Litter and the law
This guide will help you identify the laws which apply to litter in various circumstances – and who should be responsible for the clearance of litter.
What is litter?
Litter is not specifically defined in law although the Environmental Protection Act 1990 does contain a partial definition of litter under section 98(5)A as
a) the discarded ends of cigarettes, cigars and like products, and
b) discarded chewing-gum and the discarded remains of other products designed for chewing
However this is quite limited in scope and a dated as much litter is now from takeaways or fast food. There is more recent guidance form DEFRA (2006) which states that ‘Litter is best defined as something which is improperly discarded by members of the public in an area. It includes sweet wrappers, drinks containers, cigarette ends, gum, apple cores, fast food packaging, till receipts, small bags . . .’ but also states that ‘Litter is something, more often than not, synthetic, which is improperly discarded by the public whilst sitting walking or travelling through an area.’ DEFRA also go on to say that ‘a single plastic sack of rubbish’ or greater is considered not to be litter but comes under the category of fly tipping. This is a more serious criminal offence.
Where can littering take place?
It is only considered in law to be a crime as littering if it has been
Dropped in a place that the public have a right of access to this can be publicly owned land or private land which the public has access to e.g. garage forecourt or foot path across a field and
Is open at least on one side to the air e.g. if a person drops litter in a bus shelter this is an offence, if it’s dropped in t a telephone box it’s not.
The action of littering
It must be proven that the litter was ‘thrown down, dropped or deposited’ and left or walked away from. i.e. both ‘depositing’ and ‘leaving’ must occur and be proven for it to be an offence. Whilst the law isn’t clear on whether littering is still an offence if done accidentally or deliberately. DEFRA guidance is clear that if accidental littering has taken place i.e. something falls from a person’s pocket and they are not aware that a fine should not be given for this. In both accidental and deliberate littering DEFRA advise that the offender should be given the opportunity to pick up the litter.
Most common legislation used for littering
Dropping of litter in a space as described above is a ‘criminal’ offence, that is to say it is written in law and can lead to conviction. The legislation, which applies to littering for England and Wales, is Section 87(1) of the Environmental Protection Act 1990. Given that it is a low level crime it can be dealt with on the spot by an offender being given a Fixed Penalty Notice (FPN). This is a notice which requires the offender to pay a specified amount of money within a specified time to avoid having to go to court and getting a criminal conviction. The offender can choose to take the court option by refusing to pay the FPN, the procedure to court must happen within 6 months of the offence taking place
The level of fines used for a fixed penalty notice (FPN)
The minimum charge for a FPN is £65, the maximum is £150, the default is often £100. The maximum a court can apply if the FPN is not paid is £2,500.
Litter versus fly-tipping
The law makes a distinction between litter and fly-tipping based on size. While both are criminal offences, the distinction is important since the amount of monetary fines are greater for the offence of fly-tipping than for littering. Litter can be as small as a sweet paper or a bag of rubbish or lots of items scattered about. Less than a black sack of rubbish is considered to be littering, greater amounts are considered to be fly tipping. However the decision can vary from council to council.
*This guide was published August 2020. For a referenced version see the full report.*