Litter and flytipping offences - enforcement review: final report

Summary and Recommendations

Across the countries reviewed, a range of enforcement measures are used. They do, however, all focus around base level fines for minor offences that generally increase with the severity of the offence. Littering and flytipping is not a challenge that is unique to Scotland, nor are the barriers to enforcement. Scotland is also not the only country where the number of fines issued, and the number of cases prosecuted are generally low in relation to occurrences of both litter and flytipping.

The following section outlines a range of recommendations for areas to be explored to overcome the barriers to effective enforcement of litter and flytipping offences. These are informed by the evidence gathered for this project and take into account the Scottish context.

As outlined in the report, effective enforcement is only one element to tackling litter and flytipping, with education, awareness and behaviour change playing a significant role. The following recommendations therefore consider the issue of litter and flytipping as a whole, with some recommendations complementing effective enforcement rather than addressing the specific barriers identified.

While there are a number of barriers to the use of existing powers and the effectiveness of enforcement, Anthesis has identified several areas that could be taken forward for further review and implementation, as outlined below. Litter and flytipping, the motivations behind these offences and their effective enforcement are complex. It is unlikely that one recommendation in isolation will significantly increase the effectiveness of enforcement, rather a holistic approach that actively looks to address the barriers to enforcement outlined in this report will be needed.

Currently in Scotland, local authorities, Police Scotland, SEPA and Loch Lomond and The Trossachs National Park Authority have enforcement powers. Stakeholder engagement and the evidence review did not find strong support for granting additional bodies enforcement powers given the challenges already faced in ensuring a consistent approach. Therefore, granting additional bodies enforcement powers is not put forward as a recommendation of this research. Should additional bodies (e.g., Scotland’s other national park) be given enforcement powers in the future, Anthesis suggests careful consideration is given to the challenges raised in this report around resources, roles and responsibilities, consistency of approach and clarity of messaging.

The new National Litter and Flytipping Strategy highlights and publicises the work that has already been done in Scotland to combat the issues around litter and flytipping and the need to prioritise further action. However, this project found that those with enforcement powers have a number of competing priorities and responsibilities and litter and flytipping may not always be the top priority. In addition, stakeholders interviewed as part of the project indicated that tight budgets mean that litter and flytipping enforcement slip down agendas and is not seen as a priority and is therefore not adequately resourced.

• Recommendation 1: look to adequately fund (possibly ringfencing funds) enforcement bodies so they can conduct robust investigations and, where appropriate, carry out enforcement actions for litter and flytipping offences.

One of the main barriers to the use of existing enforcement powers raised during this research is understanding around the roles and responsibilities of different enforcement bodies, the use of interconnected systems for enforcement and collaboration between bodies. This is an area that if addressed, could lead to more effective enforcement.

• Recommendation 2: as proposed in the National Litter and Flytipping Strategy action plan create a “Framework for Enforcement” (guidance document) for all enforcement bodies clearly outlining the roles and responsibilities of each body. This recommendation will require ownership upon being taken forward.

As outlined in this report and highlighted in the National Litter and Flytipping Strategy, identifying the offender and collecting robust evidence is particularly challenging for on the ground enforcement officers. In addition to the Framework for Enforcement and in order to help improve consistency, practical guidance should be created for enforcement officers.

Recognising regional variations, the primary purpose of this guidance should be to outline powers available to all bodies, offer advice on evidential standards, highlight opportunities for collaboration and signpost to additional information to support improved consistency of use across the enforcement framework. In the case of SEPA, officers have access to an inspection manual, training and other practical guidance in relation to investigations, enforcement and the tools available.

• Recommendation 3: create an “Enforcement Manual” for ‘on the ground’ enforcement officers so they clearly understand all the existing powers that can be used for litter and flytipping offences and evidential requirements. Recognising regional variations in approach, this manual will help offer advice on evidential standards, highlight opportunities for collaboration and signpost to additional information to support improved consistency of use across the enforcement framework. This recommendation will require ownership upon being taken forward with support from Keep Scotland Beautiful.

One of the main barriers to effective enforcement and the use of current powers is the lack of follow through between a FPN being issued, the offender choosing not to pay the FPN and the case being passed to prosecutors. When FPNs are not paid (and there is no resulting action) it gives the message that individuals can get away with the crime without any punishment. The threat of consequence looks empty and undermines the effectiveness of the model, acting as a barrier to the future use of enforcement powers. There clearly needs to be greater follow through, however, it is recognised that this takes time, resources, and budget.

In the case of SEPA, FMPs and VMPs can be passed on to sheriff officers for recovery or to ‘enforce diligence’ if unpaid. As FPNs are an alternative to criminal prosecution, non-payment cannot be recovered and should result in the offence being reported to the Procurator Fiscal for prosecution.

• 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.

Behaviour change was also highlighted as a key consideration amongst stakeholders engaged as part of the project. Anthesis recommends focusing on litter and flytipping as a behavioural problem, working to prevent it by ‘calling-out’ bad behaviour, as well as by using penalties. Currently SEPA publishes the names of persons who are given FMPs and VMPs and details of the offence on its website^[180] in line with its Policy on Communicating Penalties and Undertakings^[181] and the discretion it is accorded to do so by the Environmental Regulations (Enforcement Measures) (Scotland) Order 2015. While SEPA publish information of persons names and details of the offence, in the case of FPNs this would be problematic/not be appropriate , as by accepting the FPN a person is accepting an alternative to criminal prosecution and in so doing are discharged from any liability to conviction for the offence to which the FPN relates; they have therefore not been formally charged, or convicted of that offence.

In the case of FPNs there could be a greater emphasis on publicising the number of FPNs being issued, prosecutions and convictions and potentially the local authority region in which these take place to increase public awareness of enforcement actions being carried out. Some of these statistics are in the public domain, but they are not actively publicised or reported on. Given the current number of FPNs issued, along with prosecutions and convictions, is relatively small, careful consideration would be needed to the framing of this information. This could be a recommendation for Scottish Government to take forward over the coming years once the new National Litter and Flytipping Strategy has been embedded and the enforcement model revised.

• Recommendation 5: Increase publicity around the number of penalties issued, cases taken forward for prosecution and convictions to show that there is a robust system in place for tacking illegal behaviour in Scotland.

Litter

The evidence review and stakeholder engagement found that the monetary value of an FPN is often not the key driver in making people care about their behaviour or dissuading them from reoffending. In the case of litter, there are multiple behavioural aspects at play, and the reason why someone chooses to drop litter is complex. Factors relate to the individual, the situation, and the litter/waste type.

Given litter is a thoughtless, moment-in-time act, there may be little benefit of increasing the maximum FPN for littering. Instead, a more holistic approach may be required. Evidence and stakeholder engagement indicated that for littering the use of non-monetary penalties can prove to be just as effective in deterring this negative behaviour and helping reduce re-offending by making the litterer think about litter, the act of littering and its impact on others. This is demonstrated in Glasgow City Council where the council offers offenders a 3-hour litter pick rather than paying the FPN. The project has seen some participants becoming Neighbourhood Improvement Volunteers. While there are legislative and non-legislative routes to running such projects, one of the main barriers is likely to be the cost of issuing and processing FPNs versus the cost of infrastructure and resources required for non-monetary schemes.

• Recommendation 6: further promote (e.g., through a future Enforcement Manual) the use of innovative non-legislative tools at enforcement bodies’ disposal such as designated initiatives to educate offenders such as community litter-picks.

Current legislation requires the individual who is littering to be identified before enforcement action can be taken and, in the case of littering from a vehicle, there may be multiple individuals in a vehicle and it is often not possible to identify who littered. Offences are often not recorded or pursued because the individual cannot be officially identified. This creates a gap in current enforcement, weakening the deterrent power of the FPN. New powers around littering from vehicles could help to increase the deterrent effect and options available to enforcement officers in tackling roadside litter.

• Recommendation 7: as proposed in the consultation for a new National Litter and Flytipping Strategy pursue proposals for the Circular Economy Bill around a new enabling power that will allow a civil penalty to be issued to the registered keeper of the vehicle when a littering offence has been committed from that vehicle.

The use of other non-monetary penalties such as points on an offenders’ driving licence for a repeat offence of discarding litter from a car for littering could prove to be useful in acting as a deterrent. This would also apply to flytipping offences. However, the subject matter of the Road Traffic Offenders Act 1988 is reserved and so legislative changes to impose penalty points for such offences cannot currently be taken forward by the Scottish Government. Whilst not presented as a recommendation, this could be an area for future consideration, depending on the legislative landscape.

Those with statutory duties to keep land clear of litter and refuse may use third party waste contractors for street cleansing. Anthesis suggest that contractors could support efforts to reduce litter and flytipping by notifying authorities or landowners of hot spot areas. KPIs could be built into contracts and used to help increase the visibility of hot spot areas, helping those responsible for clearing land and carrying out enforcement action to direct resources appropriately and effectively (e.g., it could help identify areas where CCTV coverage needs to be increased).

Flytipping

One of the main areas of feedback from stakeholders was the lack of consistency and a joined-up approach across Scotland, the various enforcement agencies, policy makers and other stakeholders when it comes to enforcement, particularly flytipping enforcement. In addition to the Framework for Enforcement and Enforcement Manual suggested in recommendations 2 and 3 respectively, the existing Flytipping Forum^[182] could be used to drive a more collaborative approach across the various stakeholders involved.

• Recommendation 8: Develop role of Flytipping Forum to help promote and facilitate national oversight and drive a more effective and consistent enforcement model for flytipping.

For cases passed on to COPFS the quality of evidence submitted by enforcement agencies is key, with insufficient evidence meaning that COPFS cannot progress the case for prosecution. While factors such as the location of the illegally disposed waste does not make a difference as to whether a case proceeds it is important information to understand the wider picture. Other areas which are important considerations are the cost of clear up, whether any injuries resulted from the disposed waste and whether the accused is a repeat offender.

• Recommendation 9: use the Flytipping Forum to enhance collaboration and information sharing between enforcement bodies, the courts, sheriffs, COPFS and other bodies to ensure a shared understanding of evidential requirements for prosecution and so all stakeholders understand the full impact (on amenity, health, environment, legitimate business etc.) and clean-up cost associated with flytipping when issuing fines and/or sentencing.

As mentioned above, and throughout the report, one of the main barriers to effective enforcement is the ability to collect robust and appropriate evidence to issue a FPN or, where required, pass the case to COPFS. Some enforcement bodies are utilising technological solutions such as AI. While it is recognised that such tools are beneficial in terms of collecting robust evidence, it would be impossible to get sufficient coverage to assist with all cases. There could, however, be benefits to targeting known flytipping “hotspots” with such technology.

• Recommendation 10: look to carry out a detailed review into the use of technology (e.g., AI) for combatting flytipping in terms of the benefits for collecting robust evidence to allow for FPNs to be issued and cases passed on for prosecution where appropriate. This could include a cost benefit analysis of the use of such tools to assess their cost and effectiveness in flytipping enforcement.

While evidence and stakeholder engagement suggest that increasing the level of the FPNs for littering may not help in deterring offenders, there was stronger support for increasing the FPN for flytipping. The level of the penalty needs to reflect the severity of the crime, and a £200 FPN does not act as a deterrent and is often not comparable to the time and money spent investigating the offence and clearing it up. In addition to increasing the FPN for flytipping there was strong support for compensation for landowners, paid for by offenders.

• Recommendation 11: as proposed in the National Litter and Flytipping Strategy, increase the FPN for flytipping from the current level of £200 to £500, using existing secondary legislation or additional legislation as required (and explore increasing this further to £1,000).

As outlined in the report, anticipated changes to the Environmental Authorisations (Scotland) Regulations 2018 will mean that it will potentially be easier for SEPA to target the right person effectively when it comes to flytipping offences. However, other enforcement agencies such as local authorities would still be tied to the existing Section 59 notice and its limitations (e.g., where the notice can only be served on the occupier of the land, even if they did not deposit the waste and the person who did is known). This could lead to instances where SEPA has to be brought into investigations to issue notices because local authorities cannot. As such consideration should be given to the equalisation of powers between enforcement agencies to ensure a consistent approach across agencies and the powers they have at their disposal.

• Recommendation 12: develop a broader ‘removal of waste’ power for local authorities given they are at the forefront of flytipping enforcement to ensure an equalisation of powers between enforcement agencies.

In addition, given flytipping offences are closely linked to duty of care (householder and business) it could be beneficial to give local authorities powers for duty of care offences, again creating a more consistent approach across key enforcement agencies.

• Recommendation 13: engage with local authorities to consider the benefits (and challenges) of the introduction of FPN powers for local authorities for duty of care offences, for both businesses and householders.

It is recognised that cleaning up flytipping often rests with the landowner and that this can be costly. Court sentencing powers were introduced in 2014 to make a compensation order in relation to Section 33 offences in an attempt to address the compensation issue. However, the calculation of compensation required for landowners is complex and may sit best with the courts, rather than individual enforcement bodies as it may not be appropriate for enforcement bodies to be brought into disputes around levels of compensation. Despite this challenge, this is an area that some stakeholders felt could be a useful tool, so would be worth further exploring in the future.

In addition, the Integrated Authorisation Framework, once implemented for waste, allows for the recovery of costs. An example would be where SEPA has required the removal of the waste and then had to arrange for it to be removed themselves when the offender fails to do so. SEPA can also recover any compensation they have paid to the landowner, but only in relation to access to the land or damage caused. The Integrated Authorisation Framework notice will replace existing Section 59 powers (Environmental Protection Act 1990) for SEPA, but local authorities will continue to only have access to Section 59 notices.

The consultation on a new National Litter and Flytipping Strategy^[183] asked respondents whether they supported exploring the possibility and benefits of enabling local authorities and national parks to use civil penalties to enforce flytipping offences. 88% of respondents replying to this question answered ‘yes’. Examples of civil penalties include civil penalties or other financial payments as a remedy for damages. Civil penalties do not operate as an alternative to prosecution, and can generally be recovered as a civil debt. This was also raised by a few stakeholders as an area that could strengthen the current enforcement model with the perception being that evidence requirements may be less strict. The Scottish Government’s Consultation on National Litter and Flytipping makes the point however ‘that in line with the Lord Advocate’s guidelines 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’^[184]. The Prosecution Code^[185] provides further detail on the legal considerations involved here.

SEPA is already able to issue civil penalties. In addition to the possible use of civil penalties, the use of a more collaborative approach to tacking flytipping (and littering) offences has proved to be beneficial, as seen in North Ayrshire. The use of non-legislative tools, which give enforcement bodies the flexibility to approach offences using local knowledge and networks has proven to be effective and should be promoted further in line with the proposed Enforcement Manual to ensure a level of national consistency.

• Recommendation 14: further explore the use of civil penalties for flytipping offences by local authorities and Loch Lomond and the Trossachs National Park Authority and whether this could add to the suite of existing powers on offer to enforcement bodies.
• Recommendation 15: as with littering, further promote (e.g., through a future Enforcement Manual) the use of non-legislative tools at enforcement bodies’ disposal for flytipping offences to help reduce re-offending by making offenders think about the act of flytipping.

One of the main themes emerging from the project was the feeling that there is a lack of intelligence sharing amongst enforcement bodies. Systems need to become more connected, and there needs to be more of a collaborative approach to sharing intelligence, and best practice, nationally. In addition to information sharing across enforcement bodies and the Flytipping Forum, greater collaboration across bodies such as the DVLA and trading standards could help create access to, where possible, publicly owned systems which have integrated data capture. SPARC fulfils this data and information sharing function somewhat for rural stakeholders and landowners and has proved to be really effective in encouraging collaboration and intelligence sharing, and there are learnings that could be taken from SPARC’s successful approach.

• Recommendation 16: look to further promote intelligence sharing between enforcement bodies, and others, to help build a more effective enforcement model. This recommendation will require ownership to be taken forward.

While CoPLaR places a duty on certain statutory bodies to keep land clear of litter and refuse, it is not a statutory duty for enforcement bodies to investigate flytipping cases. However, making it a statutory duty does not solve the underlying issues around resource and evidence needs and may actually drive behaviour to focus on cases that are easier to investigate. As such making it a statutory duty for local authorities to investigate flytipping cases is not put forward as a recommendation at this time. Investment is instead needed to equip enforcement agencies (particularly local authorities) with adequate resource and tools to take forward investigations and enforcement action as per Recommendation 1.

Addressing flytipping by waste criminals and businesses disposing of waste incorrectly (e.g., small or transit van load)

Stakeholder engagement and evidence reviewed has indicated that a proportion of flytipping is carried out by businesses posing as registered waste collectors. Such individuals and businesses often advertise on social media and digital marketplaces and offer householders competitive prices to dispose of household items (e.g., from house renovations). They do this by undercutting legitimate collectors by avoiding waste disposal charges. It is recognised that planned reforms to the waste carrier’s system will influence this and how enforcement agencies can capitalise on these changes.

SEPA uses social media to directly target individuals looking to dispose of household waste, and businesses offering waste collections, and focus on websites such as Facebook Marketplace and Gumtree^[186]. Despite this, one of the main challenges with restricting access to the market for unlicenced waste carriers is online marketplaces.

In order to limit access to the market stronger responsibility needs to be placed on such sites. Those advertising their services should be checked for the appropriate licences, however, while this could prove effective for tacking illegitimate traders offering services through dedicated waste management services marketplaces it would be more challenging for less formal marketplaces (e.g., Gumtree, Facebook Marketplace) who receive significant volumes of traffic from “man with a van” type operators. As such two recommendations are put forward.

• 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.
• 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.

Stakeholder engagement suggested that in a lot of cases householders and businesses are not aware of the importance of passing waste to legitimate and registered waste carriers. National messaging could help to promote this. Messaging should clearly outline the importance of duty of care to householders, and legal requirements for business waste producers. To ensure benefits are seen, it is important to quantify the impact that national messaging has (e.g., before and after surveys of householders on the requirement to check for a waste carrier licence).

• Recommendation 19: carry out clear and consistent national messaging and public education on the importance of householders and businesses checking their waste carriers are registered, legitimate businesses, and how to carry out such checks.

While education will pay a role in raising awareness of householder and businesses responsibilities when it comes to using legitimate waste carriers, stronger action which looks to minimise access to the market is likely required to combat businesses that try to enter the market to undercut their competitors. Cost is often a good indicator, but this is not always the case. Speed and convenience are also key factors with recent evidence pointing to people being willing to pay a premium to make waste ‘disappear’^[187]. The objective would be to minimise access to the market as a key ‘enabler’ of flytipping.

• 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.

Planned reforms to the waste carrier’s system will likely influence the recommendation outlined above and how enforcement agencies can capitalise on these changes.

A future area of research (which is out with the scope of this report) would be to review to what extent flytipping is an entry point to other crime. There is already some understanding (or intelligence) nationally that unauthorised waste collection businesses may be linked with crime groups, with many being owned or funded by serious organised crime groups^[188]. Getting a waste carriers registration is currently an easy entry point to the waste market for unscrupulous operators, and it would be interesting to review whether flytipping (and other waste crime) is a gateway to further criminality.

Addressing large scale flytipping carried out by waste criminals (e.g., large and/or multiple loads)

As outlined throughout the report the level of the penalty is often not comparable to the financial benefit of carrying out the offence to act as a deterrent. This is especially true for waste criminals and businesses disposing of considerable amounts of waste illegally and profiting at the expense of legitimate business and communities.

In the consultation on the new National Litter and Flytipping Strategy^[189], the proposal to explore raising current fixed monetary penalties that can be issued by SEPA received support from 85% of respondents answering the question. While there was some support for this from stakeholders interviewed as part of the project, SEPA has the option of using the VMP for crimes where the £600 FMP is deemed insufficient. Given SEPA has flexibility to use the higher VMP over the £600 FMP, increasing the level of the FMP is not put forward as a recommendation.

Defra, and the devolved administrations, have indicated that there are plans to introduce mandatory digital waste tracking across the UK. This would greatly increase visibility of what is happening to the waste produced in the UK and reduce the ability for waste criminals to operate and undercut legitimate businesses through their systemic mishandling of waste, illegal exports, and flytipping^[190]. Future digital waste tracking, where waste producers play an active role in the duty of care for their waste, has the potential to improve transparency and prevent abuses to the system. While not a specific recommendation for this report, Anthesis considers it important that mandatory digital waste tracking is progressed.

Stakeholders engaged as part of this project highlighted that once a flytipping incident has been identified, there are three stages to successful enforcement – identifying the offender/criminal, collecting robust evidence, and then presenting the case file to legal experts/prosecutors. This process is time consuming and resource intensive for enforcement bodies, so there may be a reluctance to pass reports to COPFS unless there is a high likelihood of a successful conviction, which as outlined earlier is dependent on the sufficiency of evidence. While outside the specific scope of this project, internal reviews could help to understand the costs of cases versus the value of action, with a potential area for future research being to carry out a detailed review of the cost-benefit to enforcement bodies of issuing FPNs and taking forward prosecutions.

Improving flytipping data

It is challenging to understand the national picture for flytipping occurrences. Data is collected via multiple channels, meaning information on cases is spread over different platforms/systems. In addition, it is not a statutory requirement for duty bodies to report cases, resulting in flytipping instances not being reported. This makes it challenging to fully understand the issue with flytipping in Scotland and the scale of the problem.

It is not a statutory requirement for enforcement bodies to report on and publish the number of FPNs issued, paid and passed on for further prosecution for both litter and flytipping offences. The lack of reporting and national data makes it challenging to quantify the scale of the problem and the impact of enforcement activity.

Stakeholders interviewed as part of the project highlighted that flytipping on private land is a particular challenge, with instances often going unreported, again making it difficult to understand the full impact of the problem. Further consideration is needed on the best solution for private land to ensure instances on private land are comprehensively reported and the issue of flytipping on private land is reflected in the national picture.

While not directly related to the enforcement model, making changes to the way in which data is collected, recorded, and reported will help to demonstrate the scale of the problem. This could help increase the priority of flytipping for enforcement bodies and others, informing decisions on the allocation of resources. While SEPA is required to publish information about enforcement action taken under the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015, local authorities are not required to do so. More consistent and regular recording of enforcement investigations and outcomes would allow for a better reflection of the national picture and an understanding of trends.

• Recommendation 21: as discussed in the consultation for a new 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.
• Recommendation 22: as suggested in the consultation on a new 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.
• Recommendation 23: further consider the benefits and disadvantages of making it a statutory duty versus a collective agreement for enforcement bodies to report consistently on flytipping instances and the number of enforcement actions taken (e.g., FPNs issued, paid and reports passed on for prosecution).

Regardless of the approach to collecting flytipping data (instances) there may need to be a central body that quality checks the data submitted and queries any anomalies in the data (National Fly-Tipping Wales carries out this role in Wales, reviewing Waste Data Flow submissions and collating findings).

• Recommendation 24: report annually on Scotland-wide figures for flytipping (with detail on regional variations – it is recognised that the ability to do this is closely linked to Recommendation 23).