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Do you ever feel that the more you pay in council tax the less you receive in return? This summed up the feelings of one group of concerned Edinburgh residents we recently acted for.
They all lived in the same residential street and, over time, had become increasingly concerned by the build up of litter on the pavement and roadway outside their houses. They could readily recall the days when the old cleansing department employed street cleaners who would regularly sweep up pavement litter and take it away. But that service seemed to have largely ceased without any diminution in council tax to compensate. Of course, they complained to the council to tackle the problem, but when this did not achieve any success they came to us for legal advice.
Initially, we thought this one would be a hard nut to crack, but we agreed to look at the law to see if there might be anything we could do to help. After a few hours searching, we were pleased to discover the Environmental Protection Act 1990, section 89 of which requires a local authority “to ensure that the land [within its designated area] is, so far as is
practicable, kept clear of litter and refuse."
This duty applies to every “public road other that a trunk road”, which effectively covers most streets and open places.
If such a place is covered in litter then a member of the public can complain under section 91(5). Before instituting proceedings under this section, “the complainant shall give to the [local authority] not less than five days written notice of his intention to make the complaint and the notice shall specify the matter complained of".
The council then has to clean up the area, and if it fails to do so the complainant can go to court for a Litter Abatement Order. Under section 91(6), "if the court is satisfied that the highway or land in question is defaced by litter or refuse" or, in the case of a highway, "is wanting in cleanliness", the court has the power to make an "abatement order" requiring the council to clear away the litter or refuse or, as the case may be, clean the highway within a specified time.
Consequently, we submitted a preliminary complaint to the City of Edinburgh Council on behalf of the residents and when this was ignored we then went on to make an application to the sheriff court under the Act. This seemed to concentrate minds wonderfully at the City Chambers; no sooner had the application been served than workmen were despatched to the location and the offending litter cleared away. We then withdrew our action, but only after securing an agreement from the city council to pay our clients’ legal expenses.
So the moral is clear: if you live in an area where public litter and refuse is a constant problem because of inaction or indifference by the local authority, you don't have to suffer in silence. You may have the right to compel the council to do something about it.
If you have a problem with litter, contact John Mitchell, Richard Godden, Ann Scott, or Douglas Peters on 0131 222 8000 for a free discussion.
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