Statutory Instrument 1991 No. 719

The Litter Etc. (Transitional Provisions) Regulations 1991

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© Crown Copyright 1991

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1991 No. 719

ENVIRONMENTAL PROTECTION

LOCAL GOVERNMENT, ENGLAND AND WALES

LOCAL GOVERNMENT, SCOTLAND

The Litter Etc. (Transitional Provisions) Regulations 1991

The Secretary of State, in exercise of the powers conferred on him by section 97 of the Environmental Protection Act 1990^[1], and of all powers enabling him in that behalf, hereby makes the following Regulations:-

Citation, commencement and extent
    1.—(1)  These Regulations may be cited as the Litter Etc. (Transitional Provisions) Regulations 1991 and shall come into force on 1st April 1991.

    (2)  Regulations 5 and 6 extend to England and Wales only.

Interpretation
    2.    In these Regulations-
 (a) "the 1988 Act" means the Local Government Act 1988^[2];
"the 1990 Act" means the Environmental Protection Act 1990;
"functional work" and "works contract" have the same meaning as in Part I of the 1988 Act^[3];
"litter" includes refuse;
"relevant functional work" means functional work falling within the defined activity mentioned in section 2(2)(c) of the 1988 Act (other cleaning); and
 (b) in relation to Scotland, "highway" means "road".

Duty to keep land and highways clear of litter etc.
    3.—(1)  A local authority shall be taken to be complying, as respects any highway, with its duty under section 89(1)(a) of the 1990 Act if-
 (a) there is in force a contract entered into before 1st April 1991 between that authority and an independent contractor under which that contractor is required to remove litter from that highway, and
 (b) the condition specified in paragraph (5) is fulfilled.

    (2)  A local authority shall be taken to be complying, as respects any land, with its duty under section 89(1)(c) of the 1990 Act if-
 (a) there is in force a contract entered into before 1st April 1991 between that authority and an independent contractor under which that contractor is required to remove litter from that land, and
 (b) the condition specified in paragraph (5) is fulfilled.

    (3)  An educational body which is a local authority (in Scotland), or is the governing body of an educational institution maintained by a local authority (in England and Wales), shall be taken to be complying, as respects any land, with its duty under section 89(1)(f) of the 1990 Act if-
 (a) there is in force a contract entered into before 1st April 1991 between that authority and an independent contractor under which that contractor is required to remove litter from that land, and
 (b) the condition specified in paragraph (5) is fulfilled.

    (4)  A local authority shall be taken to be complying, as respects any highway, with its duty under section 89(2) of the 1990 Act if-
 (a) there is in force a contract entered into before 1st April 1991 between that authority and an independent contractor under which that contractor is required to clean that highway,
 (b) that contract is not a relevant contract within the meaning of regulation 6, and
 (c) the condition specified in paragraph (5) is fulfilled.

    (5)  The condition referred to above is that the authority can demonstrate-
 (a) that the contractor is fully discharging his obligations under the contract;
 (b) that, but for this regulation, the discharge of those obligations would be insufficient to enable the authority or, as the case may be, the educational body, to comply with the relevant duty under section 89 of the 1990 Act;
 (c) that the authority has used its best endeavours to negotiate such variations to the contract as would be required to ensure that the performance of the contractor's obligations would be sufficient to enable the authority or, as the case may be, the educational body, to comply with that duty;
 (d) that the contractor is not prepared to agree to such variations or is only prepared to do so on unreasonable terms; and
 (e) that the authority has no right to terminate the contract.

Additional work carried out by local authorities
    4.—(1)  In this regulation "relevant functional work" does not include any work consisting of the cleaning by a local authority of a highway where that authority did not carry out the cleaning of that highway as functional work before 1st April 1991.

    (2)  This regulation applies where-
 (a) either-
 (i) section 6 of the 1988 Act applies to relevant functional work if it is carried out by a local authority on 1st April 1991; or
 (ii) that section does not so apply, but a local authority has, before that date, carried out relevant functional work in respect of which each of the six conditions set out in section 7 of the 1988 Act is fulfilled;
 (b) the authority carries out relevant functional work in respect of any land or highway on or after that date; and
 (c) in order to comply with its duty under section 89 of the 1990 Act, or (in England and Wales) to enable an educational body which is the governing body of an educational institution maintained by the authority to comply with its duty under that section, in respect of that land or highway, the authority is required to carry out more relevant functional work than it carried out before 1st April 1991.

    (3)  Where this regulation applies, until the relevant date, section 6 of the 1988 Act shall not apply to the additional relevant functional work carried out by the authority in order to enable it to comply with its duty under section 89 of the 1990 Act in respect of the land or highway concerned; but until the relevant date-
 (a) the authority shall keep a separate account for each financial year as regards all such additional work which is carried out by it in that year; and
 (b) no item relating to that additional work may be entered in any account kept under section 9 of the 1988 Act.

    (4)  Where this regulation applies in the circumstances described in paragraph (2)(a)(ii), and the local authority carries out additional relevant functional work to which, by virtue of paragraph (3), section 6 of the 1988 Act does not apply, that section shall apply to any other relevant functional work which is carried out on or after 1st April 1991 by that authority and in respect of which the six conditions set out in section 7 of that Act are fulfilled.

    (5)  Paragraph (6) applies to a local authority if the cost to that authority of carrying out the additional work referred to in paragraph (3) in the period beginning on 1st April 1991 and ending on 30th September 1991 is equal to more than 20% of the cost to that authority of carrying out other relevant functional work in that period.

    (6)  On or after the relevant date, an authority to which this paragraph applies may not carry out any relevant functional work unless the authority has carried out a further competitive tendering exercise in the course of which each of the first five conditions set out in section 7 of the 1988 Act is fulfilled in respect of that work.

    (7)  In this regulation, "the relevant date" means the date ascertained in accordance with paragraphs (8) to (10).

    (8)  In the case of a local authority to which paragraph (6) applies, the relevant date is the date shown in column 2 of the following Table opposite the date in column 1 which is the date as from which section 6 of the 1988 Act first applies to relevant functional work carried out by that authority^[4] (other than by virtue of paragraph (4) of this regulation or regulation 5(5)):

[1] 1990 c. 43. back

[2] 1988 c. 9. back

[3] "Functional work" and "works contract" are defined in section 3. back

[4] The dates in column 1 are specified: in relation to England by the Local Government Act 1988 (Defined Activities) (Competition) (England) Regulations 1988 (S.I. 1988/1371, as amended by S.I. 1990/2082); in relation to Wales by the Local Government Act 1988 (Defined Activities) (Competition) (Wales) Regulations 1988 (S.I. 1988/1468, as amended by S.I. 1989/138, 1990/2280); and in relation to Scotland by the Local Government Act 1988 (Defined Activities) (Competition) (Scotland) Regulations 1988 (S.I. 1988/1413, as amended by S.I. 1990/2286). back

Explanatory Note