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Anti-social Behaviour Bill


Anti-social Behaviour Bill
Part 7 — The environment

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Graffiti and fly-posting

 49    Penalty notices for graffiti and fly-posting

     (1)    Where an authorised officer of a local authority has reason to believe that a

person has committed a relevant offence in the area of that authority, he may

give that person a notice offering him the opportunity of discharging any

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liability to conviction for that offence by payment of a penalty in accordance

with the notice.

     (2)    But an authorised officer may not give a notice under subsection (1) if he

considers that the commission of the offence—

           (a)           in the case of a relevant offence falling within section 50(1)(c), also

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involves the commission of an offence under section 30 of the Crime

and Disorder Act 1998 (c. 37), or

           (b)           in the case of any other relevant offence, was motivated (wholly or

partly) by hostility—

                  (i)                 towards a person based upon his membership (or presumed

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membership) of a racial or religious group, or

                  (ii)                towards members of a racial or religious group based on their

membership of that group.

     (3)           In the case of a relevant offence falling within section 50(1)(f), an authorised

officer may not give a notice to a person under subsection (1) in relation to the

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display of an advertisement unless he has reason to believe that that person

personally affixed or placed the advertisement to, against or upon the land or

object on which the advertisement is or was displayed.

     (4)    Where a person is given a notice under subsection (1) in respect of an offence—

           (a)           no proceedings may be instituted for that offence (or any other relevant

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offence arising out of the same circumstances) before the expiration of

the period of fourteen days following the date of the notice, and

           (b)           he may not be convicted of that offence (or any other relevant offence

arising out of the same circumstances) if before the expiration of that

period he pays the penalty in accordance with the notice.

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     (5)    A notice under subsection (1) must give such particulars of the circumstances

alleged to constitute the offence as are necessary for giving reasonable

information of the offence.

     (6)    A notice under subsection (1) must also state—

           (a)           the period during which, by virtue of subsection (4), proceedings will

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not be instituted for the offence,

           (b)           the amount of the penalty, and

           (c)           the person to whom and the address at which the penalty may be paid.

     (7)    Without prejudice to payment by any other method, payment of a penalty in

pursuance of a notice under subsection (1) may be made by pre-paying and

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posting a letter containing the amount of the penalty (in cash or otherwise) to

the person mentioned in subsection (6)(c) at the address so mentioned.

     (8)    Where a letter is sent in accordance with subsection (7) payment is to be

regarded as having been made at the time at which that letter would be

delivered in the ordinary course of post.

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Anti-social Behaviour Bill
Part 7 — The environment

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     (9)    A notice under subsection (1) must be in such form as the appropriate person

may by order prescribe.

     (10)   Subject to subsection (11), the penalty payable in pursuance of a notice under

subsection (1) is £50.

     (11)   The appropriate person may by order substitute a different amount for the

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amount for the time being specified in subsection (10).

 50    Meaning of relevant offence

     (1)    “Relevant offence” means—

           (a)           an offence under paragraph 10 of section 54 of the Metropolitan Police

Act 1839 (c. 47) (affixing posters etc),

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           (b)           an offence under section 20(1) of the London County Council (General

Powers) Act 1954 (defacement of streets with slogans etc),

           (c)           an offence under section 1(1) of the Criminal Damage Act 1971 (c. 48)

(damaging property etc) which involves only the painting or writing

on, or the soiling, marking or other defacing of, any property by

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whatever means,

           (d)           an offence under section 131(2) of the Highways Act 1980 (c. 66)

(including that provision as applied by section 27(6) of the Countryside

Act 1968 (c. 41)) which involves only an act of obliteration,

           (e)           an offence under section 132(1) of the Highways Act 1980 (painting or

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affixing things on structures on the highway etc),

           (f)                         an offence under section 224(3) of the Town and Country Planning Act

1990 (c. 8) (displaying advertisement in contravention of regulations).

     (2)    This section has effect for the purposes of the interpretation of section 49.

 51    Penalty receipts

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     (1)    Penalties which are payable in pursuance of notices under section 49(1) are

payable to local authorities.

     (2)    In any proceedings a certificate which—

           (a)           purports to be signed by or on behalf of the person responsible for the

financial affairs of a local authority, and

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           (b)           states that payment of a penalty payable in pursuance of a notice under

section 49(1) was or was not received by a date specified in the

certificate,

            is evidence of the facts stated.

     (3)    A local authority may use any sums it receives in respect of penalties payable

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to it in pursuance of notices under section 49(1) (its “penalty receipts”) only for

the purposes of functions of its that are qualifying functions.

     (4)           The following are qualifying functions for the purposes of this section—

           (a)           functions under section 49, and

           (b)           functions of a description specified in regulations made by the

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appropriate person.

     (5)    Regulations under subsection (4)(b) may (in particular) have the effect that a

local authority may use its penalty receipts for the purposes of any of its

functions.

 

 

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Part 7 — The environment

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     (6)    A local authority must supply the appropriate person with such information

relating to its use of its penalty receipts as the appropriate person may require.

     (7)           The appropriate person may by regulations—

           (a)           make provision for what a local authority is to do with its penalty

receipts—

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                  (i)                 pending their being used for the purposes of qualifying

functions of the authority,

                  (ii)                if they are not so used before such time after their receipt as may

be specified by the regulations,

           (b)           make provision for accounting arrangements in respect of a local

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authority’s penalty receipts.

     (8)           The provision that may be made under subsection (7)(a)(ii) includes (in

particular) provision for the payment of sums to a person (including the

appropriate person) other than the local authority.

     (9)           Before making regulations under this section, the appropriate person must

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consult—

           (a)           the local authorities to which the regulations are to apply, and

           (b)           such other persons as the appropriate person considers appropriate.

 52    Powers of police civilians

     (1)    In paragraph 1 of Schedule 4 to the Police Reform Act 2002 (c. 30) (powers of

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community support officers to issue fixed penalty notices)—

           (a)           at the end of sub-paragraph (2)(c) omit “and”, and

           (b)           after sub-paragraph (2)(c) insert—

                           “(ca)                             the power of an authorised officer of a local authority

to give a notice under section 49(1) of the Anti-social

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Behaviour Act 2003 (penalty notices in respect of

graffiti or fly-posting); and”.

     (2)    In paragraph 1 of Schedule 5 to that Act (powers of accredited persons to issue

fixed penalty notices)—

           (a)           at the end of sub-paragraph (2)(b) omit “and”, and

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           (b)           after sub-paragraph (2)(b) insert—

                           “(ba)                             the power of an authorised officer of a local authority

to give a notice under section 49(1) of the Anti-social

Behaviour Act 2003 (penalty notices in respect of

graffiti or fly-posting); and”.

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 53    Interpretation

     (1)    In this section and sections 49 and 51

                    “advertisement” and “land” have the meanings given by section 336(1) of

the Town and Country Planning Act 1990 (c. 8),

                    “appropriate person” means—

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                  (a)                 in relation to England, the Secretary of State, and

                  (b)                 in relation to Wales, the National Assembly for Wales,

                    “authorised officer” means an officer of a local authority who is

authorised in writing by the authority for the purpose of giving notices

under section 49(1),

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Anti-social Behaviour Bill
Part 7 — The environment

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                    “local authority” means an authority in England and Wales which is a

litter authority for the purposes of section 88 of the Environmental

Protection Act 1990 (c. 43),

                    “racial group” and “religious group” have the meanings given by section

28(4) and (5) of the Crime and Disorder Act 1998 (c. 37).

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     (2)    Section 28(2) of the Crime and Disorder Act 1998 is to apply for the purposes

of section 49(2)(b)(i) as it applies for the purposes of section 28(1)(a) of that Act.

     (3)    The appropriate person may issue guidance—

           (a)           about the exercise of the discretion to give notices under section 49(1),

and

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           (b)           about the giving of such notices.

Removal of graffiti

 54    Graffiti removal notices

     (1)    This section applies where a local authority is satisfied—

           (a)           that a relevant surface in an area has been defaced by graffiti, and

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           (b)           that the defacement is detrimental to the amenity of the area or is

offensive.

     (2)    The authority may serve a notice (a “graffiti removal notice”) upon any person

who is responsible for the surface imposing the requirement mentioned in

subsection (3).

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     (3)    That requirement is a requirement that the defacement be removed, cleared or

otherwise remedied within a period specified in the notice being not less than

28 days beginning with the day on which the notice is served.

     (4)    If the requirement mentioned in subsection (3) is not complied with, the

authority or any person authorised by the authority may remove, clear or

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otherwise remedy the defacement.

     (5)    In exercising the power under subsection (4) the authority or any person

authorised by the authority may enter any land to the extent reasonably

necessary for that purpose.

     (6)    Subject to subsection (7), section 160 of the Environmental Protection Act 1990

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has effect in relation to graffiti removal notices as if they were notices within

subsection (2) of that section.

     (7)    Where after reasonable enquiry a local authority is unable to ascertain the

name or proper address of any person who is responsible for a relevant surface,

the authority may—

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           (a)           affix a graffiti removal notice to the surface, and

           (b)           enter any land to the extent reasonably necessary for that purpose;

            and that notice shall be treated as having been served upon a person

responsible for the surface.

     (8)    In this section a “relevant surface” is any of the following surfaces, whether

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internal or external or open to the air or not—

           (a)           the surface of any street or of any building, structure, apparatus, plant

or other object in or on any street;

 

 

Anti-social Behaviour Bill
Part 7 — The environment

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           (b)           the surface of any land owned, occupied or controlled by a statutory

undertaker or of any building, structure, apparatus, plant or other

object in or on any such land;

           (c)           the surface of any land owned, occupied or controlled by an

educational institution (including its governing body) or of any

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building, structure, apparatus, plant or other object in or on any such

land.

     (9)    But a surface is not a relevant surface unless—

           (a)           in the case of a surface within subsection (8)(a), the street is public land;

           (b)           in the case of a surface within subsection (8)(b) or (c)—

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                  (i)                 the land is public land,

                  (ii)                the surface is visible from public land, or

                  (iii)               the surface is otherwise visible to members of the public using

the services or facilities of the statutory undertaker or

educational institution in question or any other statutory

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undertaker or educational institution.

     (10)   A person is responsible for a relevant surface if—

           (a)           where it is the surface of any land (including a street), he owns, leases,

occupies, controls, operates or maintains the land, and

           (b)           where it is the surface of any other thing mentioned in subsection (8),

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he owns, leases, occupies, controls, operates or maintains the thing.

     (11)   In this section and in section (55)—

                    “educational institution” has the meaning given by section 98(2) of the

Environmental Protection Act 1990 (c. 43),

                    “graffiti” includes painting, writing, soiling, marking or other defacing by

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whatever means,

                    “local authority” means an authority in England and Wales which is a

litter authority for the purposes of section 88 of the Environmental

Protection Act 1990,

                    “proper address” is to be read in accordance with section 160(4) of the

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Environmental Protection Act 1990,

                    “public land” means land to which the public are entitled or permitted to

have access with or without payment (including any street to which the

public are so entitled or permitted),

                    “statutory undertaker” has the meaning given by section 98(6) of the

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Environmental Protection Act 1990,

                    “street” has the meaning given by section 48(1) of the New Roads and

Street Works Act 1991 (c. 22).

 55    Exemption from liability in relation to graffiti removal notices

     (1)    None of the persons mentioned in subsection (2) is to have any liability for

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damages or otherwise (whether at common law or otherwise) arising out of

anything done or omitted to be done in the exercise or purported exercise of—

           (a)           the power under subsection (4) of section (54) (including as provided

for in subsection (5) of that section), or

           (b)           the power under subsection (7) of that section.

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     (2)    Those persons are—

           (a)           in the case of the power mentioned in subsection (1)(a)—

 

 

Anti-social Behaviour Bill
Part 7 — The environment

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                  (i)                 the local authority and any employee of the authority, and

                  (ii)                any person authorised by the authority under section (54)(4)

and the employer or any employee of that person, and

           (b)           in the case of the power mentioned in subsection (1)(b), the local

authority and any employee of the authority.

5

     (3)    Subsection (1) does not apply—

           (a)           if the act or omission is shown to have been in bad faith;

           (b)           to liability arising out of a failure to exercise due care and attention;

           (c)           so as to prevent an award of damages made in respect of an act or

omission on the ground that the act or omission was unlawful by virtue

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of section 6(1) of the Human Rights Act 1998 (c. 42);

           (d)           to liability that any person mentioned in subsection (2) may have to any

employee of his.

     (4)    This section does not affect any other exemption from liability (whether at

common law or otherwise).

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Aerosol paints

 56    Sale of aerosol paint to children

     (1)    A person commits an offence if he sells an aerosol paint container to a person

under the age of eighteen.

     (2)    In subsection (1) “aerosol paint container” means a device which—

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           (a)           contains paint stored under pressure, and

           (b)           is designed to permit the release of the paint as a spray.

     (3)    A person guilty of an offence under this section shall be liable on summary

conviction to a fine not exceeding level 4 on the standard scale.

     (4)    It is a defence for a person charged with an offence under this section in respect

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of a sale to prove that—

           (a)           he took all reasonable steps to determine the purchaser’s age, and

           (b)           he reasonably believed that the purchaser was not under the age of

eighteen.

     (5)    It is a defence for a person charged with an offence under this section in respect

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of a sale effected by another person to prove that he (the defendant) took all

reasonable steps to avoid the commission of an offence under this section.

Waste and litter

 57    Unlawfully deposited waste etc

     (1)    The Control of Pollution (Amendment) Act 1989 (c. 14) is amended in

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accordance with subsections (2) and (3).

     (2)    In subsection (1) of section 7 (further enforcement provisions) for “relevant

authority” substitute “waste regulation authority”.

 

 

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Part 7 — The environment

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     (3)    After subsection (1) of section 9 (interpretation) insert—

           “(1A)              In sections 5 to 7 above “regulation authority” also means a waste

collection authority falling within section 30(3)(a), (b) or (bb) of the

Environmental Protection Act 1990.”

     (4)    After section 59 of the Environmental Protection Act 1990 (c. 43) insert—

5

       “59A                         Directions and information in relation to exercise of powers under

section 59

           (1)           The Secretary of State may issue directions setting out categories of

waste to which a waste regulation authority or waste collection

authority in England and Wales should give priority for the purposes

10

of exercising its powers under section 59 above.

           (2)           Each such authority must, by such time in each year as the Secretary of

State may specify, provide him, in respect of such period as he may

specify, with such information as he may specify in relation to the

categories and quantities of waste with respect to which it has exercised

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its powers under section 59 above.

           (3)           Priorities set out in directions under subsection (1) above may be

different for different authorities or areas.

           (4)           But nothing in this section or in any directions issued under it affects

any power of an authority under section 59 above.”

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     (5)    Subsection (15) of section 108 of the Environment Act 1995 (c. 25) (powers of

enforcing authorities and persons authorised by them) is amended in

accordance with subsections (6) to (8).

     (6)    In the definition of “enforcing authority” after paragraph (b) insert—

                    “(ba)                      a waste collection authority;”.

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     (7)    After the definition of “pollution control functions” in relation to the Agency

or SEPA insert—

                    ““pollution control functions”, in relation to a waste collection authority,

means the functions conferred on it by section 59 of the Environmental

Protection Act 1990;”.

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     (8)    After the definition of “premises” insert—

                    ““waste collection authority” shall be construed in accordance with

section 30(3)(a), (b) and (bb) of the Environmental Protection Act 1990.”

     (9)    The reference to the Environmental Protection Act 1990 in Schedule 1 to the

National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/

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672) is to be treated as referring to that Act as amended by this section.

 58    Extension of litter authority powers to take remedial action

     (1)    For section 92(10) of the Environmental Protection Act 1990 (restriction on

remedial action by litter authorities) substitute—

           “(10)              Subsection (9) above does not apply in relation to any land to which

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subsection (11) or (12) below applies.

 

 

 
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