Redress for members of the public
Local authorities and other relevant bodies have duties to clear litter and powers to ensure that relevant persons or bodies clear up litter. In circumstances where local authorities or other relevant bodies have not fulfilled their duties to clear litter, individuals may be able to take action.
Reporting a litter problem
Individuals can report litter problems via the Government website, district and borough websites and apps such as Littergram, and, if action has not been taken to address the litter, they can approach the local authority’s Environmental Health Department. Under Section 79(1) of the EPA 1990 the local authority is required to take such steps as are reasonably practicable to investigate the complaint. The local authority may issue what is called an ‘abatement notice‘ which is designed to prohibit or restrict the activity and, thus, prevent the nuisance recurring (S.80 EPA 1990). Persons or businesses not complying with such an order may be guilty of an offence.
It is important to remember that even if the claimant wins the case, the defendant may not comply with the court order, which will necessitate further court proceedings, time and costs to try to enforce the judgment.
It may be possible for an individual or organisation to take a private prosecution against someone believed to have committed a criminal offence of littering, under Section 6(1) of the 1985 Prosecution of Offences Act. Such a claimant would be advised to ensure that they have good quality, reliable evidence of the offence being committed, and should be aware of the costs involved in bringing a private prosecution.
Littering may qualify as nuisance and there are three ways of dealing with nuisance: Statutory, Public and Private:
- Statutory Nuisance
While Section 91 of the EPA 1990, above, is specifically directed at litter, and so it will be easier to complain about litter under that provision, in certain circumstances, littering can constitute a statutory nuisance under Section 79 of the EPA 1990. Here there is the additional requirement that the litter be an ‘accumulation or deposit’ which is ‘prejudicial to health or a nuisance,’ or that ‘any premises’ are ‘in such a state’, presumably due to litter, as to be ‘prejudicial to health or a nuisance’.
- Public Nuisance
Public nuisances are crimes. A public nuisance is defined as something which, ‘materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects’. Pedestrians, for example, are generally capable of being a ‘class’ for these purposes. If the nuisance involved interference with a pavement or footway through littering, then it follows that pedestrians would be a ‘class’. Abuse of the highway is one of the most recognised forms of public nuisance.
- Private Nuisance
Private nuisance requires an unreasonable use of land by the defendant which leads to an unlawful interference with a person’s use or enjoyment of land, or some right over or in connection with land, that causes damage — either to the land or damage to health which impairs the use or enjoyment of the land. In private nuisance, the claimant must have some interest in the land affected (such as being the owner of a house) and so it is normally a claim brought between neighbours. It is possible that someone whose land is affected by littering, for example, by having litter being blown onto his property, or if the neighbour’s property is so littered with rubbish that the claimant’s property value has decreased, then he could bring a claim in private nuisance. It will only be a nuisance if it meets the test of something to be regarded as a nuisance by a ‘reasonable person’. It is possible, therefore, to sue the person responsible for the littering which caused the nuisance. In most cases of private nuisance, it will be the occupier of the land who is sued.
In certain circumstances, littering can give rise to damages in negligence when it causes personal injury. An example of a claim in negligence could include someone who slipped on a banana skin while walking across a train station. The train station owes what is known as a duty of care towards lawful users of its premises, and part of that duty is to keep clear of dangers any frequently used pedestrian areas. It would be a stronger claim if the banana skin had clearly been in place for a relatively long period of time, as the actions of the train station in maintaining the areas will be measured against the standard of what is reasonable in the circumstances.
Public law actions: judicial review
An individual, group or organisation can bring an action for judicial review where an official or public body has failed to perform a mandatory public duty, for example, a local authority has failed to carry out its duties under Section 89 of the EPA 1990.
Litter is arguably an environmental issue and, as such, while judicial review proceedings are very expensive to bring, the expense of bringing the case should be reduced by a mandatory costs cap. The costs cap forms part of a policy to guarantee access to justice at an affordable rate in environmental matters. The costs cap will also alleviate some of the risk of bringing court proceedings, because it limits the claimant’s liability to pay the defendant’s costs to £5,000 (if an individual or £10,000 if an organisation) should the claimant lose the case.
The Court is able to make a mandatory order requiring the local authority to perform its function, such as to carry out its duties under Section 89 and clean the highway. Compensation is unlikely as it is rarely awarded in judicial review cases.