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Anti-social Behaviour Bill


Anti-social Behaviour Bill
Part 7 — The environment

    39

 

 47    Closure of noisy premises: supplemental

     (1)    Where a closure order is made in relation to premises, the chief executive

officer of the relevant local authority—

           (a)           may cancel the closure order by notice in writing to a manager of the

premises,

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           (b)           shall cancel the order as soon as is reasonably practicable if he believes

that it is no longer necessary in order to prevent a public nuisance being

caused by noise coming from the premises, and

           (c)           shall give notice of the order as soon as is reasonably practicable to the

licensing authority for the area in which the premises are situated.

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     (2)    The chief executive officer of a local authority may authorise an environmental

health officer of the authority to exercise a power or duty of the chief executive

officer under section 46(1) or under subsection (1) above; and—

           (a)           authority under this subsection may be general or specific, and

           (b)           a reference in section 46(1) or subsection (1) above to a belief of the chief

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executive officer includes a reference to a belief of a person authorised

under this subsection.

     (3)    In section 46 and this section—

                    “chief executive officer” of an authority means the head of the paid service

of the authority designated under section 4 of the Local Government

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and Housing Act 1989 (c. 42),

                    “environmental health officer” of an authority means an officer

authorised by the authority for the purpose of exercising a statutory

function in relation to pollution of the environment or harm to human

health,

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                    “licensing authority” has the same meaning as in the Licensing Act 2003,

                    “manager” in relation to premises means—

                  (a)                 a person who holds a premises licence in respect of the

premises,

                  (b)                 a designated premises supervisor under a premises licence in

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respect of the premises,

                  (c)                 the premises user in relation to a temporary event notice which

has effect in respect of the premises, and

                  (d)                 any other person who works at the premises in a capacity (paid

or unpaid) which enables him to close them,

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                    “premises licence” has the same meaning as in the Licensing Act 2003,

                    “relevant local authority” in relation to premises means an authority

which has statutory functions, for the area in which the premises are

situated, in relation to minimising or preventing the risk of pollution of

the environment or of harm to human health, and

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                    “temporary event notice” has the same meaning as in the Licensing Act

2003 (and is to be treated as having effect in accordance with section

170(6) of that Act).

 48    Dealing with noise at night

     (1)    The Noise Act 1996 (c. 37) is amended as follows.

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     (2)    For section 1 (sections 2 to 9 only apply to area of local authority if authority

 

 

Anti-social Behaviour Bill
Part 7 — The environment

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have so resolved or an order by Secretary of State so provides) substitute—

       “1            Application of sections 2 to 9

Sections 2 to 9 apply to the area of every local authority in England and

Wales.”

     (3)    For section 2(1) (local authority under duty to investigate complaint of noise

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from dwelling at night) substitute—

           “(1)              A local authority in England and Wales may, if they receive a complaint

of the kind mentioned in subsection (2), arrange for an officer of the

authority to take reasonable steps to investigate the complaint.”

     (4)    In section 2(7) (power of local authority to act in relation to dwelling within

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area of other authority) omit the words from “and accordingly” to the end.

Penalty notices for 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

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

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—

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

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—

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

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

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

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—

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

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

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period he pays the penalty in accordance with the notice.

     (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.

 

 

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Part 7 — The environment

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

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

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.

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     (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

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

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

delivered in the ordinary course of post.

     (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

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subsection (1) is £50.

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

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

 50    Meaning of relevant offence

     (1)    “Relevant offence” means—

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

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

           (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)

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

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

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

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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

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).

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

 51    Penalty receipts

     (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—

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

financial affairs of a local authority, and

 

 

Anti-social Behaviour Bill
Part 7 — The environment

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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.

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

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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—

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

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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

authority’s penalty receipts.

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     (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

consult—

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           (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

community support officers to issue fixed penalty notices)—

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           (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

Behaviour Act 2003 (penalty notices in respect of

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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

 

 

Anti-social Behaviour Bill
Part 7 — The environment

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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 etc

     (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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                    “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.

 

 

Anti-social Behaviour Bill
Part 7 — The environment

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     (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)    A graffiti removal notice must explain the effect of subsections (4) and (5) and

sections 55 and 57.

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     (7)    Subject to subsection (8), section 160 of the Environmental Protection Act 1990

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

subsection (2) of that section.

     (8)    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,

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the authority may—

           (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.

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

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;

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

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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

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

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land.

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

           (a)           in the case of a surface within subsection (9)(a), the street is public land;

           (b)           in the case of a surface within subsection (9)(b) or (c)—

                  (i)                 the land is public land,

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                  (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

undertaker or educational institution.

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     (11)   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 (9),

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

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     (12)   In this section and in sections 55 to 58

                    “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

whatever means,

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                    “graffiti removal notice” has the meaning given by subsection (2),

 

 

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,

                    “proper address” is to be read in accordance with section 160(4) and (5) of

the Environmental Protection Act 1990,

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                    “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

Environmental Protection Act 1990,

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

Street Works Act 1991 (c. 22).

 55    Recovery of expenditure

     (1)    A local authority may recover from the person on whom a graffiti removal

notice was served expenditure reasonably incurred in exercise of the power

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under section 54(4).

     (2)    A local authority may not recover expenditure from a person under subsection

(1) unless it has served on that person a notice which sets out the amount of,

and details of, the expenditure which it proposes to recover.

     (3)    Section 160 of the Environmental Protection Act 1990 (c. 43) has effect in

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relation to notices under subsection (2) as if they were notices within

subsection (2) of that section.

 56    Guidance

     (1)    The Secretary of State must issue guidance to local authorities in England for

the purposes of sections 54 and 55.

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     (2)    The National Assembly for Wales must issue guidance to local authorities in

Wales for the purposes of sections 54 and 55.

     (3)    A local authority must have regard to any guidance issued to it under this

section.

 57    Appeals

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     (1)    A person on whom a graffiti removal notice is served may, within the period

of 21 days beginning with the day on which it is served, appeal against the

notice to a magistrates’ court on any of the following grounds.

     (2)    They are—

           (a)           that the defacement is neither detrimental to the amenity of the area nor

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offensive,

           (b)           that there is a material defect or error in, or in connection with, the

notice,

           (c)           that the notice should be served on another person.

     (3)    Where an appeal under subsection (1) is brought, the graffiti removal notice

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shall be of no effect pending the final determination or withdrawal of the

appeal.

 

 

 
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