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The legal response to safeguarding local environmental quality
Published online by Cambridge University Press: 02 January 2018
Abstract
Local environmental quality is best understood as a measure of the aesthetic complexion of public space in the urban environment. Anti‐social acts causing damage to the physical environment of local communities have, traditionally, attracted little moral opprobrium; and the role of local authorities in safeguarding local environmental quality has been undervalued. However, this is an issue that has been proven to have a significant impact on the quality of life of local communities, particularly those in deprived neighbourhoods. This paper argues, therefore, that we need to develop a comprehensive legal framework to safeguard local environmental quality in the future. This problem has so far been tackled as nuisance, local environmental crime or anti‐social behaviour. The paper concludes that an approach based on measures to tackle incivility in society is to be preferred; thus, the Anti‐social Behaviour, Crime and Policing Act 2014 will be particularly significant in this regard. However, some amendments to this legislation will be required to ensure its effective application to the problems of local environmental quality. Further measures should also be taken to support citizen participation and education as part of a comprehensive legal framework for safeguarding the local environment.
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- Research Article
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- Copyright © Society of Legal Scholars 2015
Footnotes
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I would like to thank Stuart Macdonald, Mark Stallworthy, Andrew Millie, Patrick Bishop and the anonymous referees for their comments on previous drafts of this paper. However, I take full responsibility for any errors or omissions.
References
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42. Environmental Protection Act 1990, s 93. Street litter control notices could be imposed on premises with a frontage on the street where the pavement outside, or adjacent to open land, was continually defaced by litter resulting from the activities of those premises.
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53. Crime and Disorder Act 1998, s 1.
54. This is punishable by up to 5 years' imprisonment (in the case of adults) or a detention and training order of up to 24 months' duration (in the case of under-18s).
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56. See further Home Office A Guide to Anti-Social Behaviour Orders and Acceptable Behaviour Contracts (London: Home Office Communication Directorate, 2003); available at http://www.homeoffice.gov.uk/anti-social-behaviour/penalties/acceptable-behaviour-contracts (accessed 29 April 2015).Google Scholar
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62. Criminal Justice and Police Act 2001, s 1.
63. Anti-social Behaviour Act 2003, s 30.
64. See above 17, 0041, 0042.
65. This was the conclusion of the House of Commons Environmental Audit Committee on the crimes of fly-tipping, fly-posting, litter graffiti and noise. These were described as ‘low level’ crimes that nevertheless have ‘an enormous impact upon the local environment’ and that are ‘seen as a particular area of concern by very many communities across the country’. Environmental Audit Committee, above 11, p 7.
66. Respect and Responsibility – Taking a Stand Against Anti-social Behaviour Cm 5778 (London: Home Office, 2003). This also later became an essential element of its policy on sustainable communities. See furtherGoogle Scholar Securing our Future (London: Department of Food and Rural Affairs, 2005) ch 6.Google Scholar
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72. Ibid, p 11.
73. Ibid.
74. Living Places, above 1. This review and the increase in local authority regulatory powers in this area were welcomed by the House of Commons Select Committee on Housing Planning Local Government and the Regions.
75. Respect and Responsibility , above 66.
76. Environmental Audit Committee, above 11. These issues were highlighted in the more general report by the Environmental Audit Committee, above 43.
77. The act of graffiti was an offence under a number of different pieces of legislation, primarily the Criminal Damage Act 1971 and the Highways Act 1980. Fly-posting was an offence under the Town and Country Planning Act 1990 and statutory offences relating to noise date back to the Noise Abatement Act 1960.
78. The Anti-social Behaviour Act 2003 extended the use of FPNs to graffiti and fly-posting (s 43).
79. Anti-social Behaviour Act 2003, s 48 and Clean Neighbourhoods and Environment Act 2005 ss 31 and 43, respectively.
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82. See further Clean Neighbourhoods and Environment Act 2005: dog control orders (ss 55–67), abandoned vehicles (ss 10–14) and audible intruder alarms (ss 69–81). FPNs were later also applied to offences committed under local authority by-laws by the Local Government and Public Involvement in Health Act 2007.
83. See Home Office website, in 2010; available at http://webarchive.nationalarchives.gov.uk/20100405140447/http://asb.homeoffice.gov.uk (accessed 29 April 2015).
84. See, for example, the use of CCTV by Preston Council, where images were posted on the Internet in the hope that local people would ‘shop’ those filmed littering. ‘Crackdown on litter outs reaps success’ Lancashire Evening Post 3 February 2014. Another example is the time-limited ‘crackdown’ by Swansea City Council involving a private enforcement company rather than their own officers. ‘Swansea's crackdown on dog fouling and litter’ South Wales Evening Post 16 September 2013.
85. Crime and Disorder Act 1998, s 6.
86. Crime and Disorder Act 1998, s 1. See 0053 above.
87. The phrase ‘alarm, distress or harassment’ was initially used in Public Order Act 1986, s 5. This section has the title ‘Harassment, alarm and distress’ and the offence under s5(1)(a) is to use threatening, abusive or insulting words or behaviour, or disorderly behaviour. This replaced a previous offence under the Public Order Act 1936 aimed at addressing the use of threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace.
88. For example, the work of Banksy now demands great sums of money. Furthermore, some academics have lamented the demise of posters in advertising as an important art form. Frost, M et al The Rise and Fall of the Poster: Street Talk (Mulgrave, Victoria: Images Publishing Group, 2006) p 32.Google Scholar
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92. This includes the imposition of ASBOs for wildlife offences. For example, the first wildlife ASBO was imposed on a person convicted for the theft of rare bird eggs, preventing him from travelling to Scotland for 10 years. ‘Egg collector given ASBO preventing travel to Scotland’ BBC News 24 February 2012; available at http://www.bbc.co.uk/news/uk-scotland-17160830 (accessed 19 April 2015). An ASBO was also imposed on a man involved in a number of poaching and hare coursing incidents. ‘Stokesley poacher is given an ASBO’ Gazette Live 4 August 2011; available at http://www.gazettelive.co.uk/news/local-news/stokesley-poacher-given-asbo-3691582 (accessed 29 April 2015). They have also been sought in cases of off-road motorcycling in the countryside. See further Jenkins, V and Macdonald, S ‘Keeping off-roaders on track: addressing the misuse of off-road vehicles in urban and rural settings’ (2010) J Planning & Envtl L 1–124 Google Scholar.
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98. Labour Party, above 48.
99. The penalty for breach of an ASBO is up to 5 years' imprisonment, but custodial sentences cannot be imposed for breach of SNOs or litter orders.
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111. Crime and Disorder (Formulation and Implementation of Strategy) Regulations 2007/1830, Reg 7(e).
112. Ibid., Reg 12.
113. This is a reference to the terminology used by Crawford, above 60.
114. See, for example, the requirement in the Local Government Act 2000, s 4 for local authorities, in England, to create a sustainable communities strategy after consulting and seeking the participation of other relevant parties. See further Jenkins, V ‘Learning from the past: achieving sustainable development in the reform of local government’ (2002) Pub L 130–151.Google Scholar
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121. These are examples of orders with reference to public space, but others were directed at activities on premises, such as closure orders and crack house closure orders. Putting Victims First, above 120, p 24.Google Scholar
122. Ibid. Also of some significance to local environmental quality were dog control orders and noisy premises closure orders.
123. Anti-social Behaviour, Crime and Policing Act 2014, s 43(1). The individual must be over 16. CPNs must state that the individual stop doing, or do, specified things or take reasonable steps to achieve specified results (s 43(3)). They must also be aimed at preventing or reducing the effect of recurring behaviour or the risk of this (s 43(4)).
124. A PPSO can prohibit specified things being done in the restricted area, and be directed at all people or specific categories of people; and can also be time limited if necessary. Anti-social Behaviour, Crime and Policing Act 2014, s 59.
125. See discussion at 0105 above onward.
126. Although the possible fines for contravention of CPNs are higher in relation to individuals and can be substantially higher for businesses. The fine in respect of individuals contravening CPNs is up to level 4, but for a company the limit is £20,000 (Anti-social Behaviour, Crime and Policing Act 2014, s 48). It is clearly envisaged, therefore, that CPNs might also be applied to businesses, which is important in addressing, for example, fly-posting and fly-tipping. The fine for contravention of PPSOs is up to level 3. Anti-social Behaviour, Crime and Policing Act 2014, s 67.
127. Anti-social Behaviour, Crime and Policing Act 2014, s 47.
128. See above 21.
129. See above 34. The power to issue by laws under the Local Government Act 1972 is made with reference to the need to ensure the ‘good rule and governance ‘of the local area.
130. Anti-social Behaviour, Crime and Policing Act 2014, ss 59 and 70, respectively.
131. Explanatory Notes to the Anti-social Behaviour, Crime and Policing Act 2014.
132. Anti-social Behaviour, Crime and Policing Act 2014, s 53.
133. See above 85.
134. See above 21. Note, however, that SNOs can be sought before the courts by individuals, whereas CPNs cannot. See above 17.
135. See further Lowndes, V and Pratchett, L ‘Local governance under the Coalition government: austerity, localism and the “Big Society” ’ (2012) 38(1) Local Gov't Stud 21. The centrepiece of this policy is the Localism Act 2011, which provides new ‘community rights’ with respect to neighbourhood planning, buying local assets and even challenging local government to provide services.CrossRefGoogle Scholar
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137. See further Empowering Communities, Protecting Victims: Summary Report on the Community Trigger Trials (London: Home Office, 2013).Google Scholar
138. Anti-social Behaviour, Crime and Policing Act 2014, s 104(1).
139. Ibid, s 104(4)–(5).
140. This was considered particularly important by the Home Affairs Select Committee in their pre-legislative scrutiny of the Act ( Home Affairs House of Commons Select Committee The Draft Anti-social Behaviour Bill: Pre-legislative Scrutiny. Twelfth Report of Session 2012–13 HC 836-I (London: The Stationery Office, 2013).Google Scholar
141. See further Empowering Communities, above 138.
142. Anti-social Behaviour, Crime and Policing Act 2014: Reform Of Anti-Social Behaviour Powers: Statutory Guidance for Frontline Professionals (London: Home Office, 2014).Google Scholar
143. Anti-social Behaviour, Crime and Policing Act 2014, s 101(2). The sanctions must have the purpose of: (a) assisting in the person's rehabilitation; (b) ensuring that the person makes reparation for the behaviour or offence in question; or (c) punishing the person (Anti-social Behaviour, Crime and Policing Act 2014, s 101(3)).
144. Anti-social Behaviour, Crime and Policing Act 2014, s 101(5). A community representative is defined as any individual or body appearing to represent the views of people who live in, work in or visit the area (s 101(9)).
145. Anti-social Behaviour, Crime and Policing Act 2014, s 102(1)–(2).
146. Ibid, s 102(3).
147. Ibid, s 102(6).
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150. See, for example, Ashworth, who demands ‘further debate about and the division of functions between state, victims, offenders and communities: and far greater emphasis upon procedural safeguards’. Ashworth, A ‘Responsibilities, rights and restorative justice’ (2002) Br J Criminology 578. Duff also argues that ‘offenders should suffer retribution for their crimes: but the essential purpose of such punishment should be to achieve restoration’.CrossRefGoogle Scholar Duff, R ‘Restorative punishment and punitive restoration’ in Walgrave, L (ed) Restorative Justice and the Law (Cullompton, UK: Willan, 2002) p 82.Google Scholar
151. Burney, E ‘Talking tough, acting coy: what happened to ASBOs?’ (2002) 41(5) Howard J Crim Just 469.CrossRefGoogle Scholar
152. See further Boyd, C ‘Expanding the arsenal for sentencing environmental crimes: would therapeutic jurisprudence and restorative justice work?’ (2007) 32 Wm & Mary Envtl L & Pol'y Rev 483.Google Scholar
153. See further Crawford, A and Todd, R ‘Community justice’: transforming communities through restorative justice’ in McLaughlin, E et al (eds) Restorative Justice: Critical Issues (London: SAGE Publishing, 2003) p 215, at p 216.Google Scholar
154. See eg Crawford, above 60.
155. A Crawford ‘The state, community and restorative justice: heresy, nostalgia and butterfly collecting’ in Walgrave, above 151, p 101, at p 120.
156. See further Braithwaite, above 150.
157. Anti-social Behaviour, Crime and Policing Act 2014, s 102(5). In this subsection, it is recognised that there may be more than one victim and they may have differing views on the appropriate remedy.
158. Anti-social Behaviour, Crime and Policing Act 2014, s 1.
159. This was argued by Macdonald, S and Hoffman, S ‘Should ASBOs be civilized?’ (2010) 6 Crim L Rev 457.Google Scholar
160. That is, as conduct that has caused, or is likely to cause, harassment, alarm or distress to any person. Anti-social Behaviour, Crime and Policing Act 2014, s 2. The Coalition government was committed to defining anti-social behaviour in broad terms stating that ‘(it) remains a useful concept that focuses the police and other local agencies on the issues that matter most to people's daily lives …’ More Effective Responses to Anti-Social Behaviour (London: Home Office, 2011) p 8.Google Scholar
161. Anti-social Behaviour, Crime and Policing Act 2014, s 22.
162. Ibid, s 30.
163. Ibid, ss 3 and 24. In deciding what requirements to include in the order, the court must consult this individual/organisation as to their suitability and enforceability.
164. Hodgkinson and Tilley, above 109, at 295.
165. Ireland, S ‘ASBOs are dead, long live ASBOs’ (2011) 86 Crim Just Matters 26.CrossRefGoogle Scholar
166. Ibid, p 27.
167. Anti-social Behaviour, Crime and Policing Act 2014, s 1. They may also be sought by Natural Resources Wales, in Wales.
168. See above 91.
169. See above 85.
170. See further Crawford, above 60.
171. See further Stanton, J Democratic Sustainability in a New Era of Localism (London: Routledge, 2014). There is also wide-ranging commitment the importance of participation in decision making on more mainstream concerns in environmental protection, such as pollution. In this context, participation is considered important in improving the quality of decision making by eliciting public values to inform decisions in an age of scientific uncertainty and adopt a problem solving approach.CrossRefGoogle Scholar Lee, M and Abbot, C ‘The usual suspects? Public participation under the Aarhus Convention’ (2003) 66 Mod L Rev 80.CrossRefGoogle Scholar
172. See further Stanton, above n 172.
173. On restorative justice as a deliberative process, see further Braithwaite, above 150, p 45. On the educative nature of such deliberative processes see further Young, I ‘Communication and the other’ in Benhabib, S (ed) Democracy and Difference (Princeton, NJ: Princeton University Press, 1996) p 34 Google Scholar.
174. This quote is taken from Holder, who discusses the concept in relation to the deliberative process involved in environmental assessment. Holder, J Environmental Assessment: The Regulation of Decision Making (Oxford: Oxford University Press, 2004) p 197.Google Scholar
175. This was the conclusion of the House of Commons Select Committee on Housing Planning Local Government and the Regions in 2003. The Committee therefore encouraged support for groups such as Groundwork. Living Places, above 1.Google Scholar
176. As outlined above, the response to local environmental crime also drew on the experience of using FPNs for motoring offences. See above 44.
177. See further Stephenson, C et al Road Safety Research Report No. 115 (London: Department of Transport, 2010); andGoogle Scholar McKenna, F Behavioural Research in Road Safety: Seventeenth Seminar 2007 (London: Department of Transport, 2009).Google Scholar
178. Historically, some receipts from FPNs have also been retained by local authorities. See above 81.
179. See above 84.