National litter and flytipping: consultation

3. Flytipping

Flytipping covers a range of incidents from bulky items such as mattresses and sofas left near bins to several van loads of construction waste dumped in a layby with serious and organised crime groups sometimes involved. It’s a blight on local communities and environments and comes at a financial cost to the taxpayer and to businesses. Private landowners and land managers are also particularly adversely affected as they can often be left paying the cost to clear and dispose of any material flytipped on their land.

Tackling flytipping is a joint responsibility of Local Authorities and SEPA. Most reports of flytipping from the public are made directly to Local Authorities and it is local authorities that investigate the majority of incidents. It is recognised that resources across both these organisations (and partner organisations Police Scotland and National Parks) to investigate these incidents are stretched. Discussions with stakeholders also suggest there is a need for greater clarity regarding each organisation’s role in tackling flytipping, and that there is also a lack of clarity from the public’s point of view on how and where to report flytipping and how such incidents are dealt with.

On top of this it is recognised that a lack of evidence of who dumped the waste or who the waste belongs to often means that the people responsible for flytipping face no consequences. Even when individuals or businesses are identified it can remain challenging to seek effective enforcement action to deter this type of behaviour. This is felt most prominently by local authorities as their key enforcement options require court proceedings where cases of flytipping must compete with more serious criminal offences, for limited court time and be deemed by the Procurator Fiscal as being in the public interest to pursue.

Even if enforcement action is successfully applied, it is recognised that it may not always be an effective deterrent with the level of fine not necessarily comparable to the time spent investigating the offence or the financial benefit to the offender of flytipping the material.

There has been increased media coverage of flytipping as a result of the COVID-19 pandemic with concerns that many of these existing issues had been exacerbated by the closure of Household Waste and Recycling Centres (HWRCs) during the early stages of the pandemic. National polling (undertaken on behalf of Keep Scotland Beautiful in June 2020 at the end of the first lockdown) showed 30% of people felt the condition of their neighbourhood had declined during the first lockdown – 39% felt there had been an increase in the amount of flytipping in this period^[18].

This strategy offers the opportunity to tackle the issues contributing to this situation and restore public confidence that appropriate measures are being taken to prevent and address flytipping.

This strategy will have a six year life-span and actions will include short (2 years), medium (4 years) and long (6+ years) term timescales for completion.

3.1 Behaviour Change

3.1.1 Context

The National Litter Strategy (2014) outlined interventions to improve messaging about flytipping, including using consistent messages that encourage the public and motivate behaviour change. The review of the strategy outlines actions that were carried out in the first five years of the strategy.

Since the review of the National Litter Strategy in 2019, Scottish Government developed communications in partnership with Zero Waste Scotland to address flytipping that occurred as the result of the pandemic. This includes the Managing our Waste campaign^[19].

SEPA also use social media to directly target individuals looking to dispose of household waste, and businesses offering waste collections. They focus on websites, such as Facebook Marketplace and Gumtree, where these services are advertised. SEPA have also initiated an enforcement campaign targeting the illegal carrying and disposal of waste, particularly the flytipping of bulky and garden waste. This campaign has a joint aim of educating the public on their Duty of Care responsibilities through social media channels.

However, flytipping continues to be a problem in Scotland. Although much has been done to address flytipping on a local/regional basis there is still no consistent national campaign or cohesive action plan to tackle this issue.

3.1.2 Aim

Improve national flytipping messaging to ensure individuals and businesses are confident in understanding their responsibilities in disposing of waste appropriately and are fully informed on the potential consequences for not doing so.

3.1.3 Proposals

Objective 8: Understand behaviours that lead to flytipping to allow targeted approaches to be developed.

Research is necessary to underpin any behaviour change campaigns interventions that are developed under the strategy and having further Scottish specific information will help to identify behaviours and audiences that are a priority to reach with targeted interventions.

Action 8.1: Conduct research to understand the full range of influences that result in flytipping behaviour across various contexts and audience groups and use this to design effective policy interventions

Short Term

15. (a) Do you support the proposed action to conduct research to understand behaviour that leads to flytipping (action 8.1)? Yes / No / Do not know

(b) Please give reason(s) for your answer.

Objective 9: Develop and adopt a shared approach and common language between Scottish Government, local authorities, public agencies and the third sector to flytipping behaviour change across Scotland.

The review of the National Litter Strategy and subsequent engagement with stakeholders has suggested that there is a need to develop, implement and maintain a national anti-flytipping campaign that is targeted at householders, waste carriers and businesses over a number of years. This national campaign should be supported by shorter-life campaigns which target commonly flytipped materials, flytipping hotspots and a range of audiences.

Managing waste and recycling is the responsibility of local authorities; as a result measures in place to dispose of materials differ across Scotland. A single information point which brings together guidance and advice on reusing, recycling and disposing of waste will help ensure individuals understand their responsibilities and lead to less flytipping.

Action 9.1: Develop a sustained, evidence based, national anti-flytipping behaviour change campaign and deliver this consistently and collaboratively across Scotland.

Medium Term

Action 9.2: Create a single information point containing advice on disposal of commonly flytipped materials.

Medium Term

16. (a) Do you agree with the proposed actions to:

• Action 9.1: Develop a sustained, evidence based, national anti-flytipping behaviour change campaign? Yes / No / Maybe
• Action 9.2: Create a single information point containing advice on disposal of commonly flytipped materials? Yes / No / Maybe

(b) Please give reason(s) for your answer.

17. Are there topics that should be a priority to address in behaviour change interventions?

18. What information should be included in the single information point?

19. Is there a need to develop a definition of flytipping that can be adopted across Scotland? Yes / No / Do not know

3.2 Services and Infrastructure

3.2.1 Context

Services and infrastructure capture the suite of interventions that ensure facilities are accessible enabling easy reuse, recycling or disposal of commonly flytipped materials, and provision of other services which prevent flytipping from happening. Where these interventions fail to prevent flytipping from occurring, there needs to be adequate services in place for the public to report incidents and for authorities to investigate and clear them in a timely manner.

3.2.2 Aim

There is a resilient national framework which provides consistent and joined up services that are effective for both preventing flytipping where possible and tackling it effectively where it does occur.

3.2.3 Proposals

Objective 10: Improve our understanding of the sources, amount, spatial distribution and composition of flytipping

It is recognised that the data that is currently collected on flytipping contains gaps and does not provide a strong evidence base for building policy or developing interventions. Further understanding of the sources, levels, spatial distribution and composition of flytipping will enable the development of targeted interventions that can prevent flytipping from occurring. To achieve this, there needs to be greater consistency of the data that is collected. Mandatory reporting of flytipping by local authorities and other duty bodies would help to achieve this. More granular data will also allow problematic materials to be identified.

Currently, data is collected via a number of different mechanisms and there is no central database, making it more difficult to develop a full picture of flytipping across Scotland. These mechanisms include local authorities’ own internal systems, use of the LMS (formerly known as Flymapper) and reporting via Waste Data Flows. The public can reporting flytipping incidents through the national reporting service, Dumb Dumpers,^[20] which can be accessed on the Zero Waste Scotland website or by calling the Dumb Dumpers hotline. The public can also report incidents directly to their local authority, which each have their own, separate system (either an app, an online form, a specific email address or a phone number) for receiving reports of flytipping from the public.

This raises a number of challenges in building a robust data set, such as inconsistencies of data and double counting incidents. Many incidents reported through Dumb Dumpers are triaged to local authorities, this double handling, makes it more challenging for members of the public to follow up or receive any feedback on the issue they have raised.

A robust national database could help to overcome some of these barriers to achieve the aim of improving our understanding of flytipping. We propose explore the use and development of such a system and the current available sources of data and look to form a baseline.

Developing a live picture of flytipping across Scotland, which partner bodies work off of, could go further with all reports being added to the database in real time rather than uploaded at a later date and information captured on whether material is being cleared or investigated further. This could provide significant operational benefits for SEPA, Local Authorities, Police Scotland and others. It could also help to support these authorities to work collaboratively on enforcing flytipping offences.

It is also worth noting the development of electronic waste tracking. Electronic waste tracking is a UK project to develop a single digital service that will make it easy to track waste and resources in real time throughout the economy. This will provide additional details on materials which have been fly tipped and subsequently enter the waste chain, including location, quantities, waste type, and end fate.

Action 10.1: Create a data sharing agreement to support gathering of data and work with local authorities, other duty bodies, national parks, private landowners, businesses and the third sector to improve consistency of data collected in Scotland.

Short Term

Action 10.2: Explore incorporating data into a national database.

Short Term

Action 10.3: Review the Dumb Dumpers system and ensure that a fit for purpose mechanism for citizen reporting of flytipping exists in Scotland.

Medium Term

Action 10.4: Explore the development of a live picture of flytipping across Scotland.

Medium Term

20. (a) Do you support the proposed actions to:

• Action 10.1: Create a data sharing agreement to support gathering of data and work with stakeholders to improve consistence of data collection? Yes / No / Do not know.
• Action 10.2: Explore incorporating data into a national database? Yes / No / Do not know
• Action 10.3: Review the Dumb Dumpers system and ensure a fit for purpose mechanism for citizen reporting of flytipping exists in Scotland? Yes / No / Do not know
• Action 10.4: Explore the development of a live picture of flytipping across Scotland? Yes / No / Do not know

(b) Please give reason(s) for your answers.

21. (a) Do you support mandatory reporting of flytipping incidents for statuatory bodies? Yes / No / Do not know

(b) Please give reason(s) for your answer.

22. (a) Do you think we should continue to use Dumb Dumpers as the national reporting tool?

(b) Please give reason(s) for your answers.

(c) What are barriers to reporting flytipping incidents that occur on private land?

(d) Who would you report flytipping to?

Objective 11: Support the development of consistent, innovative and effective waste services and infrastructure

Through the engagement and review process, it has been suggested that the lack

a consistent approach in waste services and infrastructure across Scotland can be a barrier to the appropriate disposal of items, leading to flytipping. We propose to encourage operational data and information sharing between key organisations. The flytipping forum, which will begin meeting in early 2022, is one area where stakeholders will be brought together to identify and delivery priority action in this area.

It has also been suggested that a flexible approach is needed to tackle commonly flytipped materials. This could include mobile recycling centres, technology or amnesties to encourage responsible disposal of commonly flytipped materials at certain times the year or to support the removal of flytipping.

The term amnesties has been used to encompass a number of different interventions. It could include exploring a different approach to waste flytipped on private land with some local authorities trialling an amnesty approach that allows some flytipped material into HWRCs after an investigation has taken place. It could also include the removal of flytipping in city centre areas to support businesses, who are then tasked with keeping these areas clean. The aim will be to work with local authorities who have trialled similar schemes in the past to understand what worked and to design more detailed proposals or trials.

Through engagement with stakeholders, asbestos has been identified as a problematic material, as it can only be landfilled. It is often found in materials that have been flytipped, particularly in rural locations and on private land. Due to its hazardous nature, it poses a threat to environment as well as to the health and safety of landowners. In developing the strategy, we would like to further understand the barriers to disposing of asbestos to help develop targeted interventions.

We propose to explore how to support and encourage more reuse and repair of products to support a circular economy. This could include signposting to existing opportunities (such as third sector organisations offering opportunities to reuse items), investigating where the gaps lie with items that are not easily dealt with and investigate opportunities that could fill these gaps.

Action 11.1 Support and encourage information and resource sharing between local authorities, waste sector, SEPA and other organisations through the flytipping forum.

Short Term

Action 11.2: Explore how to support and encourage more reuse and repair of products that are commonly flytipped.

Medium Term

Action 11.3: Explore flexible approach to waste disposal (such as mobile HWRCs and targeted amnesties), and targeted interventions with a view to running trials.

Medium Term

23. (a) Do you agree with the proposed actions to:

• Action 11.1: Support and encourage information and resource sharing between stakeholders? Yes / No / Do not know
• Action 11.2: Explore how to support and encourage more reuse and repair of products that are commonly flytipped? Yes / No / Do not know
• Action 11.3: Explore a flexible approach to waste disposal with a view to trial interventions? Yes / No / Do not know

(b) Please give reason(s) for your answers.

24. How can we support and encourage sharing of data and joined up services and infrastructure?

25. Please provide examples of interventions (for example, amnesties or recycling groups) that have or have not work well.

26. What are the barriers to disposing of asbestos?

Objective 12: Provide support to private landowners and land managers that experience flytipping on their land

We will work with private landowners to support them in flytipping prevention activities; we propose to do this through exploring the use of technology and signposting to guidance. Existing technology such as GPS Mapping and CCTV could be used to help us obtain better data on flytipping whilst simultaneously acting as a deterrent - sending a clear message to potential offenders that authorities are closely monitoring key areas and taking action. Trackers in waste could also be used to support investigations where there is a suspicion of an individual/business collecting and flytipping waste.

When flytipping does occur, we also propose to provide support on reporting incidents, provide guidance on clearing flytipping. and to investigate financial support options that could assist private landowners deal with flytipping.

Action 12.1: Explore the role of technology in assisting private landowners and land managers deter flytipping on their land.

Short Term

Action 12.2: Produce updated guidance for private landowners on dealing with flytipping.

Short Term

Action 12.3: Explore alternative financial support mechanisms available to private landowners and land managers.

Short Term

27. (a) Do you agree with the proposed actions to:

• Action 12.1: Explore the role of technology in assisting private landowners and land managers deter flytipping on their land? Yes / No / Do not know
• Action 12.2: Produce updated guidance for private landowners on dealing with flytipping? Yes / No / Do not know
• Action 12.3: Explore alternative financial support mechanisms available to private landowners and land managers? Yes / No / Do not know.

(b) Please give reason(s) for your answer.

28. What support mechanisms need to be in place to help private landowners that are victims of flytipping?

3.3 Enforcement

3.3.1 Context

Section 33 of the Environmental Protection Act 1990 defines the criminal offence of flytipping. Waste criminals profit at the expense of legitimate businesses, undercutting them by not paying to dispose of waste at approved sites and competing unfairly. This can often lead to large scale flytipping, particularly in rural locations.

Where an authorised person reasonably believes that a person has committed the offence of flytipping, they may issue that person with a fixed penalty notice (FPN) as an alternative to prosecution. Under the National Litter Strategy (2014), the fixed penalty amount for flytipping was raised to £200 and could be raised by secondary legislation to a maximum of £500. Powers to issue FPNs were extended in Loch Lomond and Trossachs National Park in 2015. Local authorities, Police Scotland and Loch Lomond and Trossachs National Park currently have the powers to issue FPNs and undertake any follow up.

SEPA has enforcement powers under the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015. Where satisfied on the balance of probabilities that a person has committed the offence of flytipping, SEPA has the power to issue fixed monetary penalties (FMP) of £600, a variable monetary penalty up to £40,000. The fixed penalty amount for flytipping could be raised by secondary legislation to a to a maximum of £1,000.

SEPA has established a new waste campaign which brings together a range of FMPs for flytipping and related offences (duty of care, burning of waste, not having a waste carrier licence), creating a more effective suite of FMPs that can be applied simultaneously to individuals/businesses who breach more than one of these offences.

If an FPN is rejected or is not paid within the notice period, the issuing authority can refer the case to COPFS who will make a decision as to any further action. COPFS has the discretion to make a conditional offer of a fixed penalty, compensation or unpaid work as a means of discharging criminal liability. If the matter is prosecuted and the person convicted, they may be fined up to £2,500.

There are other enforcement tools that are available to local authorities, Police Scotland and SEPA. They can refer a case to COPFS to pursue a criminal prosecution, if deemed appropriate. Local authorities and SEPA can also require the removal of unauthorised deposits of waste (in certain conditions) under Section 59 of the Environmental Protection Act (1990).

SEPA also has the ability to receive enforcement undertaking from an individual or business that has flytipped waste. These often contain financial and other proposals to offset the damage their actions have caused. These enforcement undertaking offers have to be put forward by the offender and SEPA will then decide if they are appropriate.

3.3.2 Aim

Create a strong, consistent enforcement model that is fit for purpose and acts as an effective deterrent for flytipping behaviour.

3.3.3 Proposals

Objective 13: Develop a more effective enforcement model

The review of the previous National Litter Strategy has highlighted a number of challenges in the enforcement process, including: ability to gather appropriate evidence, identify offenders and recover fines. This poses challenges in issuing fines and prosecuting offenders as evidenced in Table 1. Data on the number of FPNs issued is held by individual issuing authorities.

Table 1: People proceeded against in Scotland for court flytipping offences (where the main charge is offences under Environmental Protection Act 1990, section 33). ^[21]

Year	Total prosecuted	Total convicted
2014-15	18	13
2015-16	11	10
2016-17	11	7
2017-18	6	5
2018-19	8	8
2019-20	2	2

It has also been suggested that a lack of a consistent and coordinated approach to enforcement across Scotland is a barrier to deterring behaviour. An evidence review of the barriers to current enforcement practices will help to inform what changes are needed to ensure that Scotland’s enforcement model is effective and deters people from flytipping. This review will inform further action, including any necessary legislative changes, that will need to be taken.

The review of the National Litter Strategy and engagement with stakeholders has identified areas where enforcement could be strengthened. This includes raising fines, extending powers to other organisations to issue FPNs, using civil penalties to enforce flytipping offences and bring powers for local authorities in line with those available to SEPA. These actions will be explored, with a view to make necessary changes subject to the review process.

In line with the Lord Advocate’s Guidelines^[22] the civil measures cannot be pursued solely on the basis that a lower burden of proof is required, it must be deemed the most appropriate level of enforcement action.

In order to transport waste or arrange the transport of waste for others, individuals need to register with SEPA as a waste carrier or broker. Currently, a waste carrier’s registration can only be removed if the individual or company has been prosecuted for flytipping. We propose to explore ability to extend this to those who have been fined for flytipping as well as looking at applying a fit and proper person test to individuals or companies and consider whether this will act as an appropriate deterrent and reduce waste crime.

The Scottish Government previously consulted on powers to enable environmental regulators to seize vehicles that are involved in waste crime including: Unauthorised or harmful depositing, treatment or disposal of waste, breaches in duty of care, as respect to waste and handling or storing waste without an environmental permit. We propose to also explore the ability to impound, sell and/or destruct these vehicles. The Scottish Government is committed to bringing forward a Circular Economy Bill this parliamentary session and these additional enforcement measures will be revisited.

Action 13.1: Conduct an evidence review of barriers to enforcement of flytipping offences

Short Term

Action 13.2: Initially raise current fixed penalties issued by local authorities, Police Scotland, Loch Lomond and Trossachs National Park for flytipping to the maximum (£500) and explore possibility of raising the maximum further at a later date.

Short Term

Action 13.3 Explore the possibility and benefits of enabling local authorities and national parks to use civil penalties to enforce flytipping offences

Short Term

Action 13.4 Explore raising current fixed monetary penalties that can be issue by SEPA for flytipping offences to the maximum (£1000) and explore possibility of raising the maximum further at a later date.

Short Term

Action 13.5^[23]: Explore the ability to remove or deny Waste Carrier’s Registration to individuals/companies fined for flytipping

Medium Term

Action 13.6: Review existing legislative powers for enforcing flytipping offences

Medium Term

Action 13.7 Take powers to enable seizure of vehicles by SEPA used in flytipping^[24]

Long Term

29. (a) Do you support the proposed actions to:

• Action 13.1: Conduct an evidence review of barriers to enforcement of flytipping offences? Yes / No / Do not know
• Action 13.2: Initially raise current fixed penalties issued by local authorities, Police Scotland, Loch Lomond and Trossachs National Park for flytipping to the maximum (£500) and explore possibility of raising the maximum further at a later date? Yes / No / Do not know
• Action 13.3: Explore the possibility and benefits of enabling local authorities and national parks to use civil penalties to enforce flytipping offences? Yes / No / Do not know
• Action 13.4: Explore raising current fixed monetary penalties that can be issue by SEPA for flytipping offences to the maximum (£1000) and explore possibility of raising the maximum further at a later date? Yes / No / Do not know
• Action 13.6: Review existing legislative powers for enforcing flytipping offences? Yes / No / Do not know

(b) Please give reason(s) for your answers.

Objective 14: Improve consistency of enforcement practices across Scotland

As mentioned in previous sections the variety of partners (SEPA, Local Authorities, Police Scotland, Loch Lomond & Trossachs National Park) involved in investigating and taking enforcement action on flytipping and the range of measures and resources available to each, has led to an inconsistent approach to flytipping across Scotland. The lack of a central system for managing incidents of flytipping across organisations, also adds to this as there is no simple way for the partner organisations to communicate which incidents they are investigating or seeking to take enforcement action on. This can make it particularly challenging to identify repeat offenders and those involved in serious organised crime, particularly when committing offences across local authority boundaries.

Part of the proposal outlined in Section 3.2 is to explore developing a national system for gathering data on reporting of flytipping incidents including whether a live picture of flytipping should be sought. A live system could bring significant operational benefits including enforcement agencies being able to see where other agencies are investigating incidents and looking to take enforcement action, offering the opportunity for more collaboration and more effective enforcement outcomes.

Local authorities have also taken action in their communities, through actions such as bringing in new, more effective CCTV cameras and investing in community clean-up schemes. Police Scotland have also launched more local SPARC (Scottish Partnership Against Rural Crime) groups to encourage collaborative working across organisations, such as in the Borders.

It was recognised in the review that there needs to be clear guidance on the roles and responsibilities of the organisations involved in tackling flytipping. We propose to look to get agreement between the key partners on this and publish guidance to support individuals and businesses understanding of this.

Action 14.1: Come to an agreement and develop guidance on roles and responsibility of SEPA, local authorities, national parks and Police Scotland in enforcing flytipping offences

Short Term

Action 14.2: Develop guidance on enforcement best practices, including on private land and seek for this to be voluntarily adopted by statuatory bodies.

Long Term

30. (a) Do you support proposed actions to:

• Action 14.1: Come to an agreement and develop guidance on role and responsibilities in enforcing flytipping offences? Yes / No / Do not know
• Action 14.2: Develop guidance on enforcement best practices, including on private land and seek for this to be voluntarily adopted by statuatory bodies? Yes / No / Do not know

(b) Please give reason(s) for your answers.