Litter and flytipping offences - enforcement review: final report

Scottish Government Introduction

This research report was commissioned by Scottish Government in 2022 and completed by Anthesis in autumn 2023. The views expressed within this report do not reflect the policy position of the Scottish Government, Crown Office and Procurator Fiscal Service (COPFS); Scottish Courts and Tribunals Service or Police Scotland or any other public or regulatory bodies.

Since this research report was completed a number of changes have occurred in the litter and flytipping policy area. These have not been amended throughout the report as it is an independent report. The main developments are set out below:

1. The level of the fixed penalty for flytipping in Scotland was increased to £500 on 1 January 2024 by the SSI 2023/335: The Fly-tipping (Fixed Penalty) (Scotland) Order 2023

2. From the 10 July 2023, the UK Government amended the upper limit of a FPN from £400 to £1000 for England. The maximum amount those caught fly-tipping could be fined has increased from £400 to £1,000.

3. The Circular Economy (Scotland) Bill is currently being considered by the Scottish Parliament and includes the littering from vehicles provision outlined in this report.

4. The Circular Economy (Scotland) Bill is currently being considered by the Scottish Parliament and includes revision to the duty of care for householders to make non-compliance an offence. Section 10 of the draft Bill creates the power for local authorities to issue an FPN of £200 to a householder where they have failed, without a reasonable excuse, to comply with the duty of care, which will allow for FPNs to be issued in certain circumstances to householders who can be identified as the source of flytipped waste.

5. The National Litter and Flytipping Strategy and Year One Action Plan were published in June 2023, the work to deliver the Strategy has put in train a number of activities that are recommended in this review. These are detailed below:

Recommendation 4

Create a collaborative approach that provides guidance and support to encourage local authorities, Police Scotland and Loch Lomond and the Trossachs National Park Authority etc to report cases to COPFS where appropriate to do so.

Action 10 in the NLFS Year One Action Plan – Clarification on roles and responsibilities: Support key stakeholders to review guidance on roles and responsibility of Scottish Environment Protection Agency, local authorities, national parks and Police Scotland in investigating and enforcing flytipping offences.

Recommendation 7

As proposed in the National Litter and Flytipping Strategy pursue proposals for the Circular Economy Bill around a new enabling power that will allow a Fixed Penalty Notice (FPN) to be issued to the registered keeper of the vehicle when a littering offence has been committed from that vehicle.

Powers are contained in the Circular Economy (Scotland) Bill which is currently being considered by the Scottish Parliament.

Recommendation 11

As proposed in the National Litter and Flytipping Strategy, increase the FPN for flytipping from the current level of £200, using existing secondary legislation or additional legislation as required (it is noted that the FPN could be raised by secondary legislation to a maximum of £500).

Action 7 in the NLFS Year One Action Plan –

Proposed changes in legislation: Raise the current value of Fixed Penalty Notices, which can be issued by local authorities, Police Scotland and Loch Lomond and Trossachs National Park, to the current maximum in Scotland of £500.

This action was completed and the increased FPN level was introduced on 1 January 2024.

Recommendation 17

Encourage waste management services that host online marketplaces to carry out due diligence on businesses that advertise waste collection services. This could involve requiring marketplaces to check SEPA’s Register of Waste Carriers and Brokers prior to the advert going “live” and collaboration with SEPA to carry out regular audits/checks.

The Integrated Authorisation Framework (IAF) will standardise, simplify and streamline SEPA’s regulation of its four main regulatory regimes (water, waste, industrial emissions and radioactive substances).

It will also give SEPA more flexibility on how to enforce regulations and assist in preventing illegal and harmful activities.

Action 12 in the NLFS Year One Action Plan –

Increase use of digital technologies to detect and disrupt flytippers: Enhance the use of open-source research to identify unregistered waste carriers advertising on-line (as well as rogue operators operating behind a Waste Carrier Registration) and, where they are found, apply both online interventions to deter and disrupt their actions, as well as capture information to support their investigations leading to enforcement action.

Recommendation 18

Look to increase collaboration with less formal marketplaces who receive significant volumes of traffic from “man with a van” type operators to increase the flow of information from such operators to SEPA, trading standards and other relevant bodies so these agencies can follow up on cases more efficiently and effectively.

Action 12 in the NLFS Year One Action Plan, (see above).

Recommendation 20

Ensure a consistency of approach across agencies and Scotland for vetting, identifying, and taking enforcement action against businesses that offer waste collection services without the required authorisations.

Action 12 in the NLFS Year One Action Plan, (see above).

Recommendation 21

As discussed in the National Litter and Flytipping Strategy further consider the introduction of unified reporting for flytipping instances across Scotland to make it simpler for those reporting flytipping (including private landowners) to allow for trends to be identified quicker and enforcement targeted more effectively.

Actions 15-19 in the NLFS Year One Action Plan

15. Developing a Litter & Flytipping Data Strategy: Explore and identify the data necessary to support local and national action planning, monitoring and evaluation activity Zero Waste Scotland

16. Developing litter data: Building on work completed to date with regards to LEAMS and LMS, engage with a wider range of stakeholders and ensure a common approach to data management, analysis and use. Keep Scotland Beautiful

17. Improving consistency of litter data: Actively promote and improve quality and consistency of citizen science to support litter data collection, and complement existing programmes. Keep Scotland Beautiful

18. Improving consistency of flytipping data: Engage and work with a wide range of stakeholders to establish data requirements. Develop structures which improve consistency of this flytipping data and incorporate it into a new Scottish national database on flytipping. Scottish Environment Protection Agency

19. Developing flytipping data: Explore the development of a live picture of flytipping across Scotland.

Recommendation 22

Building on the recommendations in the National Litter and Flytipping Strategy, implement a data sharing agreement to support the gathering of data and work with enforcement bodies, private landowners, and other key stakeholders to improve consistency of data collected across Scotland. Further exploration of why data is not currently shared across different regions, enforcement bodies and stakeholders will help to ensure this barrier is addressed.

Action 15-19 in the NLFS Year One Action Plan, (see above).

Scottish Government

April 2024