a picture along with the date & time and log it.
Step 4. After the deadline (depending on the Grade as shown above) has expired, this is the moment you have been waiting for: start printing off at least 3 copies per page each of your evidence and send a Letter Before Action via Recorded/Tracked delivery fully explaining that you intend to take legal action and seek a Litter Abatement Order. Here is one sample letter:
"The Chief Executive (that also includes their full name)
[name and address of duty body]
[date]
Dear Sir/Madam,
I wrote to/emailed your organisation/local authority [delete as appropriate] on ........................ [date] asking for attention to be given to cleaning litter at ......................... [state specific location].
I have received no response/an inadequate response [delete as appropriate] OR No action has been taken on my complaint OR Following my complaint, the action taken has not resulted in all the litter being cleared away to the extent necessary to comply with your duty under Section 89 of the Environmental Protection Act 1990.
Accordingly, I am aggrieved by the defacement by litter of this land and I am now giving you written notice as required by Section 91 (5) of the Environmental Protection Act 1990 of my intention to make a complaint to .................... [name of the relevant Magistrates' or Sheriff Court] for an order to require you to clean the land/highway.
The complaint will relate to your failure to keep ................... [identify piece of land] clear of litter as far as is practicably possible as required by Section 89 of the Act.
I hope that you will take the necessary action to meet your legal duties. Failing that, I shall go ahead and make an application for a summons.
Yours faithfully,
[Your name]
[Your address]"
Wait and see if there is any response from the authority/company. Also, for any area involving Health & Safety risks or perhaps might be hampered by vegetation, wait between 3 or 6 months to see if any action has been taken because in the majority of cases, the land is cleared before the time to apply for a Court Summons turns up. If there is ANY change occuring between these times, immediately take a picture to demonstrate this. Again, keep the letters/e-Mails along with a receipt as evidence for your case.
Step 5. If little or no action has been taken at all by the time the deadline(s) expire, take your evidence (including the Section 91(5) Notice letters) to the court in order to intiate proceedings. In England and Wales, you need to. In my experience in Scotland, you will need to need to download Form 1 in the Summary Application section:
Form 1
Form of initial writ
Rule 2.4(1)
SUMMARY APPLICATION UNDER (title & section of statute or statutory instrument) INITIAL WRIT SHERIFFDOM OF (insert name of sheriffdom) AT (insert place of sheriff court) [A.B.] (design and state any special capacity in which the pursuer is suing) Pursuer against [C.D.] (design and state any special capacity in which the defender is being sued) Defender The Pursuer craves the court (here state the specific decree, warrant or order sought) CONDESCENDENCE (State in numbered paragraphs the facts which form the ground of action) PLEAS-IN-LAW (State in numbered sentences)
Signed [A.B.], Pursuer or [X.Y.], solicitor for the Pursuer (state designation and business address)
Here is my example in the 3rd image below when I wanted to take out a Litter Abatement Order against Network Rail.
Here is one example if you are planning on taking action through a Magistrates Court:
"Name and Address of the local Magistrates’ Court:
Date:
Chief executive of duty body:
Duty body address:
Matter of complaint: That the complainant is aggrieved by the defacement by litter and refuse of ……………… [describe the land you are complaining about. Be as specific as possible.]
That the defendant has a duty to keep the said land clear of litter, under Section 89 (1)/the said highway clear of litter, under Section 89 (2) [delete as appropriate] of the Environmental Protection Act 1990;
And the complainant (having duly notified the Defendant) now therefore makes application to the Court to make a Litter Abatement Order under section 91 (6) of the Environmental Protection Act 1990 requiring the defendant to clear the litter away/clean the said highway [delete as appropriate].
The complaint of: [your name]
Address: [your address]
Telephone number: [your number]
who (upon oath) states that the defendant was responsible for the matter of complaint of which particulars are given above taken (and sworn) before me
[Justice's Clerk]"
You MUST NOT make any spelling, grammar or punctuation mistakes in the process.
You will need 3 copies of your evidence; 2 of which will be given to the court and the other you will need to keep. There is one obstacle, though: the staff in the Court Office might not have heard of a Litter Abatement Order at all!
To solve this as much as possible, it is best to phone up or e-Mail the Court to arrange an appointment in advance so that they can have as much time to research the action you intend to take as possible. You could get a solicitor to come along with you but bear in mind you will have to incur extra costs. If you are asked to explain why you are there and what the law is, do this in a calm, controlled manner (persistance is the key) and try not to be surprised if the staff member(s) ask you to wait while they go away to see their Manager/Supervisor/Clerk for advice.
Once the staff are satisfied you have a valid case, you will have to pay a fee which can cost between £50 to £200. This can also depend if you are on certain benefits so do check to see if you can get a discount or be exempt from paying fees. Now, I know that in England and Wales you don't have to pay extra to approve of sending the summons to the defendant but in Scotland, you do; once you recieve a copy of the summons, you'll given a deadline of 21 days to process it, along with your other of the 2 copies of the evidence, by means of using a Sheriff Court Officer (which can cost up to £200 in fees) or a Solicitor (which can be more expensive) to deliver the summons to the defendant (even if they live in England and Wales). The fees can be paid via credit/debit card or cheque.
Step 6. After you have submitted your complaint, take a further set of photographs or video footage; these along with others taken shortly before submitting your complaint will establish that the land in question was defaced by litter at the time the complaint was made to the Court.
This is important because if the land gets cleared after you have submitted your evidence, you will need to write to the court and the duty body saying that because the litter has been cleared there is no longer any need to issue a Litter Abatement Order, but you will apply for your costs under section 91(12) of the Environmental Protection Act 1990. This says that if the court is satisfied that, at the time the complaint was made, the land in question was defaced by litter it must award costs to the individual/group who made the complaint.
If the litter isn’t cleared and you do not hear anything for a while check to make sure that your cheque has been cashed and ring the court to chase if necessary.
Step 7. The Hearing
I don't know what to expect in a Sheriff Court other than the main Sheriff and a few others standing there (because I decided not to go ahead with my case against Network Rail) but I do know that in England and Wales, the hearing will be in front of 3 Magistrates and a Clerk. The duty body will probably be represented by a solictor or barrister.
If the land has already been cleared and you are only seeking your costs then make sure you have details of all your costs associated with pursuing the Litter Abatement Order, including the court fee(s), travel, photographs and printing. If the Magistrates’ Court is satisfied that when the complaint was made, the land was defaced with litter and there were reasonable grounds for bringing the complaint, the court shall also order the duty body to pay expenses.
If the court is satisfied that the land is defaced by litter (if it is still not cleared) it will make a Litter Abatement Order requiring the duty body (now the defendant) to clear the litter within a specified time. If the duty body then fails to comply with the order to clear the litter they can be fined up to £2,500 and £125 for each day thereafter that the offence continues.
However, like in any other Court case, the duty body has the right to prove they fulfilled their duty in keeping the land clear of litter and could defend their position. it's unlikely if you have a well prepared case, but if this does happen another hearing date may be set to give time for both parties to prepare their cases.
If there is a contested hearing, as with any legal proceedings, you will need to be prepared for the process being longer and more complicated than with a straightforward admission of guilt. You should assume that a duty body opposing a complaint will have access to professional legal advice to argue their case. You should assess the further costs and if necessary seek professional legal advice.
A contested hearing for a Litter Abatement Order has never happened before so I cannot advise beyond this step. If the hearing isn’t contested the land will be cleaned by the guilty duty body.
The whole process could cost you up to £10000 if you are more than willing to prepare for this risk along with your well prepared evidence. Ok you might not be able to afford this but others have succeeded in doing so; Peter Silverman of Clean Highways (www.cleanhighways.co.uk) managed to successfully challenge the Highways Agency (now called Highways England) about Litter on parts of the M40 Motorway and the end result was that it got cleaned up.
BONUS TIP: If you are taking pictures of the litter in areas where you might not necessarily be allowed to do so, such as train stations, airports, bus stations and motorways, there is a chance that someone will question why you are taking pictures in the vicinity. It's never ever happened to me before but if it does, calmly explain that you taking pictures of the litter because you are planning to take out a Litter Abatement Order in the future against ___________ and that under Section 89 of the Environmental Protection Act, _______________ has a legal duty as a 'Duty Body' to keep their land as clear of litter and refuse as far as is practically possible.
With thanks to: Peter Silverman, The Campaign to Protect Rural England, Litter Action, scotcourts.gov.uk and the Scottish Government.
