Litter and Flytipping Legislation
A summary of the legislation and associated powers which can be used by certain organisations to manage litter and flytipping in various circumstances.
Note: This does not constitute legal advice, instead it provides a guide for duty holders. It is up to duty holders to identify the relevant legislation for their requirements and seek advice from their own solicitors if needed.
Section 33, Prohibition on unauthorised or harmful deposit, treatment or disposal etc. of waste (Scotland):
This section prohibits the deposit, treatment, keeping or disposal of controlled waste in or on land unless a permit authorising the deposit is in place. It’s an offence to carry out such activities, or to ‘knowingly cause or knowingly permit’ them. This section applies to household, industrial and commercial waste.
Where controlled waste is carried in and deposited from a vehicle, the person who controls the use of the vehicle will be treated as knowingly causing the waste deposit – regardless of whether or not they gave instructions for this to be done.
A person who commits an offence under this section could be imprisoned for up to six months, fined up to £40,000 or both.
Defences include:
- Took all reasonable precautions and all due diligence
- Done in an emergency to avoid danger to the public
Section 33A, Fixed Penalty Notices for contravention of section 33(1)(a) and (c): Scotland (inserted by section 55 of the Antisocial Behaviour etc. (Scotland) Act 2004):
This covers the issue of Fixed Penalty Notices for offences under section 33. Authorised local authority officers, SEPA, police officers and authorised officers of Loch Lomond and Trossachs National Park can issue a notice where they believe that a person has committed a relevant offence. Payment of a fixed penalty discharges any liability to conviction for the offence of flytipping. The fixed penalty under this section is payable to the local authority in whose area the offence was committed. The fixed penalty notice for flytipping is currently £200. The schedule is available on the legislation.gov website.
Section 55 Antisocial Behaviour etc. (Scotland) Act 2004
Section 34, Duty of care etc. as respects waste:
It is the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, to take reasonable measures applicable to them in that capacity:
- To prevent any contravention of section 33 by any other person
- To prevent the escape of the waste from their control or the control of any other person
- to ensure that waste is only transferred by an authorised person or a person for authorised transport purposes, and a written description of the waste is available to enable other persons to avoid a contravention of section 34.
The Waste (Scotland) Regulations 2012 amended Section 34 to implement several actions in the Scottish Government's Zero Waste Plan. Under these amendments holders of waste, including producers, have a duty to take reasonable steps to increase the quantity and quality of recyclable materials.
‘The Duty of Care: A Code of Practice’ explains how these duties apply to anyone who produces, keeps, imports or manages controlled waste in Scotland. The Code is made under section 34(7) of the Environmental Protection Act 1990 (as amended) and replaces all previous versions applicable in Scotland.
Householders also have obligations under the Code. They must:
- Ensure that any waste they produce is handled and stored safely, without causing harm to the environment and in accordance with the law
- Ensure that any household waste produced on their property (other than that which is collected by their local authority or their contractor) is only transferred to a SEPA registered carrier
Further guidance is available in Chapter 9 of the Code. Additionally, the duty of care applies to waste from a workshop on a household property, waste brought from another property and building waste from work undertaken on by a contractor.
Section 46, Receptacles for household waste:
Where a waste collection authority has a duty to arrange for the collection of household waste, the authority may require the occupier to place the waste for collection in a specified kind and number of receptacles. Separate receptacles, or receptacle compartments, may be needed for recyclable and non-recyclable waste.
The authority may make provision with respect to:
- Size, construction and maintenance of the receptacles
- The placing of the receptacles
- The items which may or may not be put into the receptacles and precautions to be taken where items are put into them
Occupiers have a 21 day right of appeal against any requirements imposed on them. A person who fails, without reasonable excuse, to comply with any requirements imposed by this section may be liable to a fine of up to £1,000.
Section 47, Receptacles for commercial or industrial waste:
A waste collection authority may, at the request of any person, supply receptacles for commercial or industrial waste which the person has requested the authority to collect. They may make a reasonable charge for any receptacle supplied.
If a waste collection authority believes that any commercial waste or industrial waste which, if not stored in an appropriate receptacle, could cause a nuisance or be detrimental to the amenities of the locality, the authority may require the occupier of the premises where the waste is stored to provide an appropriate receptacle or receptacles for the storage of the waste. The size and number required must be reasonable.
The waste collection authority may make provisions with respect to:
- Size, construction and maintenance of receptacles
- The placing of receptacles
- The substances or articles which may or may not be put into the receptacles
A person who fails, without reasonable excuse, to comply with any requirements imposed under this section may be liable to a fine of up to £1000. The occupier of the premises has 21 days to appeal against the requirements of a notice served to them.
Section 59, powers to require removal of waste unlawfully deposited:
If any controlled waste is unlawfully deposited on land in the area of a waste regulation authority or waste collection authority, the authority may serve a notice which requires the occupier to do either or both of the following:
- Remove the waste within a specific period not less than 21 days beginning with the service of the notice
- Take, within such a period, specific steps to eliminate or reduce the consequences of the deposit of the waste
The occupier can appeal to the sheriff court within 21 days. The court may quash the requirements if it is satisfied that:
- The appellant neither deposited, knowingly caused or knowingly permitted the deposit of the waste
- There is a material defect in the notice
If a person on whom a requirement has been imposed fails, without reasonable excuse, to comply with the requirement they may be liable to a fine of up to £5000, and to a further fine of an amount equal to one-tenth of level 5 on the standard scale for each day the failure continues after conviction.
Where a person on whom a requirement has been imposed fails to comply with the requirement, the authority may do what that person was required to do and recover from them any expenses they reasonably incur.
Section 79 (1) (e) Statutory nuisances and inspections therfor:
Enables local authorities to take action if an accumulation or deposit is considered to be prejudicial to health or a nuisance.
Section 87, the offence of leaving litter:
‘If any person throws down, drops or otherwise deposits in, into or from any place to which this section applies, and leaves, anything whatsoever in such circumstances as to cause, or to contribute to, or tend to lead to, the defacement by litter of any place to which this section applies, they shall, subject to subsection (2) below, be guilty of an offence.’
Subsection (2) – No offence is committed under this section if leaving the item was:
- Authorised by law;
- Done with the consent of the owner, occupier or other person or authority having control of the place where the item was deposited.
A person who is guilty of an offence under this section may be liable to a fine of up to £2,500.
In the above extract, litter is described as anything thrown down, etc. by any person.
Section 88, Fixed Penalty Notice for littering:
If an authorised officer of a litter authority or a police officer believes that a person has committed an offence under section 87, they may give that person a notice offering the opportunity to discharge any liability to conviction for that offence by payment of a fixed penalty.
Where a person is given notice under this section:
- No proceedings can be instituted for that offence until 14 days after the date of the notice
- If the fixed penalty is paid within the 14 day period, they shall not be convicted of the offence
The fixed penalty notice for littering is currently £80.
Powers for police officers to issue Fixed Penalty Notices for littering were introduced by the Antisocial Behaviour etc. (Scotland) Act 2004, section 56, which amends section 88.
If offenders don’t pay the Fixed Penalty Notice, they can be reported to the Procurator Fiscal for the section 87 offence. The schedule is available the gov.uk website.
Section 90, Litter Control Areas:
Lets local authorities designate land of a prescribed description as a Litter Control Area if they consider that litter or refuse on that land is detrimental to the amenity of the area and is likely to remain so.
This places a duty on each occupier of the land to ensure that it is kept clear of litter and refuse, so far as is practicable. The types of land which can be designated are defined by The Litter Control Areas Order 1991 (amended 1997) and include:
- Public car parks
- Shopping centres
- Business parks
- Industrial estates
- Cinemas and theatres
- Sports facilities
- Beaches and promenades
- Public open space under the control of certain public bodies
- Land used for markets
- Motorway service stations
- Roadside picnic areas
- Camping and caravan sites
Litter Control Areas are generally areas that are accessible to the public but privately owned. In Scotland full Council approval is not required to designate land as a Litter Control Area. Those who may be affected by the proposed designation must be given 21 days to make representations, which must be taken into account in deciding on the designation (section 90(6)). If the designation is made, the land becomes relevant land and the occupier is then required to clear the land and keep it free of litter in accordance with section 89 of the Act. Failure to do this may result in a summary application being made to the Sheriff by a citizen or local authority. The schedule can be found on the legislation.gov website.
Section 91, Summary Proceedings by persons aggrieved by litter (Litter Abatement Order):
Gives aggrieved citizens the power to make a summary application to the Sheriff. Before instituting proceedings under this section, they must give at least five days’ written notice of their intention to make the complaint, and the notice must specify the matter being complained about.
If the Sheriff is satisfied that the land is defaced by litter or refuse the court may make a litter abatement order requiring the person against whom the proceedings are taken to clear the litter or refuse within a specified time. If, without reasonable excuse, they fail to comply with a litter abatement order, they will be guilty of an offence and could be fined up to £2,500, they could be fined up to £2,500, further penalties may be imposed for each day on which the offence continues after the conviction.,
Section 92, Summary proceedings by litter authorities (Litter Abatement Notice):
Gives local authorities the power to serve a litter abatement notice if they are satisfied that the relevant land of a duty body is defaced by litter or refuse or that defacement by litter or refuse is likely to recur. The notice will specify the time within which the litter must be cleared and/or prohibit further littering. The notice will be served on the occupier of the land or, if there is no occupier, on the owner.
If the person on whom a litter abatement notice is served, without reasonable excuse, fails to comply with the notice, they could be fined up to £2,500, further penalties may be imposed for each day on which the offence continues after the conviction.
If a person on whom a litter abatement notice is served fails to comply with the requirements imposed by the notice, the authority may:
- Enter the land and clear the litter or refuse
- Recover the expenditure attributable to their having done so
This final point does not apply in relation to Crown land or relevant land of statutory undertakers.
Section 93 Street Litter Control Notices and 94 Street Litter: supplementary provisions:
A principal litter authority may, to prevent the accumulations of litter or refuse in and around any street or open land adjacent to any street, issue street litter control notices imposing requirements on occupiers of premises in relation to litter or refuse.
For premises prescribed under section 94 with a frontage on a street, the litter authority may serve a street litter control notice on the occupier, or on the owner of unoccupied premises, if they’re satisfied that:
There is recurrent defacement by litter or refuse of any land, being part of the street or open land adjacent to the street, which is near the premises
- The condition of any part of the premises which is open land near the frontage is and, if no notice is served, is likely to continue to be detrimental to the amenities of the locality by reason of the presence of litter or refuse
- There is produced, as a result of the activities carried out on the premises, quantities of litter or refuse of such nature and in such amounts as are likely to cause the defacement of any part of the street, which is in the vicinity of the premises
Notices must specify appropriate and reasonable requirements in relation to the area of open land which adjoins the vicinity of the frontage of the premises on the street – the ‘specified area’. Notices can include clearing litter and providing or emptying litter bins. The owner cannot be required to clear litter or refuse from any carriageway unless it is closed to traffic.
Anyone can appeal against a notice to the Sheriff within 21 days of the notice being served. If the litter authority believes that a person has failed or is failing to comply with any requirement imposed by a notice, they can apply to the Sheriff for an order requiring the person to comply with the requirement within such time as specified in the order. If a person fails to comply with an order, without reasonable excuse, they could be fined up to £2,500.
Types of land on which a street litter control notice may be served include land:
- Up to 10 metres from an automated teller machine
- Up to 100 metres away from various premises as described in The Street Litter Control Notices Order 1991, amended 1997. These include betting offices and shops, premises where lottery tickets are sold, premises where goods are displayed adjacent to or in front of the premises, and fast food premises.
Under section 95 of the Act, it’s the duty of each principal litter authority to maintain a register containing copies of any street litter control notices issued, added or varied. Details should be kept in the register for so long as the order or notice is in force.
The register should be made available to the public for inspection free of charge at all reasonable times, and facilities should be available for the public to make copies of the documents on payment of a reasonable charge.
Section 94B, free distribution of printed matter (advertising materials):
Leafleting can contribute significantly to litter. Where pedestrians drop leaflets in the street, sections 87 and 88 apply as with any other litter. However, if the leaflet distributor places the leaflets on vehicle windscreens, or in other public places, then sections 87 and 88 apply to them directly.
Section 99, powers in relation to abandoned and luggage trolleys:
Abandoned shopping trolleys pose a serious management issue, particularly within town centre car parks. Section 99 and Schedule 4 of the Act provide local authorities with a method of dealing with abandoned trolleys in their area.
Antisocial Behaviour etc. (Scotland) Act 2004
The Antisocial Behaviour etc. (Scotland) Act gave powers to Police to issue litter and flytipping fixed penalty notices. It also introduced a fixed penalty notice for Flytipping.
Waste (Scotland) Regulations 2012:
The Waste (Scotland) Regulations amended the EPA to implement several actions in the Scottish Government’s Zero Waste Plan. Under these amendments, holders of waste, including producers, have a duty to take reasonable steps to increase the quantity and quality of recyclable materials.
Litter (Fixed Penalty Notices) (Scotland) Order 2014:
This statutory instrument increased the fixed penalty notice level for littering to £80, and includes a schedule prescribing the form of notices to be issued under section 88 of the EPA.
The Controlled Waste (Fixed Penalty Notices) (Scotland) Order 2014:
This statutory instrument increased the fixed penalty notice level for flytipping to £200, and includes a schedule prescribing the form of notices to be issued under section 33 of the EPA.
The Controlled Waste (Fixed Penalty Notices) (Scotland) Order 2014
Regulatory Reform (Scotland) Act 2014:
The Regulatory Reform (Scotland) Act 2014 introduced the following:
- A requirement for alleged offenders to provide their name and address to persons with litter and flytipping enforcement powers
- Clarity regarding the placement of waste bins by householders and businesses, so that it clearly encompasses the retrieval of bins and when they should be placed and removed.
- Powers to Loch Lomond & Trossachs National Park to issue and follow up fixed penalty notices
- Scottish Ministers’ power to extend the authority to issue fixed penalties to other persons specified by order
- SEPA enforcement measures to tackle flytipping including fixed penalties of up to £2,500 and variable monetary penalties up to £40,000
- Section 43 also introduced a fixed penalty notice for offences relating to supply of carrier bags (see The Single Use Carrier Bags Charge (Scotland) Regulations 2014 below)
Section 4 of the Prevention of Damage by Pests Act 1949:
Gives local authorities the power to serve a notice on the owner and / or occupier of any land to remove accumulations of waste where damage by pests is likely to occur. The notice can require reasonable steps to be taken to remove the litter within a reasonable time period. Costs can be recovered should a council have to remove it.
Section 6 of the Refuse Disposal (Amenity) Act 1978:
Ggives local authorities the power to remove from land open to the air any ‘thing’ other than a motor vehicle which has been abandoned without lawful authority. If the land is occupied, the council must give notice of their intention to remove. Costs can be recovered from the person leaving the refuse or a person knowingly permitting it.
Section 92 of the Civic Government (Scotland) Act 1982:
Makes it an offence to leave litter in areas such as common back courts and common passageways.
Section 95 of the Civic Government (Scotland) Act 1982:
Enables local authorities to require the owner of any open space in a populous area which is set apart for use by the owners or occupiers of two or more separate properties, such as back court areas, to maintain the open space, and any boundary walls or fences, to prevent danger or nuisance to the public.
The owner of the open space can recover an equal portion of the expense from each person entitled to use the open space for any work carried out in complying with the notice.
The Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991:
The regulations require that any person who transports or makes arrangements for management of waste in the course of any business must register with SEPA.
The Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991
Section 179 of the Town and Country Planning (Scotland) Act 1997:
Enables a local planning authority to require the owner and occupier of land to take specific steps to remedy the condition of the land, if they consider the condition of the land could adversely affect the amenities of the area.
Section 179 of the Town and Country Planning (Scotland) Act 1997
Dog Fouling (Scotland) Act 2003:
If a dog defecates in a place to which this Act applies and the person in charge of the dog at that time fails to remove the faeces immediately , that person shall be guilty of an offence unless:
- They have a reasonable excuse for failing to do so; or
- the owner, occupier and other person or authority having control of the place has consented to the person failing to do so.
The Dog Fouling (Fixed Penalty) (Scotland) Order 2016:
Raised the value of the dog fouling fixed penalty notice to £80, bringing it in line with the fine for littering.
The Single Use Carrier Bags Charge (Scotland) Regulations 2014:
A minimum 5p charge for each new single-use carrier bag must be charged at point of purchase. The aim is to encourage re-use and reducing litter in Scotland.
The Single Use Carrier Bags Charge (Scotland) Regulations 2014
Landfill Tax (Scotland) Act 2014:
Landfill tax can now be recovered from illegal dumpers in addition to fines incurred due to the flytipping offence.