Code of Practice on Litter and Refuse (Scotland) 2018

2.0 Understanding section 89

2.1 The two duties (what action is required?)

The Act places duties on certain organisations to, so far as is practicable:

Duty 1: ensure that their land (or land that is under their control), is kept clear of litter and refuse. Descriptions of land are provided at 2.4.

Duty 2: ensure that public roads (for which the body is responsible) are kept clean.

The organisations that must comply with the duties are covered at 2.3.

This code supports the duties by setting a ‘Grade A’ standard for each: bodies should achieve this to demonstrate they have fulfilled their duties. ( Section 3.1 provides details). The code also provides the maximum timescales for an area to be restored within.

Ultimately, it is for the courts to decide whether or not it was impracticable for a body to discharge its duty. Therefore, if a body believes there are circumstances that prevent it from fulfilling its duty/ies to the standard and/or within the appropriate response time it should have evidence to support its decision. It should also take steps to fulfil the duty at the next opportunity.

Further considerations are outlined within section 3.2 (see restoring areas to comply with the duties).

Understanding that the code covers two duties, and that the expected outcome of duty fulfilment is that land is clear of litter and refuse, and roads are clean, supports bodies to identify and understand what applies to them, and what they should aim to achieve.

Further advice can be obtained from Zero Waste Scotland
www.zerowastescotland.org.uk/COPLAR

2.2 Materials in scope of the duties (what is covered?)

To understand the duties, and this code fully, it is necessary to consider:

• what materials fall within the meaning of “litter” and “refuse”
• which materials the obligation of “keeping clean” relates to.

The Act does not specify descriptions or limits to what litter, refuse or keeping clean means. A guide is provided below and bodies may identify other items they consider relevant.

Duty 1 requires explanations of litter and refuse.

Litter. Litter is considered to be “waste in the wrong place” where individual or a small number of items are thrown down, dropped or deposited in a public place by any person and is left there. In addition, other provisions within the Act ^[8] require appropriate and sufficient waste collection containers to be used to prevent material from escaping. Escaped materials should be treated as litter. Materials that could be considered as litter are wide ranging, including: food packaging, drink containers, smoking related materials including cigarette ends, chewing gum, food items, paper and plastic bags.

Refuse. Refuse should be regarded as waste material or rubbish, including household and commercial waste, flytipped waste, dog faeces ^[9] , animal carcasses and car parts. Refuse tends to be larger items than litter.

Duty 2 requires that roads, as well as being kept clear of litter and refuse, should be kept clean.

A key consideration is that they should be free of detritus. Detritus relates to Duty 2 only; it should not be regarded as litter.

Detritus. Detritus can include dust, mud, soil, grit, gravel, stones, rotted vegetation, and fragments of twigs, glass, plastic and other materials which can become finely divided. Leaf and blossom falls are to be regarded as detritus once they have substantially lost their structure and have become mushy or fragmented.

Guidance on weed growth is contained within the UK Roads Liaison Group’s ‘Well-Managed Highway Infrastructure’ code of practice ^[10] .

Identifying which materials are relevant to each duty supports bodies’ understanding of what to target in order to keep land* clear of litter and refuse, and roads clean.

*Descriptions of land are provided at 2.4

Further advice can be obtained from Zero Waste Scotland
www.zerowastescotland.org.uk/COPLAR

2.3 Who has to take action?

Bodies that are subject to each duty ^[11] are categorised within the following table.

Duty 1: To Keep Land* Clear of Litter and Refuse
Local authorities
Scottish Ministers
Certain Crown Authorities that occupy or manage Crown Land
Crown Estate Commissioners
Crown Estate Scotland
Educational institutions including: universities, publicly-funded colleges and schools
Any operator of a relevant railway asset (such as a railway station and track)
Passenger transport executives
Light railway/tramway operators
Road transport operators, other than taxi or other hire cars
Canal operators
Port/dock/harbour/pier operators
Airport operators
Occupiers of relevant land within a Litter Control Area

*Descriptions of land are provided at 2.4

Duty 2: To Keep Roads Clean
Local authorities – in respect of roads for which they are responsible
Scottish Ministers – in respect of motorways, and other special roads that are also trunk roads and certain other roads for which they are responsible

Action may be undertaken on the body’s behalf, for example outsourced to road maintenance contractors for clean-up operations or other organisations for prevention activities. However, the responsibility of meeting the duties remains with the relevant body.

Bodies that are subject to each duty, and therefore need to take action, are identified within the tables above.

Further advice can be obtained from Zero Waste Scotland
www.zerowastescotland.org.uk/COPLAR

2.4 Where do the duties apply?

Various factors determine whether land or roads are covered by the duties.

The first is that the land or roads must be directly associated with one of the bodies in 2.3. It must be:

• under their direct control and/or
• a road they are responsible for and/or
• occupied or managed on behalf of the Crown.

Further considerations then apply, and these are outlined for each duty below.

Duty 1

To be within the scope of Duty 1, land must also be publically accessible.

For local authorities, Scottish Ministers, Crown Authorities, Crown Estate Commissioners and education authorities the land should also be open to the air. This means land that is open to the air on at least one side ^[12] .

In addition, Duty 1 extends to land that is not publically accessible for:

• education authorities
• railway operators and potentially other transport providers – for example tracks and track sides near stations and in urban areas ^[13] .

Duty 1 applies to:

• hard-standing surfaces – roads, walkways, concreted land
• soft surfaces – grass, bushes, trees, bare-earth surfaces, verges, embankments and open space
• unsurfaced roads
• land covered by water – canals, streams/rivers and ponds.

For the purpose of fulfilling the duty, local authorities, Crown Authorities, Crown Estate Commissioners and Crown Estate Scotland are not required to consider land that is below the place to which the tide flows at mean high water springs ^[14] . However, it is recommended that all bodies with coastal and marine boundaries take a practical approach and, where appropriate, include such land in their prevention and cleansing activities.

This applies particularly in relation to beaches, which are used as public spaces such as bathing beaches/public amenity space. Scotland’s National Marine Plan contains policy about tackling marine litter. ^[15]

In addition, where litter or refuse occurs on beaches of designated bathing water and is considered to be a risk to bathers’ health then the Bathing Water (Scotland) Regulations 2008 ^[16] should be regarded.

For transport operators, mentioned in 2.3, details of land both covered by and excluded from Duty 1 is outlined within The Litter (Statutory Undertakers) (Designation and Relevant Land) Order 1991 ^[17] , as amended by The Railways Act 1993 (Consequential Modifications) Order 1999 ^[18] and The Litter (Statutory Undertakers) (Designation and Relevant Land) (Amendment) Order 1992. ^[19]

The Litter Control Areas Order 1991 ^[20] , as amended by The Litter Control Areas (Amendment) Order 1997 ^[21] , sets out the descriptions of land that can be designated as a Litter Control Area. These may include land that is open to the air – such as car parks, business parks, beaches and also enclosed spaces, shopping centres, cinemas, theatres, motorway service stations, and sports facilities.

Duty 2

Duty 2 applies to public roads that are the responsibility of either local authorities or Scottish Ministers.

Describing where each duty applies allows bodies to target the roads and land that should be clean and clear of litter and refuse.

Further advice can be obtained from Zero Waste Scotland
www.zerowastescotland.org.uk/COPLAR