QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
33 Bull Street
B e f o r e :
|BIRMINGHAM CITY COUNCIL||Respondent|
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Mr T Green appeared on behalf of the Respondent
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"The High Court may, if it thinks fit, cause the case to be sent back for amendment and, where it does so, the case shall be amended accordingly."
"(1) It shall be the duty of -
(a) each local authority, as respects any relevant highway... for which it is responsible...
to ensure that the land is, so far as is practicable, kept clear of litter and refuse...
(3) In determining what standard is required, as respects any description of land, highway or road, for compliance with subsections (1)... regard shall be had to the character and use of the land, highway or road as well as the measures which are practicable in the circumstances...
(7) The Secretary of State shall prepare and issue a code of practice for the purpose of providing practical guidance on the discharge of the duties imposed by subsections (1)...
(10) Any person subject to any duty imposed by subsection (1)... shall have regard to the code of practice in force under subsection (7) above in discharging that duty."
"(1) A magistrates' court may act under this section on a complaint made by any person on the ground that he is aggrieved by the defacement, by litter or refuse, of -
(a) any relevant highway...
(4) Proceedings under this section shall be brought against the person who has the duty to keep the land clear under section 89(1) above... as the case may be.
(5) Before instituting proceedings under this section against any person, the complainant shall give to the person not less than five days written notice of his intention to make the complaint and the notice shall specify the matter complained of.
(6) If the magistrates' court is satisfied that the highway or land in question is defaced by litter or refuse... the court may, subject to subsections (7) and (8) below, make an order ("a litter abatement order") requiring the defendant to clear the litter or refuse away or, as the case may be, clean the highway within a time specified in the order.
(7) The magistrates' court shall not make a litter abatement order if the defendant proves that he has complied, as respects the highway or land in question, with his duty under section 89(1)... above.
(9) A person who, without reasonable excuse, fails to comply with a litter abatement order shall be guilty of an offence and liable on summary conviction to a fine...
(12) Where a magistrates' court is satisfied on the hearing of a complaint under this section -
(a) that, when the complaint was made to it, the highway or land in question was defaced by litter or refuse... and
(b) that there were reasonable grounds for bringing the complaint,
the court shall order the defendant to pay such reasonable sum to the complainant as the court may determine in respect of the expenses incurred by the complainant in bringing the complaint and the proceedings before the court."
"I refer to recent e-mails regarding the above matter. As you are aware, the duty on the Local Authority to ensure that land is kept clear of litter and refuse stems from section 89 of the Environmental Protection Act 1990. The duty, however, is only "so far as is practicable" and is not therefore an absolute duty. I am aware that the department has a robust procedure in place for responding to reports of refuse/litter and am assured that these are being adhered to. The department would be willing to meet you to discuss the issue, however, if you feel that this would be beneficial."
That e-mail was from the Council's senior solicitor in the criminal and regulatory law team.
"'So far as practicable' relates in essence to the standard of cleanliness. In terms of the code of practice, all of the locations I have identified fall into the category of D; that is heavily affected by litter and/or refuse with significant accumulations. From paragraph 7.3, the presence of litter and/or refuse (and/or detritus where applicable) that is significant enough to form a few minor accumulations (grade C) or significant accumulations (grade D) is regarded as unacceptable."
He then continued:
"The fact is that the authority has a policy of leaving these accumulations of rubbish. I understand why. However, when you read the EPA 1990 together with the statutory code of practice, it is clear that this is failing the duty. I attach a copy of the relevant statutory code of practice. I don't need a meeting. What I need is to be told what is being done about the 338 grade D dumps of refuse that I have referred to the Local Authority in its function as a litter authority."
Accordingly, Mr Hemming declined the offer of a meeting.
"There was further discussion about a number of specific sites where refuse had been deposited which had been specifically identified at a directions hearing on 4 July. The Appellant had accepted in a witness statement filed by him that refuse had subsequently been cleared from those particular sites, but claimed that he had now identified several other sites where refuse had not yet been cleared. I ruled that the court could not consider those sites. The Appellant had first to give notice to the City Council and then issue a fresh application for an order in respect of those specific sites."
"I then proceeded to consider the cross applications for costs. The Appellant applied for costs pursuant to section 91(12). I was satisfied that at the time the complaint was made, the land in question was defaced by litter or refuse and accordingly, the Appellant met the first test under the sub-section. However, I was referred to correspondence between the Appellant and Defendant in which the City Council offered to meet him to discuss its policy of not removing garden refuse. The Appellant chose not to avail himself of that offer and instead issued proceedings. I concluded that that was unreasonable. I therefore refused to make an order for costs in his favour."
"D That the Appellant submitted that the proffered meeting was irrelevant to the reasonableness of his complaint about the complaint sites. Although he would have been informed about the planned clean up, the planned clean up did not in fact cause the complaint sites to cease to be defaced by litter.
E. The Appellant plausibly submitted that the complaint sites were only cleared as a result of his complaint being made and pursued after the directions hearing."
"Was I right to decide that the Appellant did not have reasonable grounds for bringing the complaint and that he did not therefore satisfy the test under section 91(12) (B)?"