EHJ May 2005, pages 12-14

The Clean Neighbourhoods and Environment Act was published last week. Stuart Spear canvasses opinions on whether it's a useful tool to combat envirocrime or poorly drafted legislation

A dog's dinner of a piece of legislation or a useful tool to allow local authorities to combat envirocrime? The jury is out on the Clean Neighbourhoods and Environment Act, one of the last pieces of legislation to be enacted before the election was called. The act is a key part of the Department for the Environment Food and Rural Affairs' five-year environment strategy to clean up people's immediate environment, boost sustainable development, increase energy efficiency and care for rural communities. Launching the bill in December, Prime Minister Tony Blair said: "The environment starts on our doorstep. The plan helps individuals make their own green decisions. It shows we are as committed to domestic actions to match our international effort on climate change."

No-one can deny that the act has a broad sweep. It increases the powers of local authorities to tackle antisocial behaviour, graffiti, flyposting, abandoned shopping trolleys, dog fouling, litter, abandoned cars, noise nuisance and fly tipping (see table). It introduces two new forms of nuisance, light pollution and insects and it amends the contaminated land appeals procedure. It introduces fixed penalty notices as a key enforcement tool. And just for good measure it puts the Commission for Architecture and the Built Environment on a legal footing. Not bad for a piece of legislation which passed through parliament in four months.

But for some, who suspect the bill was rushed as an electioneering tool, that is its weakness. Howard Price, CIEH principal policy officer, believes the act is poorly drafted in places, is unnecessary in others and that its liberal use of fixed penalty notices is an invitation to corruption. "Look at what has happened with parking measures. Fixed penalty notices invite corruption when combined with the right to keep receipts. It just allows local authorities to raise revenue through enforcement with little or no accountability," he warns.

But not everyone is critical of the act. The Local Government Association has thrown itself squarely behind the new legislation saying that it now gives local government all the powers it has craved for years to finally stamp out envirocrime. Des Waters, head of street scene and public protection for Southwark LBC, agrees. An enthusiastic supporter of the new legislation, he welcomes the new powers and the extension of fixed penalty notices. "We have found fixed penalty notices, especially related to waste, very useful. We have had 90 per cent payment and we have found it a useful stream to invest back into enforcement services or work related to dealing with envirocrime."

He believes the new act streamlines powers dealing with abandoned vehicles, empowers local authorities to tackle graffiti, litter and dog fouling and in Southwark's case will free up police resources when EHPs have the power to search vehicles suspected of being involved in fly tipping. "In Southwark we have one of the largest neighbourhood warden services and we are looking to see how many of these fixed penalty notice enforcements we could devolve to them," said Mr Waters.

The campaign group Encams, formerly the Tidy Britain Group, is also a keen advocate of the new legislation. Dee Bingham, policy and practice manager for the campaign group, argues that giving councils discretion over the size of fines allows them to clamp down in areas where graffiti, litter or dog fouling is a serious concern. But she sounds a note of caution. "It's really important that whoever is enforcing the act is properly trained and fully understands the extent of their powers and uses them appropriately. Local authorities also have to be clear and run a communication strategy which allows people to stay on the right side of the law." She agrees there may be concerns about funds going back into local environmental quality.

It is over the noise nuisance section of the new act that the "dog's dinner" school of thought gains currency. Dave Strevens, noise team leader for Greenwich LBC, has been involved in a fierce e-mail debate with Defra over the noise provision in the act. He sees the new legislation as a retrograde step. "This was hurriedly rushed through and badly drafted," he says.

Mr Price agrees and has pointed out to Defra that the London Local Authority Act 1991 and the Noise and Statutory Nuisance Act 1993, which was never brought into effect, both adequately dealt with misfiring intruder alarms. Existing powers have been watered down by the new legislation. Alarms no longer have to be fitted with a 20-minute cut off, only one key holder is required rather than two and councils now have to designate alarm notification areas by writing to each householder, rather than adopting the powers borough-wide. "Getting a notification to every single household and every business in the borough is for a London authority a very big hurdle," said Mr Strevens. He is also concerned about how to keep tabs of people moving home, and how to ensure new householders are kept informed of their responsibilities. In London boroughs the police are no longer required to hold key-holder data. However, the clean neighbourhoods act fails to require police to hand this existing information over to councils, meaning that much of it will be lost, requiring councils to start from scratch.

The act also extends the Noise Act to licensed premises allowing local authorities to issue fixed penalty notices on noisy pubs and clubs. Mr Price believes this is overkill as powers already exist under the Environment Protection Act 1990, the Licensing Act 2003 and the Antisocial Behaviour Act 2003. "They face fines, seizures of noise-making equipment, the loss of their licenses and even summary closure already," points out Mr Price.

The provision in the act to defer serving abatement notices for seven days is also seen as pointless, seven days not being long enough for anyone to realistically be able to achieve any kind of arbitration. However, one positive to come out of the noise section of the act is that councils will now no longer have to get a magistrate's permission to cut off an external alarm that has been ringing for 20 minutes.

Another area of concern is how practical legislators have been in adding artificial light to the list of nuisances under part 111 of the Environment Protection Act. Other EPA nuisances either impact on public health or prevent people's enjoyment of their premises.

"We have years of understanding about noise and other nuisances," said Tim Clarke, pollution control manager for Bristol DC. "In relation to light it is going to be much more difficult, you can keep light out with curtains, noise can't be kept out so easily." Street lighting and other major sources of light pollution are exempt from the legislation, which is aimed at resolving neighbour disputes over security lights going off. "Too often local authorities are being dragged in to settle petty disputes between neighbours and we should ask if that is an appropriate role for EHPs," added Mr Clarke.

Stray dogs is another area covered by the act, which since 1906 has been the responsibility of the police, a responsibility they have been trying to get rid of for the last 30 years. At last they have succeeded. The clean neighbourhoods act finally hands strays exclusively to local authorities. Previously they were the responsibility of councils during the day, the police at night. According to Lou Leather, CIEH advisor on animal welfare, while this is a logical way to handle strays, cash-strapped councils are just not going to have the funds for holding kennels or 24-hour animal welfare teams. "It's another example of local authorities ending up with lots more duties and no more cash, so we want to see some evidence of proper funding to get this done properly," said Mr Leather. While having 24-hour teams exclusively dealing with stray dogs is unlikely, Mr Leather envisages councils having 24-hour emergency or antisocial behaviour teams, with strays being one of their duties. Sensitive to the problems around this issue, the government has committed not to bring in this part of the act until resources are in place.

As for the remainder of the act, most of it will come into force next April, except for parts of the changes on litter enforcement, flyposting and fly tipping (see following table) which will come into force this June. Guidance is expected imminently where maximum and minimum fixed penalty notices are expected. The LGA has called for fines to be reviewed after a year.

The Clean Neighbourhoods and Environment Act is available at: www.legislation.hmso.gov.uk/acts/acts2005/20050016.htm