Section 42: Dealing with noise at night

103.     This section amends the Noise Act 1996, which currently gives powers to deal with noise at night (by way of warning notices, fixed penalties etc.). These powers have previously only applied to a local authority (in England, Wales or Northern Ireland) that adopts to apply them in its area. Subsection (2) removes the adoptive nature of the powers in respect of England and Wales, thereby bestowing these powers on all English and Welsh local authorities. Subsection (3) removes the previously associated duty (once the powers had been adopted) to take reasonable steps to investigate a complaint, and substitutes a discretionary power to take such steps in response to a complaint. Subsection (4) removes a provision that applied to the situation where one authority had adopted powers under the Act but a neighbouring authority had not, as this will no longer apply. Subsection (5) makes provision as to what local authorities can do with penalty receipts.

Penalty Notices for graffiti and fly-posting

104.     Sections 43 - 47 give authorised local authority officials the ability to issue fixed penalty notices to offenders who have perpetrated acts of graffiti or fly posting. The intention is to levy the penalties only on the persons actually committing these acts, and not in the case of fly-posting on the person (unless he is one and the same) whose goods or services are advertised on the poster.

Section 43: Penalty notices for graffiti or fly-posting

105.     Subsection (1) sets out the power for the local authority official to issue a penalty for the relevant offence (defined at section 44). Subsection(2) excludes from the scope of such offences capable of being dealt with by means of a fixed penalty notice any that is racially or religiously targeted or motivated. Subsection (3) restricts the possibility of being issued with a fixed penalty notice in lieu of prosecution for an offence under s.224(3) Town and Country Planning Act 1990 to the person personally affixing or placing the unlawful advertisement in question. Subsection (4)(a) provides that offenders have 14 days in which to pay the penalty, after which prosecution for the offence may be initiated. Subsection (4)(b) sets out that no proceedings may be brought where payment of the fixed penalty has been made within the 14 day period. Subsection (5) provides that in issuing a fixed penalty a local authority officer must provide a written statement setting out the particulars of the offence. Subsection (6)(a), (b) and (c) sets out that the notice setting out the particulars of the offence must state that legal proceedings will not be initiated until after 14 days, the amount of the fixed penalty and details of where and to whom the penalty should be paid.

106.     Subsection (7) provides that payment of a penalty may be made by pre-paying and posting a letter containing the full amount of the penalty (in cash or otherwise) to the person named on the notice. Subsection (8) provides that where a letter is sent containing payment of the penalty, that payment is deemed as having been made at the time the letter would ordinarily be expected to be delivered. Subsection (9) provides that the penalty notice shall be in such form as the "appropriate person" (i.e. the Secretary of State, in England, or the National Assembly for Wales, in Wales) shall prescribe. Subsection (10) provides that the penalty for these offences is £50. Subsection (11) provides that the appropriate person may subsequently change the amount of the fixed penalty by means of an order (i.e. a statutory instrument).

Section 44: Relevant offences

107.     This section describes the offences in respect of which fixed penalty notices may be issued, being the graffiti-type and fly-posting-type offences otherwise prosecutable under the enactments listed at subsection (1)(a)-(f). It is understood that graffiti-type offences are almost always prosecuted under the Criminal Damage Act 1971, although the enactments listed at subsection (1)(a),(b),(d) and (e) contain provisions which might also equate to the same offence.

Section 45: Penalty receipts

108.     Subsection (1) provides that penalties issued under section 43 are payable to the local authority. Subsection (2) sets out that a local authority officer may make a statement/certificate stating the facts about payments which may be used in evidence in any proceedings. Subsection (3) provides that any sums received by a local authority from fixed penalties may be used by it only for the purposes of its "qualifying functions" (being its functions under section 43 and any subsequently so specified in Regulations made by the appropriate person). Subsection (4) and (5) relate to the qualifying functions. Subsection (6) sets out that the local authority must provide the appropriate person with information relating to the use of the penalty receipts. Subsection (7) provides that the appropriate person may, by Regulations, make provision for what local authorities must do with receipts if they are not being spent, and make provision for appropriate accounting arrangements. Subsection (8) says that such Regulations may provide that where a local authority has not spent these receipts they may be required to surrender them to another person (including the appropriate person). Subsection (9) sets out that the appropriate person must consult with local authorities and others he considers appropriate before making any Regulations under this section.

Section 46: Powers of police civilians

109.     Subsection (1) amends Schedule 4 to the Police Reform Act 2002 to include powers for a community support officer to issue penalty notices in respect of graffiti and fly posting (as they currently have for issuing penalties in respect of littering and dog fouling). Subsection (2) amends Schedule 5 to the Police Reform Act 2002 in respect of powers of accredited persons to issue fixed penalty notices to include being able to do so in respect of graffiti and fly-posting.

Section 47: Interpretation

110.     Subsection (1) defines "advertisement", "land" "appropriate person", "authorised officer", "local authority", "racial group" and "religious group". Subsection (2) applies a provision of the Crime and Disorder Act 1998. Subsection (3) permits the appropriate person to issue guidance to local authorities in respect of the exercise of their officers' discretion to issue fixed penalty notices under section 43 and about the giving of such notices. The intention is to specify that such notices are appropriate only in the case of "minor" instances of graffiti or fly-posting; where major criminal damage has been done, criminal prosecution will continue to be the appropriate course.

Removal of graffiti

Section 48: Graffiti removal notices

111.     Subsections (1) and (2) enable a local authority to serve a "graffiti removal notice" on the owners of street furniture, statutory undertakers and educational institutions whose property is defaced with graffiti that is either detrimental to the amenity of the area or offensive. Subsection (3) sets out that the notice will require them to remove the graffiti within a specified period of time, a minimum of 28 days. Subsections (4) and (5) state that if the person responsible for the property fails to remove the graffiti, the local authority can intervene and clean up the graffiti. Subsection (6) requires that the notice should detail the consequences of non-compliance and subsection (7) sets out the process for serving a notice. Subsection (8) allows that the local authority may affix a notice to the offending surface if they are unable to locate the person responsible. Subsections (9) and (10) define the surfaces covered, subsection (11) sets out whom the notice should be served upon and subsection (12) provides the definition of remaining terms.

Section 49: Recovery of expenditure

112.     Section 49 sets out the process for local authorities to recover costs from the persons responsible for the property they clean under section 48(4). Subsection (1) allows the local authority to recover costs if the expenditure claimed is reasonable. Subsection (2) requires that the local authority concerned must have previously served a notice on the persons concerned, detailing the expenditure to be recovered. Subsection (3) sets out the process for serving a notice.

Section 50: Guidance

113.     Section 50 requires the Secretary of State (or National Assembly for Wales) to issue guidance on the operation of these sections, with which local authorities must comply.

Section 51: Appeals

114.     Section 51 sets out grounds and processes for appeal. Subsection (1) allows appeal to be made to a magistrates' court within 21 days of the serving of the notice. Subsection (2) allows appeal on the grounds that the graffiti does not merit removal or in connection with the notice. Under subsection (3) any notice is suspended pending the appeal. Subsection (4) requires the court either to quash or modify the notice, or to dismiss the appeal. Subsection (5) allows the court to extend the period specified in the notice when it does not allow the appeal. Subsection (6) allows appeal on the grounds that the amount charged is excessive. Subsection (7) requires the court either to confirm the amount the authority seeks to recover or to substitute a lower amount.

Section 52: Exemption from liability in relation to graffiti removal notices

115.     Section 52 sets out the terms of the exemption from liability for damages that protects those taking action to remove the graffiti under section 48(4).

Advertisements

Section 53: Display of advertisements in contravention of regulations

116.     This section increases, from level 3 (£1,000) to level 4 (£2,500), the maximum level of penalty for an offence under s.224(3) of the Town and Country Planning Act 1990 (i.e. displaying an advertisement in contravention of Regulations made under s.220 of the Act - currently the Town and Country Planning (Control of Advertisements) Regulations 1992 (S.I. 1992/666)). The increase recognises the growing incidence of fly-posting and the need to have a more punitive deterrent for those responsible for the crime. The section has the effect of raising the maximum penalty for all advertisements displayed in contravention of the Regulations.

Aerosol Paints

Section 54: Sale of aerosol paint to children

117.     This section makes it an offence to sell aerosol spray paints to persons aged under 16. The objective is to reduce the incidence of criminal damage caused by acts of graffiti. Subsection (2) contains a definition of aerosol spray paints. Subsection (3) sets out the maximum penalty for the offence which is a fine of £2,500. Subsection (4) provides a defence for those who took all reasonable steps to determine the purchaser's age and reasonably believed he was 16 or over. Subsection (5) provides a defence for someone who is charged with an offence but did not carry out the sale themselves (such as a shopkeeper) if they took all reasonable steps to avoid the commission of an offence.

Waste and litter

Section 55: Unlawfully deposited waste etc

118.     This section gives waste collection authorities (as defined in section 30(3)(a), (b) and (bb) of the Environmental Protection Act 1990) in England and Wales a strategic role for dealing with the illegal deposit or other disposal of waste (or "fly-tipping"), facilitates the definition of this role further to the receipt of statutory directions and extends the range of powers available to them. This should lead to better enforcement of current legislation, a significant increase in investigation activity, better detection of the perpetrators of the crime and, eventually, a reduction in levels of unlawfully deposited waste.

119.     Subsections (1) and (2) correct an error in the Control of Pollution (Amendment) Act 1989 (c. 14). Subsections (1) and (3) amend the Control of Pollution (Amendment) Act 1989 (c.14) to give waste collection authorities in England and Wales the powers to stop, search and (after the issue of a warrant) seize a vehicle they suspect of being used for the unlawful deposit of waste. Subsection (4), by means of an amendment to the Environmental Protection Act 1990 (introducing to that Act a new section 59A), gives the Secretary of State the power to issue statutory directions to clarify the roles and responsibilities in the exercise of their powers under section 59 of that Act of the waste regulation authority (the Environment Agency) and waste collection authorities when dealing with illegally deposited waste.

120.     Subsection (5) amends section 71 of the Environmental Protection Act 1990 so as to provide that any of these authorities may be required to supply the Secretary of State with such information as he shall specify in relation to the categories and quantities of waste that they have dealt with whether under section 59 or under any other enactment in respect of any unlawful deposit or disposal of waste in contravention of section 33 of the 1990 Act. Subsection (10) provides that this power and the power under subsection (5) is exercisable by the National Assembly for Wales in Wales. Subsections (6) to (9) amend section 108 of the Environment Act 1995 to give waste collection authorities certain powers relating to the investigation of incidents of unlawfully deposited waste.

Section 56: Extension of litter authority powers to take remedial action

121.     This section amends section 92(10) of the Environmental Protection Act 1990 to remove the barrier which currently prevents local authorities from entering relevant land (Crown land or land owned by a Statutory Undertaker), clearing that land of litter, and recovering its costs through the courts. Exceptions will still apply to land occupied for naval, military or air force purposes.

PART 7: PUBLIC ORDER AND TRESPASS

Section 57: Public assemblies

122.     Section 14 of the Public Order Act 1986 gives a senior police officer power to impose conditions on public assemblies. Before doing so, he must reasonably believe that serious public disorder, serious damage to property or serious disruption to the life of the community might result, or that the purpose of a demonstration is the intimidation of others with a view to compelling them to act in a particular way. Conditions include the location of the assembly, its maximum duration or the maximum number of persons who may constitute it. At present these provisions only apply to groups of 20 or more persons.

123.     Section 57 amends the definition of public assembly in section 16 of the Public Order Act 1986 from "20 or more persons" to "2 or more persons" so that the powers in that Act to impose conditions on public assemblies apply to groups of two or more people. The requirement for a senior officer to hold beliefs described in the previous paragraph is unchanged.

124.     The section would not affect peaceful picketing by members of a trade union at their place of work. Picketing is protected by section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 which makes lawful certain activities done for the purpose of peacefully obtaining or communicating information or of peacefully persuading a person to work or not to work.

Section 58: Raves

125.     Section 58 amends section 63 of the Criminal Justice and Public Order Act 1994 (the 1994 Act) to extend it to cover raves where 20 or more persons are present. At present, section 63 of the 1994 Act only applies to raves where 100 or more persons are present.

126.     Subsection (3) extends section 63 of the 1994 Act to cover raves in buildings, if those attending the rave are trespassing.

127.     Subsection (6) makes it an offence for a person to make preparations for or attend a rave within 24 hours of being given a direction under section 63(2) of the 1994 Act to leave land where the person was attending or preparing for another rave. The offence is summary and the maximum penalty is 3 months imprisonment or a level 4 fine (or both).

Section 59: Aggravated trespass

128.     Section 59 amends sections 68 and 69 of the Criminal Justice and Public Order Act 1994 (the 1994 Act) to extend provisions relating to the offence of aggravated trespass to cover trespass in buildings, as well as in the open air. The result is that the offence of aggravated trespass will be constituted where a person trespassing, whether in a building or in the open air, does anything which is intended to intimidate or deter persons from engaging in a lawful activity, or to obstruct or disrupt that activity.

129.     The amended provisions might be used in respect of activists who invade the building of a targeted company with the intention of conducting an intimidating and disruptive protest. Subsection (2) amends section 68 by removing the words "in the open air" so that the offence in section 68 of the 1994 Act becomes aggravated trespass on land. Subsection (3) amends section 69 of the 1994 Act by removing the words "in the open air" so that where a senior officer reasonably believes that a person or persons are committing or participating in aggravated trespass he may direct them to leave the land. Land is defined in the Interpretation Act 1978 so as to include buildings.

Section 60: Power to remove trespassers: alternative site available

130.     This section inserts a new section 62A into the Criminal Justice and Public Order Act 1994 so as to create a new power for a senior police officer to direct a person to leave land and remove any vehicle or other property with him on that land. Subsection (2) sets out the conditions that the senior police officer must believe to be satisfied before he can give a direction to leave the land to a person. At least two persons must be trespassing on land; they must have between them at least one vehicle; they must be present on the land with the intent of residing there; and the occupier of the land must have asked the police to remove them. In addition, it must appear to the senior police officer, after consultation with the local authority, that there are relevant caravan sites with suitable pitches available for the trespassers to move to. Subsections (6) and (7) enable the Secretary of State to make an order subject to the negative resolution procedure to change the definition of 'relevant site manager'.

Section 61: Failure to comply with direction: offences

131.     This section inserts a new section 62B into the 1994 Act. Its effect is that a person commits an offence if he fails to comply with a direction given under section 62A, or if, within 3 months of the direction being given, he returns to any land in the area of the relevant local authority as a trespasser with the intention of residing there. The maximum penalty is 3 months imprisonment or a level 4 fine (or both). Subsection (5) provides a defence to this offence if the accused was not a trespasser, or had a reasonable excuse for failing to leave or returning to relevant land, or was under 18 and living with his parent or guardian when the direction under section 62A was given.

Section 62: Failure to comply with direction: seizure

132.     This section inserts a new section 62C into the 1994 Act. This provides the power for a constable to seize and remove a vehicle, if he reasonably suspects that the person who owns or controls the vehicle has committed an offence under section 62B, and the offence relates to the vehicle in question.

Section 63 and 64: Common land: modifications and interpretation

133.     New section 62D of the 1994 Act (inserted by section 63) makes necessary modifications to new sections 62A to 62C of the 1994 Act in their application to common land. New section 62E of the 1994 Act (inserted by section 64) provides for the interpretation of terms used in new sections 62A to 62D of the 1994 Act. Unlike the existing powers in section 61 of the 1994 Act, the definition of "land" includes roads.

PART 8: HIGH HEDGES

134.     This Part gives local authorities the powers to deal with complaints about high hedges which are having an adverse effect on a neighbour's enjoyment of his property. Such a system was favoured by the majority of respondents to the 1999 consultation paper 'High hedges: possible solutions'. Complaining to the local authority would always be a last resort and neighbours would be expected to have made every effort to resolve the issue amicably. If the local authority, having taken all views into account, found that the hedge was having an adverse effect it could order the hedge-owner to take action to remedy the problem and to prevent it recurring. Failure to comply with such an order could result in a fine not exceeding level 3 on the standard scale in the Magistrate's Court. The local authority would have the power to go in and do the work itself, recovering the costs from the hedge-owner.

Section 65: Complaints to which this Part applies

135.     Complaints must be made by the owner or occupier of a domestic property, on the grounds that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person (the "neighbouring land"). Even if the property is currently unoccupied, the owner may still bring a complaint under the amendments (subsection (2)). Complaints about the effects of roots are specifically excluded (subsection (4)).

Section 66: High Hedges

136.     A "high hedge" is defined as so much of a barrier to light or access as is formed wholly or predominantly by a line of two or more evergreen or semi-evergreen trees or shrubs and rises to a height of more than two metres above ground level.

Section 67: Domestic Property

137.     This section defines "domestic property" as a dwelling or its associated garden or yard.

Complaints procedure

Section 68: Procedure for dealing with complaints

138.     Complaints must be made to the local authority whose area contains the land on which the hedge is situated. Complaints must also be accompanied by any fee set by the authority. The level of such a fee must not exceed the amount specified in regulations made under this section (subsection (7)).

139.     The local authority may reject the complaint if they consider that the complainant has not taken all reasonable steps to resolve the matter without involving the authority, or if they consider that the complaint is frivolous or vexatious (subsection (2)). If the local authority decide, on this basis, not to proceed with the complaint, they must inform the complainant as soon as is reasonably practicable and must explain the reasons for their decision (subsections (5) and (6)).

140.     Where the local authority proceed with the complaint, they must decide in the first place whether the height of the high hedge is adversely affecting the complainant's reasonable enjoyment of his property. If so, the authority must then consider what, if any, action to require to be taken in relation to the hedge in order to remedy the adverse effect and to prevent it recurring (subsection (3)).

141.     The authority must, as soon as is reasonably practicable, inform the parties of their decision and the reasons for it. If the authority decide that action should be taken, they must also issue a remedial notice (under section 69).

Section 69: Remedial Notices

142.     The remedial notice must specify the hedge it relates to; what action is required to be taken in relation to the hedge in order to remedy the adverse effect and by when; what further action, if any, is required to prevent recurrence of the adverse effect; what date the notice takes effect; and the consequences of failure to comply with the requirements of the notice.

143.     The action specified in a remedial notice may not involve reducing the height of the hedge below 2 metres, or its removal.

144.     While the remedial notice is in force, there is an obligation on the local authority to register it as a local land charge. In addition, the notice is binding not only on whoever is the owner or occupier of the neighbouring land at the time it is issued but also on their successors.

Section 70: Withdrawal or relaxation of requirements of remedial notices

145.     A local authority can withdraw a remedial notice or waive or relax its requirements. If they do so, they must notify the complainant and the owner/occupier of the neighbouring land.

Appeals

Section 71: Appeals against remedial notices and other decisions of relevant authorities

146.     This section sets out rights of appeal against the local authority's decisions under sections 68 and 70, and against any remedial notice issued by them. The appeal authority is the Secretary of State in respect of appeals relating to hedges situated in England, and the National Assembly for Wales in respect of appeals relating to hedges situated in Wales.

Section 72: Appeals procedure

147.     The appeal authority can set down in regulations the procedure for dealing with such appeals. The appeals authority may appoint another person to hear and determine appeals under the Bill, and may also require such a person to carry out all or any of its appeals functions (subsection (4)).

Section 73: Determination or withdrawal of appeals

148.     The appeal authority may allow or dismiss an appeal, either in total or in part. If the appeal authority decides to allow the appeal, it may quash or vary the remedial notice to which the appeal relates. It may also issue such a notice in those cases where the local authority decided not to do so in response to the original complaint. Whatever its decision on the appeal, the appeal authority may correct any defect, error or misdescription in the original remedial notice if it considers this will not cause injustice.