Parish council guidance on the Clean Neighbourhoods and ...holbrookderbyshire.co.uk/gallery/parishcouncilguide.pdf · A summary of new powers for parish councils From April 2006,

Getting to grips with the CleanNeighbourhoods and EnvironmentAct 2005 – a parish council guide to environmental enforcement

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PB 11577a

If there is one issue that stands to affect allcommunities, it has to bepoor local environmentalquality. Our perceptions ofwhere we live, work and takeour recreation are formed by

the state of the immediate environment. It isshaped by how much litter there is on the street,how often we are confronted by abusive graffiti,whether or not our buildings are defaced byflyposting and, dare I say it, by how often a shoe finds its way into something unpleasant left behind by a dog!

But who is responsible for doing somethingabout it?

The answer is simple, all of us. Government, local authorities and the public all have a part to play. This is why we have introduced the newlegislation, by way of the Clean Neighbourhoodsand Environment Act 2005, to give localauthorities, a whole range of agencies and, forthe first time, parish councils new and improvedpowers to confront and hold to account those in the community that think they can use ourstreets as a bin.

As of 6th April 2006, parish councils will be able to take action against the litterer, theperson who daubs graffiti and those that illegallyflypost. Parish councils will also be able to use anew system of “dog control orders”, to bettermanage dogs in our public places and above allto take action against those that flout the law –to issue fixed penalty notices and to pursueoffenders through the magistrates’ courts.

This Guide, “Getting to grips with the CleanNeighbourhoods and Environment Act 2005 – a parish council guide to environmentalenforcement”, explains what these new

powers are, and specifically, how they can beused by parish councils. This Guide offers anhonest opinion on the effort, resources andcommitment that will be required by parishcouncils to turn the powers into action on the ground.

As you would expect, with the new powerscome responsibilities. This Guide explains thesein an open, honest and frank way – so thatthose who choose to use the powers do so in a professional, managed and consistent way.

From the outset it needs to be stated that thereis no expectation that every parish council willuse these powers. Thankfully, and in no smallpart due to the efforts of parish councils today,not all of the powers will be needed. However,where there are problems in a parish area, wherethere is community support and where a parishcouncil has the will, we hope that they are used.

And for those parish councils that choose not to use the powers, if nothing else, I hope thisGuide gets you thinking; thinking of ways thatyou might be able to better educate yourresidents, encourage your local authority to do more and to champion the campaign for abetter environment amongst your communities.

But more than anything else, can I encourageyou to read this Guide, digest its contents anddecide if these powers are going to work foryou; and, if they are, to use them and play anactive role in delivering what we all want – clean and safe environments.

Ben Bradshaw MPMinister for Local Environment, Marine and Animal Welfare

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A parish council guide to environmental enforcement

Ministerial Foreword

The importance of parishcouncils in delivering to anever-wider agenda is today asgreat as ever. We fulfil a vitalrole in making the placeswhere the people werepresent live better.

The fact that Government has seen fit to offerparish councils the powers that it has in theClean Neighbourhoods and Environment Act2005, is just yet more evidence of this.

That said, the powers in the Act are not going to be right for every parish council andGovernment has recognised that. Yet what thisGuide offers is a complete overview of thepowers, detailed guidance on how they can beused and when read, should leave the reader well placed to decide what powers they want toadopt and how they can go about using them.

For those parish councils that do decide to usethe powers, accept the advice that is offered anddo so in the knowledge that you will be makinga contribution by improving your areas for thecommunities you represent.

John FindlayChief executiveNational Association of Local Councils

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Getting to grips with the Clean Neighbourhoods and Environment Act 2005

Foreword from the NationalAssociation of Local Councils

Over the last two years, staff from Defra’s LocalEnvironmental Quality Divisionhave been regular speakers at our events.

They’ve done this to explain to parish clerks the

importance the Government places on localenvironmental quality, and in response, the new powers that it is giving to parish councils,through the Clean Neighbourhoods andEnvironment Act 2005. These powers will help us, where there is a need, to tackleenvironmental problems in the communitieswhere we work.

At the time, Defra made a commitment to usthat they would produce a comprehensive guideto explain the new powers and what a parishcouncil would need to consider before it couldtake enforcement action against those thatcommit litter, graffiti, flyposting or dog controlorder offences. This Guide is the realisation ofthat commitment.

It is clear that turning legislation into action isgoing to take time, effort and commitment from the parish clerk. Yet today, more than ever before, we have the skills and the ability to rise to this challenge.

So can I encourage you to read this Guide. If you feel, like the Society of Local CouncilClerks, that some, or all, of the powers the Actoffers are going to assist the work of your parishcouncil then use it as a tool to enable you toplay a constructive part in delivering the cleanstreets that we all want

Nick RandleChief executiveSociety of Local Council Clerks

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Foreword from the Society of Local Council Clerks

Clean Neighbourhoods and Environment Act 2005 – A summary of new powers for parish councils

Section One – Overview 10What is in this Guide? 11

Introduction 12

The powers 14

Table 1: Clean Neighbourhoods and Environment Act 2005 – Sections of relevance to parish councils 15

To enforce or not to enforce? 16

Enforcing the law 19

Questions and answers 20

Section Two – Implementing and managing an enforcementprogramme 22Introduction 23

Developing and agreeing an enforcementstrategy 24

What to include in an enforcement strategy 26


Section Three – Dog control orders and offences 34Introduction 35

Working with the district council – some of the rules 39

When to use dog control orders 40

Table 2: Dog control orders – What they are and when an offence applies 42

Making a dog control order 44

Signage 51

Revoking a dog control order 51

Amending a dog control order 53

Fixed penalty notices 53

Dog control orders – Other considerations 53


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Contents

Section Four – The offences and the law 58Introduction 59

Litter 59

Table 3: Litter – Legislation, definitions and penalties 60

Graffiti 63

Table 4: Graffiti – Legislation, definitions and penalties 64

When to use a fixed penalty notice for a graffiti offence 67

Removal powers 68

Flyposting 69

Table 5: Flyposting – Legislation, definitions and penalties 70

When to use a fixed penalty notice for a flyposting offence 74

Removal powers 74

Dog control order offences 75

Table 6: Dog control order offences –Legislation, definitions and penalties 76

Enforcing dog control orders 78

Litter, graffiti, flyposting and dog control order fixed penalty notices and early payment discount options 78

Fixed penalty notices – litter, graffiti and flyposting 79

Fixed penalty notices – dog control orders 79

Early payment options 80


Section Five – Enforcing the law 84Introduction 85

Identifying the right enforcement staff 86

The need for approved training 89

Authorising enforcement officers 89

Equipping an enforcement officer 92

What to include in a fixed penalty notice form 92

Enforcing against litter, graffiti, flyposting and dog offences 93

Applying the law 95

Health and safety considerations 102

Use of fixed penalty receipts 102

Recording and reporting 103

Using publicity as a deterrent 103


Section Six – Further information 106Introduction 107

Glossary 107

Contacts 111

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Clean Neighbourhoods and Environment Act 2005 – A summary of new powers for parish councilsFrom April 2006, the Clean Neighbourhoods and Environment Act 2005 will give parishcouncils a range of new powers to tackle environmental crime in their communities.

This Guide will set out the powers and explain how they can be used – should a parish council decide to use them. The powers are summarised below:

DescriptionPower

To make dog controlorders.

The Act gives parish councils the power to to make dog controlorders.

A parish council can make and apply dog control orders, to coverland in its area, making it an offence to:

• Fail to remove dog faeces;

• Not keep a dog on a lead;

• Not put, and keep, a dog on a lead when directed (told) to do so by an authorised officer;

• Permit a dog to enter land from which dogs are excluded(banned); and

• Take more than the specified (allowed) number of dogs (which a person may take) onto land.

To take enforcementaction against those that:

• Commit an offenceagainst a dog controlorder;

• Litter;

• Graffiti; and/or

• Flypost.

The Act allows parish councils to prosecute, in the magistrates’court, those that are suspected of committing an offence againsta dog control order, or who are suspected of having committed a litter, graffiti or flyposting offence.

As an alternative to prosecution in the magistrates’ court, the Act gives the power to parish councils to authorise staff to issuefixed penalty notices to alleged offenders as an alternative to prosecution.

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Section One – Overview

What is in this Guide?This Guide has been written for parish councilsto explain and to get to grips with the powersavaliable to them through the CleanNeighbourhoods and Environment Act 2005.

Whilst it is the intention for this Guide tobe as complete as possible, it cannot beconsidered as a full substitute for the Act,the formal explanatory notes and the fullguidance on the Act, which should also be referred to when using the powers at the local level.

Section One, gives an overview of the newpowers – an introduction. It includes adiscussion to help parish councils decide if thepowers are going to be of use to them, andultimately, to decide if they want to use thepowers or not – To enforce or not to enforce?It also discusses some of the practicalities ofusing the new powers and gives an overview of some of the considerations a parish councilwill need to take on board before using them– these are then further developed later in the Guide.

By the end of the first Section, readers shouldhave an understanding of the new powersand offences. With this knowledge theyshould then be in a position to decide if theyare going to be useful or not and whether to take them further and go down the routeof using them.

Section Two, Implementing and managing an enforcement programme, is included tohighlight the need for a full ‘enforcementstrategy’, which brings together the newpowers that a parish council may plan to use,

and to steer parish councils through theprocess of developing such a strategy. It setsout what it should contain, why it needs thepolitical support of a parish council’s membersand ultimately, through publicity, the supportof parish residents.

The role of an enforcement strategy is to helpa parish council plan effectively, should itchoose to use the powers, and so avoid thepotential pitfalls.

Section Three, Dog control orders andoffences, explains the new regime of dogcontrol orders; what they are, their impact onany current dog byelaws, how they can bemade, the fines available and how to set theright level of fixed penalty notice fine.

Section Four, The offences and the law,defines what litter, graffiti and flyposting are.It explains when a litter, graffiti and flypostingoffence has been committed, as well as whenan offence has been committed against a dogcontrol order. It also sets out the options forpunishing offenders and some of theconsiderations that need to be taken intoaccount when pursuing enforcement action.

This Section is all about defining the issuesand showing how the powers can be made towork in practice. It gives a range of practicaladvice on the powers, such as when to usethem and when not to.

Section Five, Enforcing the law, explains thepracticalities of enforcing against litter, graffiti,flyposting and dog offences. From identifyingand recruiting suitable staff and theirsubsequent authorisation, through to theproper recording of evidence and taking the

IntroductionGetting to grips with the Clean Neighbourhoodsand Environment Act 2005 – a parish councilguide to environmental enforcement

The Clean Neighbourhoods and Environment Act2005, is a new piece of Government legislationthat will help make where we all live, work andenjoy our recreation better places.

The Act introduces a range of new powers todeal with litter, flyposting, graffiti, abandonedand nuisance vehicles, as well as new powers to deal with a range of dog offences, includingdog fouling.

For the first time, this Act gives parish councilsthe power to issue ‘fixed penalty notices’ to those that drop their litter, put up illegaladvertisements (flypost) or daub graffiti and, inaddition, to those who flout the law in relationto a number of offences that can be controlledby a new system of dog control orders.

The Act replaces the previous system of dogbyelaws with ‘dog control orders’, which canbe ‘made’ by authorities, including parishcouncils, to cover land in their area. The offencesthat can be enforced include fouling by dogs,keeping of dogs on leads, the exclusion of dogs

and limits on the number of dogs that can be ‘walked’ by any one person.

It is important to remember that the newpowers that this Guide describes are justthat – they are powers and not duties. A parish council can choose to use some, all or none of the powers. The decision restssolely with the individual parish council – no one, including the Government, canmake a parish council use the powers if it does not want to.

The aim of this Guide is to help parish councilsdecide if they want to take up any of thepowers, by describing what they are and howthey are intended to work on the ground, not to mention the resources that will be required.Further, if a parish council decides that it doeswant to use the powers, the Guide will take itthrough the processes and procedures that willneed to be followed.

From the outset, it needs to be understood that in choosing to adopt some or all of thesepowers, a parish council will need to go in withits eyes open; using the new powers will taketime and money – in short a great deal of effort.

By the very nature of the way that laws aredeveloped in this country, interpreting thelegislation is never easy; this Guide will help, yet it should never be seen as an easy short cut.

It also needs to be remembered that enforcement,for example, issuing fixed penalty notices, willnot be a solution in its own right when takingon the problems of littering, graffiti or flyposting.Enforcement can only ever be part of the answer.

Public education has an equal part to play;talking about the problems, putting up posters orplacing articles in newspapers can all be effectivein changing the way that some people behave

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more serious cases, and cases of non-paymentof fixed penalty notices, to the magistrates’court – and the steps in between.

Section Six, Further information, includes a full list of contacts of organisations thatcan help with further advice and support. It also contains a glossary, which defines and explains some of the main terms in this Guide.

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SignpostingThroughout this Guide there will be manyreferences to the Clean Neighbourhoods andEnvironment Act 2005 and a number of

supporting documents. It is important thatthese publications are referred to. The tablebelow provides details of these key documentsand where they can be obtained.

Where a copy can be obtainedPublication

Clean Neighbourhoods andEnvironment Act 2005

Explanatory Notes – CleanNeighbourhoods andEnvironment Act 2005

View online at: www.opsi.gov.uk/acts/acts2005/20050016.htm

View online at:www.opsi.gov.uk/acts/en2005/2005en16.htm

Order

Online at:www.tso.co.uk/bookshop

Mail, telephone, fax and email:

TSOPO Box 29, Norwich NR3 1GN

Telephone orders: 0870 600 5522Fax orders: 0870 600 5533Email: [email protected]

Guidance on the CleanNeighbourhoods andEnvironment Act 2005

View online at: www.defra.gov.uk/environment/localenv/legislation/cnea

Mail and telephone:

Defra PublicationsAdmail 6000, London SW1A 2XX

Telephone orders: 08459 556000

and go someway to reducing these problems inour communities. A Parish Plan is an alternativeway to involve a community in addressing a range of issues, including local environmentalquality. So, regardless of whether a parish council decides to enforce or not, it shouldalways consider how it can play its part in educating and working with the public.

This Guide should make the process easier incoming to the initial decision as to whether thepowers are needed or not and how they can beplanned for and used. If, that is, a parish councildecides to use them.

The powersThe Clean Neighbourhoods and Environment Act 2005, taken as a whole, creates a number of new and amended powers to tackleenvironmental crime in our communities –amongst other things, to help reduce theamount of litter on the street, dog mess in our parks and graffiti in our bus shelters.

Many of the powers in the Act are not powersthat can be used by parish councils – forexample, the powers relating to nuisance andabandoned vehicles, fly tipping, waste and noise. As a result, not all of the Act will be of relevance to parish councils.

Table 1 identifies where the Act gives newpowers to parish councils, through newlegislation, and where the Act has amendedother Acts of Parliament, such as theEnvironmental Protection Act 1990 and the Anti-social Behaviour Act 2003, so as to give parish councils similar powers to enforce against certain environmental crimes, which district councils already had.

It is important that anyone wishing to use thesepowers refers to the relevant sections of theClean Neighbourhoods and Environment Act2005 and also the other Acts of Parliament thathave been amended as a consequence.

To aid further the process of understanding thepowers, a set of Explanatory Notes has beenproduced, as has a series of Guidance booklets,including those that cover litter, dog controlorders and fixed penalty notices. The details of how to obtain a copy of the ExplanatoryNotes and the Guidance booklets have alreadybeen given.

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A new system of dog control orders.

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Table 1: Clean Neighbourhoods and Environment Act 2005 – Sections of relevance to parish councils

Litter Parish councils canprosecute those suspectedof committing a litteringoffence or offer a fixedpenalty notice as analternative to prosecutionin a magistrates’ court.

PART 3: LITTER AND REFUSE – Offence of dropping litter

• Section 18 – Extension of litter offence to all openplaces

• Section 19 – Litter offence: fixed penalty notices

• Section 24 – Fixed penalty notices: commonprovisions

• Section 27 – ‘Litter’

As read with the provisions of the EnvironmentalProtection Act 1990 that these sections amend.

What this means forparish councils

Power Where can I find more information in the CleanNeighbourhoods and Environment Act 2005?

Graffiti Parish councils canprosecute those suspectedof committing a graffitioffence or offer a fixedpenalty notice as analternative to prosecutionin a magistrates’ court.

PART 4: GRAFFITI AND OTHER DEFACEMENT – graffiti and flyposting

• Section 28: Fixed penalty notices: amount of fixed penalty

• Section 29: Fixed penalty notices: power to require name and address

• Section 30: Fixed penalty notices: authorised officers

As read with the provisions of the Anti-socialBehaviour Act 2003 that these sections amend.

Flyposting Parish councils canprosecute those suspectedof committing a flypostingoffence or offer a fixedpenalty notice as analternative to prosecutionin a magistrates’ court.

PART 4: GRAFFITI AND OTHER DEFACEMENT – graffiti and flyposting

• Section 28: Fixed penalty notices: amount of fixed penalty

• Section 29: Fixed penalty notices: power to require name and address

• Section 30: Fixed penalty notices: authorised officers

As read with the provisions of the EnvironmentalProtection Act 1990 that these sections amend.

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What this means forparish councils

Power Where can I find more information in the CleanNeighbourhoods and Environment Act 2005?

Dogcontrolorders

Parish councils can make a range of ‘dog controlorders’ (for failing toremove dog faeces; notkeeping a dog on a lead;not putting, and keeping, a dog on a lead whendirected to do so by anauthorised officer; forpermitting a dog to enterland from which dogs areexcluded; and for takingmore than a specifiednumber of dogs onto land)and prosecute thosesuspected of committing an offence against them ina magistrates’ court oroffer a fixed penalty noticeas an alternative toprosecution.

PART 6, Chapter 1: DOGS – Dog control orders

• Section 55: Powers to make dog control orders

• Section 56: Dog control orders: supplementary

• Section 57: Land to which Chapter 1 applies

• Section 58: Primary and secondary authorities

• Section 59: Fixed penalty notices

• Section 60: Amount of fixed penalties

• Section 61: Power to require name and address

• Section 62: Community support officers

• Section 63: Overlapping powers

• Section 64: Byelaws

• Section 65: Dogs (Fouling of Land) Act 1996

Defining a district councilFor the purposes of the CleanNeighbourhoods and Environment Act2005, and consequently this Guide, a districtcouncil includes those district councils thatoperate under county councils, and wherethere is no county council, the unitaryauthorities, which often cover the moreurbanised parts of the country.

To enforce or not to enforce?To use the Powers in the Act will take time,money and resources. It is important from theoutset that any parish council looking to use thepowers considers the questions below.

The decision whether to use the powers or notrests solely with the parish council. Despite thisthere might be pressure from residents to seethe powers used.

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So regardless of whether a parish council decidesto use the powers or not, it is sensible for it toconsider the questions below, before deciding a way forward.

Is there a proven need to adopt the powers?If, for example, there is little or no litter, graffitior flyposting to be found across a parish areathen there is not much to be gained fromadopting the powers.

A good way to come to a conclusion is to spendsome time walking the parish and seeing justhow much litter can be found. At the same time, see if anyone is witnessed dropping litter,allowing their dog to foul or putting up an illegaladvertisement (flyposting). If these acts are notwitnessed, then any parish council should beasking if there is actually any need to use the powers.

Another way of gauging ‘need’ is by asking thedistrict council if it can provide any informationon the amount of litter found in the parishcouncil’s area. District councils undertake regularsurveys, known as Best Value PerformanceIndicator 199 surveys and, through anyinformation that these provide, comparisons canbe made with other parishes across the district.If a parish compares favourably, then all isprobably well; if not, this could be a sign thatsome form of action might be needed.

As an example, one conclusion from any fact-finding exercises might be that whilst a litterproblem might be found in a parish, there maybe very little graffiti or flyposting. If this is thecase, then the sensible course of action wouldbe to enforce against litter, whilst not pursuingenforcement against the other issues.

Is there the full support of the parish council?Given that the powers, if used, could see fixedpenalty notices being offered to residents of a parish, and should they fail to pay, those veryresidents could end up in the magistrates’ court,any proposals to use the powers should have the full backing of the parish council.

Further, the parish council should be aware ofthe commitment and resources required fromthe outset, otherwise the support of thecouncillors could be lost as the full implications,including the financial implications, of using thepowers becomes apparent.

Is there community support for the use of the powers?Before a parish council considers using any ofthe new powers it needs to satisfy itself thatthere is wider community support for the issuingof fixed penalty notices and the possibility of theparish council taking court proceedings againstthose that don’t pay. This could well includeneighbours, juveniles or even relatives.

A parish council could take both formal andinformal soundings, by organising a parishmeeting or by referring to the communitypriorities expressed in a ‘Parish Plan’ documentor during the Parish Plan consultation process.

Are there sufficient resources available todeliver a professional and consistent service?To use the powers will cost a parish councilmoney – possibley more than will be raised from the issuing of fixed penalty notices or court proceedings.

The implication of this is that the parish councilmay have to raise extra money to pay the costsof taking on the powers or, alternatively, reduceservices in other areas. This is something thatneeds to be borne in mind when consulting theresidents of a parish.

Section Two of this Guide talks about the needfor an enforcement strategy and includes somemore thoughts on setting a budget to ensurethat a parish council fully considers the costimplications at the outset.

Are there alternatives to using the powers?In relation to the dog offences, if a parishcouncil already has byelaws, for example, thoserestricting dogs, these byelaws will remain inforce and will only be extinguished if they arereplaced by either a parish or district councilimposed dog control order. That said, the onlyoption for enforcing against byelaws is byprosecution through the magistrates’ courts as fixed penalty notices cannot be offered as an alternative.

If a parish council doesn’t want to use the newfixed penalty notices but still wants to enforceagainst, for example, a person dropping litterthey can instead, assuming they have enoughevidence, take an offender to the magistrates’court and pursue prosecution there, as theywould currently do for an offence against anycurrent byelaws they might have. There is norequirement to offer an alleged offender a fixedpenalty notice, as court action can be taken inthe first instance.

And as has been mentioned, there are otherways to reduce litter, flyposting, graffiti and to tackle dog offences. Education and publicinformation will always have a place.

Shouldn’t the district councils be leading on these powers and tackling the problemsthey were brought in to address?Yes. They have the powers to do so, and wherethe issues are a problem the vast majority will be using them.

The powers have been given to parish councils so that they can also play a role andcomplement the work undertaken by districtcouncils – to tackle problems in their communitiesand respond to the concerns of their residents.

It will be very important for any parish councilthat is considering using the powers to have a discussion with its district council to find outwhich powers it plans to use, if they are notalready in use, and where it plans to use them.This will make sure that a parish council’s plansdon’t end up conflicting with those of thedistrict council.

But more than this, if a district council can beencouraged to allocate additional resources or to target its efforts to areas within a particularparish, then this could be enough to negate theneed for the parish council to pursue this workthemselves, in their own area.

That said, the powers have been given to parishcouncils for them to use to tackle issues thatmight be of concern to their residents, in theirareas – so improving the quality of life of their residents.

Having considered these questions, amongstothers, and arrived at an answer to each, aparish council is going to be better placed todecide its best course of action, namely, whetherto enforce or not and which powers to adopt.

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Enforcing the lawIn coming to a conclusion, this Section looks atsome of the practicalities of using the powers –in effect, the ‘key things’ that a parish councilwill need to commit to if it plans to use some orall of the powers.

The issues that are outlined below are includedas an introduction to aid early thinking and arefurther explained in greater detail in Section Five.

Enforcement is central to the new powersintroduced by the Clean Neighbourhoods andEnvironment Act 2005. With the right to takeaction against the litter lout, the graffiti artist,the affixer of flyposters or the dog fouler, comesthe responsibility to ensure that enforcement iscarried out professionally, efficiently and mostimportantly within the letter of the law.

Issuing fixed penalty noticesThe Act makes clear that the Government canset conditions that must be met by an individual(a person) before he or she can be authorised by a parish council to issue fixed penalty notices.In practice, this means that before anyone canbe authorised by a parish council to issue fixedpenalty notices on its behalf he or she must have attended a Government approved trainingcourse. The exception to this are PoliceCommunity Support Officers, who do not needto have attended an approved course beforethey issue fixed penalty notices on behalf of aparish council. Details of approved courses canbe found at www.defra.gov.uk/environment/localenv/legislation/cnea.

As a result, a parish council is left with a largedegree of discretion as to who it can authoriseto undertake enforcement work on its behalf,which is worth further discussion at this stage.

Identifying suitable staffIf a parish council is going to go down theenforcement route and decides that it is going to issue fixed penalty notices, it needs to ensurethat it has suitable staff to take on the task.

One of the first questions that a parish councilwill need to ask itself is does it already have staff that can take on an enforcement role as an additional responsibility? This is always goingto be one of the most cost effective options, yet it needs to be remembered that not everyoneis “cut out” to do enforcement work, andamongst other things, issue fixed penalty notices.

A parish council may decide that a better routemight be to employ staff whose sole role is to undertake enforcement work; this will havethe advantage of giving a higher profile toenforcement in a parish area, yet depending onthe number of hours the ‘enforcement officer’is contracted to do, this will come at a high cost.

Regardless of who is recruited to take on therole, he or she will need to be of suitablecharacter to do the work. As a minimum, he or she should be able to provide a CriminalRecords Bureau Certificate and have the peopleskills required.

Other enforcement optionsGiven the resources needed, the possibility ofemploying dedicated staff to issue fixed penaltynotices is going to be too expensive for manyparish councils.

However, this doesn’t mean that they have tomiss out on the benefits effective enforcementcan bring.

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Other options could include sharing the costs of an enforcement officer with neighbouringparishes or contracting the service out. Orfurther, Police Community Support Officers(PCSOs) might be able to take on thisenforcement role for a parish council; this isassuming that the chief police officer isamenable to such an approach. This might comefor ‘free’ or through the payment of a fee inreturn for an agreement that a PCSO will give a proportion of his or her time to enforcement in a particular area.

But most important is the need for dialoguebetween the parish council and its districtcouncil. A district council may already haveenforcement staff, or plans to recruit them in the near future. If this is the case, a parishcouncil, by identifying problem areas in itsparish, might be able to encourage the districtcouncil’s enforcement service to target thoseproblem areas.

And if the district council doesn’t have anenforcement service, then, by coming togetherparish councils might be able to encourage them to develop one.

Questions and answersWho is this Guide for?This Guide has been written for parish councils –their officers and members.

Equally, it should be seen as a referencedocument for district councils, to help them geta better understanding of the powers that arenow available to parish councils. If your districtcouncil would benefit from reading this Guide,let it know where it can get a copy.

Why has this Guide been written?Because the powers that have been given toparish councils are new, and to date theywouldn’t have used anything similar. This Guidehas been produced to help parish councils andtheir elected members and officers navigatetheir way through the Clean Neighbourhoodsand Environment Act 2005 – to betterunderstand the new powers and, if a parishcouncil wants to use them, to explain how they can be used.

What are these new powers?Parish councils will be able to take legal actionagainst those that litter, flypost or graffiti in theirareas. It brings into play a new system forcontrolling dogs, dog control orders, whichwhen applied to a piece of land can control dogfouling, the banning of dogs, the number ofdogs that can be walked by any one person, therequirement that a dog should be on a lead orthat a dog should be put on a lead when theirowner is told to do so. The new system of dogcontrol orders replaces the dog byelaw system.

A parish council will also be able to issue fixedpenalty notices in respect of these offences. Forthe first time, parish councils will also be able toissue fixed penalty notices in respect of litter,graffiti and flyposting.

How should I use the Guide?It should be used to consider the merit of thevarious powers; in the first place to decide if you want to use the powers – after all, if, forexample, your area doesn’t suffer from the blight of litter, there is no point going to theeffort of investing time and money to recruit and train staff, when there is little or nothing to enforce against.

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If you do decide to use some, or all of thepowers, then it will guide you through them and assist you in developing a strategy (a plan)to turn the powers into reality.

Do I need to read the Guide from cover to cover?No, if you decide that after reading Section One the powers are not for you, then readno further!

However, if you do plan to use the powers thenyes, you should read this Guide. However, yourreading should not end there. In adopting any of the powers it is important that you have a fullunderstanding of the law behind the powers.

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Section Two – Implementing and managing an enforcement programme

This Section will:

• Introduce the need for an agreed (by the parish council) and publishedenforcement strategy;

• Provide advice on the process for developingand agreeing an enforcement strategy;

• Set out what to include in an enforcementstrategy; and

• Answer some common questions.

IntroductionGiven the complexity of the legislation in theClean Neighbourhoods and Environment Act2005 and the Acts that it amends, any parishcouncil considering using some, or all, of thenew powers available to it will need to ensurethat they are adopted in a considered andplanned way.

The best way for a parish council to do this is to develop, agree (by the parish council) andpublish an enforcement strategy. This is so thatthe parish council is clear and in agreement onwhat it plans to do on enforcement, how it isgoing to do it and by publishing it, makingresidents of the parish aware of the parishcouncil’s plans in this area.

The Act doesn’t require parish councils toproduce an enforcement strategy. However, thisSection has been included as it is considered that it is good practice, as well as something theGovernment is keen to encourage. But morethan that, by drafting an enforcement strategy a parish council will ensure that it goes into thebusiness of enforcement with its eyes open.

Through the process of developing anenforcement strategy, amongst other issues, a parish council will be able to:

• Agree the extent to which it wants to use the new powers;

• Identify where it wants to use the new powers;

• Work out how much the process will cost and then set a budget;

• Look at how it will resource any enforcementinitiatives, from back office administration,through to any enforcement officers on theground; and

• Focus the minds of parish councillors, toensure that when they take the decision to use any of the enforcement powers, they doso from a position of strength, being fullyaware of all the implications.

As will become apparent, a certain amount of time and effort is required to draft anenforcement strategy. However, given the nature of the powers – the delicate implicationsof potentially enforcing against one’s ownresidents, it is important that this process is well thought out and thorough.

This Section should be revisited after the rest of the Guide, and supporting material, has been read and, ideally, used as the basis fordeveloping an enforcement strategy, if a parishcouncil decides that it is to use some or all of the new powers available to it.

Developing and agreeing anenforcement strategyBefore going on to What to include in anenforcement strategy, it is worth considering theprocess that any enforcement strategy will ideallyneed to go through before it is formally adoptedby a parish council.

The main stages can be summarised as:

• Assessment of need;

• Consultation;

• Debate and approval; and

• Communication.

One note of caution for all parish councilsconsidering using the powers is the need tomake sure that their own house is in order.Parish councillors and officers need to be awareof the laws and make sure that they abide bythem at all times. Issues to be particularlycautious of are those that relate to flyposting.There would be nothing more embarrassing fora parish council being caught foul of the lawsthat it was seeking to apply!

Assessment of needThe assessment of need has already beentouched on in the first Section of this Guide; yetit is a very important consideration and warrantsfurther discussion.

Prior to embarking on any enforcement strategyand subsequent implementation, a parish councilneeds to consider the need.

If there is little or no litter, graffiti, flyposting orevidence that dogs are a problem, then there isno point adopting the powers that have beengiven to parish councils by the Act – it is assimple as that.

There may be a perception that there is aproblem, amongst residents and councillors, yetany perception needs to be checked againstwhat is found out on the street, in the park or in other open spaces.

As has already been suggested, a walk around a parish, by parish councillors, and looking tosee what is found and if there is any evidenceof, for example, people dropping litter or lettingtheir dogs foul, will always be worthwhile.

If, following any walk around or otherassessment, the parish council is of the view that there is a need to use some, or all, of thepowers then it should consider moving forwardwith the powers that are available to it anddevelop its approach in an enforcement strategy.

ConsultationGiven the implications of the powers, in that ifthey are used a parish council could be takingenforcement action against its own residents, it is important that a parish council asksresidents what they think about the use of thepowers; particularly if they are going to takeresources away from other areas of the parishcouncil’s work.

There may already be evidence of communityconcern over the issues through anyconsultations that may have already beenundertaken, such as through any ‘Parish Plan’ process.

Alternatively a parish council may wish to consultits residents through its newsletter, if it has one,or through the local newspaper.

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A very important consideration is the need toconsult with the local district council – there is no point in making dog control orders oremploying enforcement staff to issue fixedpenalty notices if the district council already has plans to do so.

Further, parish councils also need to rememberthat at the very beginning of the legislativeprocedure of making a dog control order theyneed to consult formally over their plans withthe district council. However, the point thatshould be made here is that a parish councilshouldn’t wait until such time as it is required by law to consult with the district council; itshould be meeting with it as a matter of course,at a very early stage, to discuss all availableenvironmental enforcement options.

If there is support for a parish council's proposalsto adopt any of the new powers, then is thetime to draft the enforcement strategy. Morespecific detail on this is set out under What toinclude in an enforcement strategy, below.

Debate and approvalHaving drafted the enforcement strategy, it isimportant that it is then debated and agreed bythe full parish council at one of its formal meetings.

Prior to any formal meeting, the enforcementstrategy should be made available to not onlythe parish councillors, but also the public.

Members of the public who have an interestshould be encouraged to attend and given theopportunity to speak prior to the start of theformal business of the parish council.

At the end of any debate there should be arecorded vote, and if favourable, the strategycan be amended as required and then enactedand the enforcement powers rolled out.

By following this process, full political support is gained for the parish council’s plans.

CommunicationHaving taken the decision to use some, or all, of the powers in the Clean Neighbourhoods and Environment Act 2005 and/or the other Actsthat it amends, the parish council should thencommunicate this decision to residents of the parish.

This can be done through any newsletter, leafletdrop or through a press release to the localnewspaper. This should set out the decision thatthe parish council has come to, the powers thatit plans to use, how it will enforce the powersand when they will come into effect.

The enforcement strategy should also be madeavailable to members of the public so they caninspect the details of the parish council’s plans.

The reason that this is important is two-fold.Firstly, by telling residents that the parish councilplans to take action against the dog fouler andthe litter dropper, for example, it is sending out a message that this form of behaviour will notbe tolerated, and that those caught in the actwill be fined or prosecuted. This alone canchange peoples' behaviour – for they may fear prosecution.

The second reason is that informing people,in advance of issuing any fixed penalty notices,acts as a warning and can smooth the way forwhen they are used. Anyone who is then given a fixed penalty notice cannot say that he or shehadn’t been warned, or that he or she didn’tthink that what he or she was doing was wrong.

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What to include in an enforcement strategyWhat follows here is a guide as to what should be considered for inclusion in anenforcement strategy.

Any parish council using this outline, shouldn’tfeel bound by what follows; it should add to itwhere it thinks that it is important and ignorethose elements that it does not feel are appropriatefor its circumstances.

The key headings that can be included in an enforcement strategy are:

• Statement of intent – why the parish council plans to use the powers;

• Summary of any consultations with the community;

• Summary of any consultations with therelevant primary authority;

• What powers the parish council will use;

• Ensuring equity;

• When the powers will be used;

• Proposed areas for dog control orders (if they are to be made);

• Setting the levels of fixed penalty (including early payment options);

• Budget;

• Staffing and recruitment;

• Training;

• Enforcing through the magistrates’ courts;

• Maintaining proper records;

• Use of receipts;

• Reporting – locally and to Government; and

• The review process.

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Statement of intent – why the parish council plans to use the powersIt is recommended that, by way of introduction,the parish council sets out the arguments for theadoption of the new powers.

It should include any assessments of theproblems that the parish council is looking toaddress, through the use of the powers; if litteris a problem it should state the extent of theproblem and what it hopes to achieve in relationto that problem.

This is important, as the use of the fixed penaltynotice powers shouldn’t be the end itself.

The statement of intent should also set out theintention of the parish council to apply thepowers in an even handed and consistent way.There is no point adopting the powers andhaving one rule for visitors and people fromoutside the area and another, more lenient, rule for residents of the parish.

Summary of any consultations with the communityIt will always be helpful to the decision-makingprocess, which a parish council will go throughin deciding whether to use the powers or not,if it can be shown that the community wantsthe powers to be used, or failing that, thatthe community are at least concerned aboutthe issues the powers can address.

It is therefore important to use any consultationsthat the parish council has undertaken on thenew powers, or any other evidence that can addweight to the use of the powers, such as thatwhich might be found in any ‘Parish Plan’ survey.

Summary of any consultations with the relevant primary authorityThe enforcement strategy should also set out theresults of any consultations or discussions that a parish council has had with its district council.This is very important.

These consultations must not be confused withthe formal requirement for district councils andparish councils to consult with each other overspecific proposals for individual dog controlorders. These formal consultations are to takeplace at the start of the ‘official’ process ofmaking a dog control order and not at the timeof developing the enforcement strategy. This is explained in Section Three.

That said, it would be very unwise for any parishcouncil to push ahead with plans for dog controlorders if the district council had already decidedthat it was going to bring into force orders thatwould overlap with any of the parish council’sproposed orders. Further, if a district councilplanned to recruit its own enforcement staff,which would be able to cover the parish, thenthere could be an argument that there was nopoint in a parish council employing its own. Earlyconsultations can help a parish council get anidea of what a district council’s plans are andopen up the opportunity for partnership working.

The enforcement strategy should clearly set outwhat, if at all, the district council plans to dogenerally in relation to applying dog controlorders in the parish council’s area and for what offences.

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If a district council plans to, or can beencouraged to, apply dog control orders on landthat the parish council wants covered by a dogcontrol order, and for the offences it wanted,then this would save the parish council the timeand expense of having to do it itself. Further, it would not stop it from issuing fixed penaltynotices, and retaining the income, for anyoffences that might be committed against a district council dog control order in its parish area.

More importantly, as explained in Section Three,if a parish council were to go ahead and make a number of dog control orders and later havethem extinguished by a district council dogcontrol order for the same offence, on the samepiece of land, then the time and expense thatthe parish council had expended in making itsown orders would have been wasted.

What powers the parish council will useThe enforcement strategy will need to be clearon the powers that the parish council plans tomake. It should state which dog control orders itwill use, and by implication the offences that itwill enforce against. It should state its intentionsto enforce against litter, graffiti and flyposting. Ifit is only going to enforce against litter, it shouldsay so; equally, if it is to enforce against all ofthe issues.

Ensuring equityThe enforcement strategy should set out howthe powers that the parish council plans to use will be used in a fair, even-handed andconsistent way. This to ensure that all peoplewho are suspected of committing an offence,are dealt with in the same, equitable way.

When the powers will be enactedIt is important that the enforcement strategystates when the powers will first be used. This,so that a start date can be agreed and that all ofthe work, such as the training, resourcing andemployment of any enforcement staff, can beplanned for and undertaken.

This will also focus the minds of parish councillors;it will help with the budgeting process andensure that the powers, that are to be used, are rolled out in a planned way.

By setting a date, the parish council can use thetime in the interim to inform residents of thefact that it will be issuing fixed penalty noticesagainst those that break the law and, as hasbeen mentioned, get the public used to the ideaand so ensure that someone caught litteringdoesn’t cry foul by claiming he or she was notaware of the parish council’s plans.

Proposed areas for dog control orders (if they are to be used)Section Three of this Guide, on making dogcontrol orders, makes it clear that there is a costand resource burden associated with makingsuch orders.

It is therefore important that a parish council isclear about which areas of the parish it plans toapply dog control orders and for what offences.In the short term, it will better enable the parishcouncil to budget for making the orders. Further,when it gets round to making the orders it couldsave the parish council money, in that it canadvertise (place a notice) in a newspaper for anumber of dog control orders in one go, ratherthan advertising them individually and having tobear the costs of a number of individualnewspaper adverts.

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Further, by being open about the areas of theparish where a parish council wants to apply adog control order or orders, the parish councilcan invite feedback from members of the public,and those who might have an interest in theareas that they are proposed to cover, such asrelevant landowners.

Feedback at this early stage will be valuable, asthis will enable the parish council to get a feelfor the likely support, or lack of it, for any of itsproposals. This should be done before it goesdown the formal route, incurring expense, onlyto find out that following consultation there islittle or no support for a particular dog controlorder, resulting in it not being applied and theeffort and expense being for nothing.

The reason that it is important to consultlandowners is that if such an owner is not happywith a particular dog control order being appliedto a piece of his or her land, to which the publichas access, there is little point in applying it.Should anyone challenge a fixed penalty notice,that for example they have been given for failingto clear up after his or her dog had fouled, onthe grounds that the landowner didn’t mind orhad given consent, then an offence would nothave been committed and any prosecution takenby a parish council would fail.

Setting the levels of fixed penalty (including early payment options)Section Four of this Guide sets out the relevantpenalties for offending and the options forsetting the levels of penalty that can be paidunder a fixed penalty notice, where it can be setby a parish council. It also explains the optionsfor early payment of fixed penalties.

The enforcement strategy should clearly statethe levels of fixed penalties that it intends toimpose and the options for early payment thatwould apply.

For the litter, graffiti and flyposting offences, thiswill always be the level of fine set by the districtcouncil, if it has done so, failing which thedefault amount would be payable. However, aswill be explained, the parish council can set itsown level of fixed penalties for offences againstits own dog control orders and its own levels ofearly payment options for all of the offences inrespect of which it issues fixed penalty notices.

If an offender is taken to the magistrates’ court,in a case where the parish council has decidednot to offer a fixed penalty notice as an alternativeto prosecution, any fine is (of course) decided bythe court and not by the parish council.

Budgeting Using the new powers in the Act will cost aparish council money. It is thought very unlikelythat the receipts from fixed penalty notices alone will cover the full costs of running anenforcement service.

This makes the budgeting process vital for any parish council.

The budget, to be included in the enforcementstrategy, should include full details of projectedincome and expenditure.

Predicting the income, predominantly thereceipts from fixed penalty notices, in the firstyear of using the powers, will always be hard,however, over time this process should become easier.

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In setting the budget, income will be made up offixed penalty receipts, based on the number thata parish council predicts that it will issue, costsawarded to the parish council in the magistrates’court and any grants (such as money that adistrict council might pay to support a parishcouncil’s enforcement work).

Amongst other things, expenditure will be madeup of staff costs, both enforcement and backoffice, training, equipment and uniforms,materials, such as fixed penalty notice books,signage and solicitors fees for taking cases ofnon-payment to the magistrates’ court, etc.

Staffing and recruitmentIf a parish council is going to use the powers inthe Act, and it is to issue fixed penalty notices,then it will need to identify the staff that will dothis work on its behalf. There is no point inmaking dog control orders if the parish council isnot then going to enforced them.

Section Five of this Guide sets out some of thestaffing options open to a parish council. It maydecide that the best way forward would be toauthorise some of its existing staff to take on anenforcement role. It could recruit volunteersfrom within the community, or alternatively itcould recruit dedicated full or part time staff tothe role.

Another option might be to negotiate with thedistrict council to see if it would be prepared todedicate some of its enforcement staff toenforce in the parish area for a number of days a month; either at no cost to the parish councilor for an agreed fee.

Parish councillors should not be authorised toissue fixed penalty notices. This is in line with thegeneral principle that parish councillors may notact as employees of their own council.

TrainingGiven that it is a requirement under theEnvironmnetal Offences (Fixed Penalties)(Miscellaneous Provisions) Regulations 2006 thatany person authorised to issue fixed penaltynotices on behalf of a parish council must attenda Government-approved training course, withthe exception of Police Community SupportOfficers, then the enforcement strategy shouldset out who the authorised people will be,whether they will be existing staff or thoserecruited or contracted-in specifically to take onan enforcement role. The enforcement strategyshould also include a timetable for their training,prior to them being authorised by the parishcouncil to issue fixed penalty notices on its behalf.

There may also be additional training requirements.For example, it might be considered appropriatefor the parish clerk to attend the Government-approved enforcement course, so that he or shehas a clear understanding of the enforcementprocedures and protocols that will be employedby the enforcement staff in their parish. Othertraining requirements could include the need totrain the parish clerk to be able to prepare a casefor a solicitor to take to the magistrates’ court.These should be identified and included in theenforcement strategy.

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Enforcement through the magistrates’ courtsPublic confidence in a parish council’s enforcementstrategy, to a large extent, will be formed by itscommitment and its actions on the ground topursue enforcement in a fair, firm and consistent manner.

This means having a protocol for enforcing thenon-payment of fixed penalties and dealing withrepeat offenders and the more serious offencesthrough the magistrates’ court.

In practice, this section should cover who willhandle a parish council’s prosecutions for it, be ita private solicitor, a district council solicitor, forfree or on a fee-paying basis, or a clerk trainedto do this work for the parish council. These arejust a few examples.

If a parish council has decided to enforce againstthe provisions of a relevant Act, then it shoulduse them to their logical conclusion.

In practice, this means that having issued a fixedpenalty notice for an offence and after the timeperiod allowed for payment has expired, theparish council should be prepared to take theperson to court for the original offence.

If a parish council is not prepared to do this,then it should not be using the powers in theAct, as any confidence in the parish council toenforce the law would quickly erode, as wouldthe effectiveness of the powers. In practice thiscould translate into sections of the publicignoring the laws and failing to pay any fixedpenalty notice, as there would be a perceptionof ‘why bother if the parish council isn’t going topursue me for payment’.

Maintaining proper recordsTo run a credible and efficient enforcement servicea parish council will need to maintain proper andfull records of its enforcement activities.

It will need to keep copies of all fixed penaltynotices, records of evidence and any interviews,case files for any prosecutions, not to mentioncopies of relevant dog control orders and anyassociated paper trail.

The strategy will need to set out how a parishcouncil plans to manage and maintain all of thisinformation and the associated records.

Use of receiptsSection Five of this Guide sets out what anyincome generated by a parish council’senforcement service can be used for. That said,the enforcement strategy should state how theparish council plans to use the receipts from any fixed penalty notices.

Given that the costs of running an enforcementservice are likely to outweigh any incomegenerated, for most, this will be a case of sayingthat any income will be used to subsidise thecosts of an enforcement service.

However, if a parish council predicts that it willgenerate a ‘profit’ it needs to state how thisprofit will be spent.

If the parish council is a “Quality Parish Council”it can spend this income on any of its functions.

If a parish council is without this status then theincome can only be spent on its functions inrelation to litter, graffiti, flyposting and dogcontrol orders and offences – such as additionalbins, more enforcement officers, publicitymaterial, etc.

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Reporting – locally and to GovernmentAny enforcement strategy should set out how aparish council plans to keep up-to-date recordsof its enforcement activity, particularly in relationto the number of fixed penalty notices that havebeen issued, the receipts from them and thenumber of cases that were pursued through the courts and the costs awarded.

Further, a parish council will need to show howany receipts have been used.

This is because the information will be requiredby the Secretary of State (the Government) formonitoring purposes.

This information will also be important at thelocal level, not only for the obvious reason ofenabling a parish council to monitor its budgetin this area, but also to tell the community aboutwhat it has managed to achieve in terms of thefixed penalties issued and when it has brought a successful prosecution in the courts.

By using the local newspaper to communicatethis information it further informs the publicabout the tough stance that the parish councilhas chosen to take, further educating the public, and ultimately changing behaviour, leading toreductions in the problems found on the street.

The review processAs with any strategy or plan a parish council may have, it is important that the enforcementstrategy is reviewed on a regular basis.

This is important from a budgeting point ofview, to ensure that the budget for anyenforcement service stays on track.

Further, the parish council needs to ask itselfwhether its enforcement work is having thedesired effect – for example, is it reducing litter,graffiti and flyposting and is it reducing theamount of dog fouling or the nuisance that canbe caused by dogs, where the powers are being used?

Through regular reviews problems can beidentified, changes to the way that a parishcouncil uses the powers can be made andachievements celebrated.

Questions and answers Does a parish council have to produce an enforcement strategy?No – there is no requirement for a parish councilto produce such a strategy, yet given theimplications, for the community and financially, a parish council would be ill advised not to.

Should a parish council share its enforcementstrategy with the district council?Again there is no requirement for it to do so, yetcommonsense would suggest that it would bevery worthwhile. This would give the districtcouncil the opportunity to see what the parishcouncil had planned and to comment, soavoiding any possible costly duplication.

Should a parish council push ahead with theuse of the powers if there isn’t communitysupport for them?To use the powers or not is a political decisionfor the parish council and its councillors.However, they would be best advised to considertheir representational role before coming to a decision.

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Can a parish council get funding to use the powers?There is no funding from Government. However,if a parish council is taking on responsibilitiesfrom a district council there might beopportunities to discuss funding with it.

Are district councils obliged to support work financially?There is no obligation for a district council to do so.

Do parish councils have to report toGovernment if they choose not to use the powers?No.

Why do parish councils have to report to Government?The reason that Government collects thisinformation, which it already does from districtcouncils, is so that it can monitor the use of thepowers and to provide it with the informationthat it requires should it need to makeimprovements to the powers that are available.

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Section Three – Dog control orders and offences

This Section, in relation to dog controlorders, will set out:

• The offences that can be covered underthe new system of dog control orders;

• Their impact on any current byelaws;

• The need to work with the district council;

• Where dog control orders can be applied;

• How they can be made and varied;

• The practicalities of using them; and

• Answer some common questions.

At the end of this Section, the reader shouldhave a full understanding of how to make,vary and extinguish the five different typesof dog control orders.

This Section does not describe the optionsfor setting the level of fine for a dog controlorder fixed penalty notice or early paymentdiscounts. This is fully covered in SectionFour. Further, the use of fixed penaltynotices and the enforcement of dog controlorders generally, is more fully covered inSection Five, alongside enforcement againstthe litter, graffiti and flyposting offences.

IntroductionPrior to the Clean Neighbourhoods andEnvironment Act 2005, local authorities,including parish councils, could make byelaws to control dogs on certain areas of land, forexample, to control dog fouling and to ban dogs either permanently or at certain times of the year.

The Local Government Act 1972, set out the‘byelaw’ making process, which requiredbyelaws in England to be confirmed by theGovernment before they came into effect.

This way of doing things has always been both costly and complicated to administer – for local authorities (including parish councils)and Government.

The Clean Neighbourhoods and EnvironmentAct 2005 replaces the previous system ofbyelaws with a new system of ‘dog controlorders’; furthermore the Dogs (Fouling ofLand) Act 1996 has been repealed. In effect it has been replaced by the extended powersto control dogs in the new Act.

TThhee ffiivvee ooffffeenncceess tthhaatt ccaann bbee ccoovveerreedd iinn aa ddoogg ccoonnttrrooll oorrddeerr::

• Failing to remove dog faeces;

• Not keeping a dog on a lead;

• Not putting, and keeping, a dog on a lead when directed to do so by anauthorised officer;

• Permitting a dog to enter land fromwhich dogs are excluded; and

• Taking more than the specifiednumber of dogs (which a person maytake) onto land.

The use of dog control orders is governed bytwo sets of Regulations. These are The DogControl Orders (Procedures) Regulations 2006and The Dog Control Orders (PrescribedOffences and Penalties, etc.) Regulations 2006.These set out how dog control orders must beimplemented, the procedure that must befollowed when making them and the penaltiesthat can be applied. This is further explained inthis Section of the Guide.

The Schedules to the Dog Control Orders(Prescribed Offences and Penalties, etc.)Regulations 2006 describe the offences that can be covered by a dog control order and the form a dog control order should take.

A description of what is covered in theRegulations is given below. They can be viewedin full and downloaded from www.defra.gov.uk/environment/localenv/legislation/cnea.

To understand fully the new system of dogcontrol orders, the Regulations and theformal guidance should be read alongsidethis Section of the Guide.

The Regulations refer to primary and secondaryauthorities. For the purposes of the CleanNeighbourhoods and Environment Act 2005,primary authorities in England are districtcouncils, county councils for an area with nodistrict council, London borough councils, theCommon Council of the City of London and the Council of the Isles of Scilly and secondaryauthorities include parish councils.

Other statutory bodies, which have powers to make dog byelaws, may be designated assecondary authorities and as a result will also be able to make dog control orders. Therelationship between bodies designated as asecondary authority and parish councils will bethe same as that between parish councils andprimary authorities; meaning that dog controlorders made by parish councils will take priorityover those made by other secondary authorities.The relationship between district and parishcouncil dog control orders are expanded on later in this Section.

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Regulations What they cover

The Dog Control Orders (Procedures)Regulations 2006

The procedures that need to be followed whenmaking, amending or revoking a dog control order.

The Dog Control Orders (PrescribedOffences and Penalties, etc.) Regulations 2006

The five offences (covered in Schedules 1 – 5) andthe penalties (the level of fine) for them that can beapplied in a dog control order, and the wording thatshould be used in a dog control order.

• Schedule 1 – Offence of failing toremove dog faeces and Form of Order.

The dog fouling offence and the pattern (form oforder) that needs to be followed by the parishcouncil when making the order.

• Schedule 2 – Offence of not keeping adog on a lead and Form of Order.

The offence of not keeping a dog on a lead and thepattern (form of order) that needs to be followed bythe parish council when making the order.

• Schedule 3 – Offence of not putting and keeping a dog on a lead, underdirection and Form of Order.

The offence of not putting, and keeping a dog on a lead, under direction (when told to do so by anauthorised officer) and the pattern (form of order)that needs to be followed by the parish councilwhen making the order.

• Schedule 4 – Offence of permitting a dog to enter land from which it isexcluded and Form of Order.

The offence of permitting (allowing) a dog to enterland from which dogs are excluded and the pattern(form of order) that needs to be followed by theparish council when making the order.

• Schedule 5 – Offence of taking morethan a specified number of dogs ontoland and Form of Order.

The offence of taking more than a specified numberof dogs onto land and the pattern (form of order)that needs to be followed by the parish councilwhen making the order.

• Schedule 6 – Form of Order amending a dog control order.

The pattern (form of order) that needs to be followedby the parish council when making an order amendingone of its current dog control orders.

Regulations and Schedules – an overview (available at www.defra.gov.uk/environment /localenv/legislation/cnea)

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Byelaws and the Dogs (Fouling of Land) Act 1996 versus dog control ordersA common question that is raised concernsthe effect that the new system of dog controlorders will have on any byelaws that a parishcouncil might already have in place or theeffect that a parish council dog control ordermight have on any district council Dogs(Fouling of Land) Act 1996 designations. The following advice is offered:

• Any existing dog byelaws, that are already inplace in a parish area, for example, requiringdog owners to clean up after their dog hasfouled or banning dogs from a particulararea, will remain in force and unaffected,until such time as a dog control order is madeto cover all or some of the land for the sameoffence. If such a dog control order is made,it will have the effect of “extinguishing” thebyelaw that was originally in place.

• Parish councils can of course still revoke abyelaw where they do not wish to replace it with a dog control order, if they so wish.Yet they will not be able to make newbyelaws for the offences that are nowcovered by dog control orders.

• Any byelaws that apply to land to which adog control order also applies, but are for adifferent offence to the one detailed in thedog control order, will remain in place untilsuch time as it is replaced with a dog controlorder for the same offence, should a parishcouncil want to do this.

• For example, if a village green has a byelawrequiring owners to remove any fouling theirdogs might leave as well as a byelawrequiring dogs to be on a lead and the

parish council decides to make a dog controlorder for the whole of its parish arearequiring owners to clear up after their doghas fouled, the original byelaw relating tofouling of the village green will cease tohave effect. This is because the offence offouling will now be covered by the parish-wide dog control order. However, the byelawrequiring dogs to be on a lead will remain inplace. That is, unless a parish council thenbrings in a dog control order requiring dogsto be on a lead on the village green, or fromany other larger area of land, which includesthe village green.

• Fixed penalty notices cannot be offered as an alternative to prosecutions for offences detailed in a byelaw. Fixed penaltynotices can be offered as an alternative to prosecution for offences contained in a dog control order.

• One other very important point worth raisinghere, which is expanded on below under theheading Working with the district council, isthat a district council can extinguish a parishcouncil’s byelaw by making a dog controlorder that covers the area of land where theparish council byelaw exists.

• Under the Dogs (Fouling of Land) Act 1996,a district council may have made adesignation banning dog fouling in certainareas of the district. The CleanNeighbourhoods and Environment Act 2005removes their power to make any furtherdesignations under the 1996 legislation.However, any designations that are alreadyin place will remain so until they arereplaced, in full or in part, by either a districtor parish council dog control order.

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• If a parish council makes any dog control order this will have the effect of extinguishing any designation under the Dogs (Fouling of Land) Act 1996, for the area of land that the new dogcontrol order covers.

• For example, if a parish council decidesthat it wants to make a dog control orderrequiring that dogs are kept on a lead, the act of making such an order willextinguish any order made under the Dogs (Fouling of Land) Act 1996, when itcomes into force. As would a dog controlorder banning fouling, or the number ofdogs that can be walked by any oneperson, etc.

• If therefore follows that if a parish councilis going to extinguish such a designation,by making a dog control order, it needs toensure that it or the district council makesa new dog control order to ban dogfouling, that is, if it wants the foulingrestriction to remain in place.

• In this example a parish council wouldadvertise a dog fouling order at the sametime as they advertise the proposed orderrequiring that dogs are kept on a lead.

• In reality the most sensible course ofaction will be for the district council toreplace any of its Dogs (Fouling of Land)Act 1996 designations with theappropriate dog fouling order.

Working with the district council –some of the rulesThe need for partnership working betweenparish councils and their district council cannotbe emphasised enough. This applies to all of therelevant powers in the Clean Neighbourhoodsand Environment Act 2005 and the Acts itamends, yet is of particular importance whenconsidering dog control orders.

The Dog Control Orders (Procedures) Regulations2006 (www.defra.gov.uk/environment/localenv/legislation/cnea), place a requirement on primaryand secondary authorities, to consult any otherprimary or secondary authority within an area in which a dog control order is being sought.

This means that before a parish council starts theformal process of making a dog control order,detailed later in this Section, a parish councilmust formally consult the district council.Further, a district council is also required toconsult with the parish council on any dogcontrol orders that it proposes to bring in thatwill affect a parish council’s area. This is toensure the effective use of dog control orders.

However, prior to any formal consultation,outlined above, as has already been mentionedin this Guide it is always going to be in the bestinterest of a parish council to see if its districtcouncil is prepared to make and enforce dogcontrol orders on its behalf. Not only will thissave a parish council a great deal of time – it will save it money.

However, if a district council is not in a positionto offer this service to a parish council it is stillimportant to ensure that the parish councilworks closely with the district and to see thatboth parties have a clear understanding of eachother’s plans.

There is a very simple reason for this – it isbecause district councils can make dog controlorders to cover land in a parish and any dogcontrol orders that a district council chooses tomake will always have supremacy over thosemade by a parish council.

So what does this mean in practice:

• If a district council has already made a dogcontrol order that covers all or part of a parisharea, say for dog fouling, then a parish councilcannot then make its own order for the sameoffence covering all or some of the same land.

• If a district council decides that it wants tomake a dog control order banning dog foulingacross the whole of the district area, any dogcontrol orders that a parish might already havein place covering the same offence across theparish will cease to have effect when thedistrict’s order comes into effect. That said, aparish council will then be able to enforce thedistrict council’s dog control order in its parisharea.

• However, there is nothing to stop a parishcouncil making a dog control order for adifferent offence on the same piece of landwhere a district council order may alreadyapply. For example, a district council dogcontrol order may penalise dog fouling, yet the parish council can still make a dog controlorder to ban dogs, or require that they be on a lead, etc. on a piece of land where thedistrict council’s fouling order may apply.

The point here is that a parish council will notwant to go through the process and expense of making a dog control order only to find that a district council order already exists or that ithas plans to bring one in itself.

When to use dog control ordersWhen using dog control orders, a parish councilneeds to balance the needs of both dog ownersand others. This balance is important, in that if it cannot demonstrate this balance then its dogcontrol orders could be challenged in court.

What this means in practice is that dog ownersneed access to land where they can exercisetheir dogs, and equally, other people expect a right to enjoy land without interference fromdogs, and by implication some land from whichdogs are either banned or restricted.

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When making a dog control order appropriate signage should be used.

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Some important questionsIt is important that before a parish councilmakes a dog control order it is clear on theanswers to the following questions:

• Is there a specific problem with dogs on thearea of land that is being considered for a dog control order?

• If it is proposed to ban dogs, or require thatthey should be kept on a lead, are there

other areas of land in the parish available to dog owners where they can exercise their dogs?

• Is there community support for dog controlorders – amongst both the dog owning andthe non-dog owning public?

Answer yes to these three questions, then the use of dog control orders is probablyappropriate.

When to use a dog control order

• Where an area of land is used by dog ownersand there is a history of some failing to cleanup after their dog has fouled.

• Where an area of land, such as a playground,is used by children.

• Where ‘commercial’ dog walkers are bringinglarge numbers of dogs onto an area of land.

• Where dogs could affect the enjoyment ofothers using an area of land, such as a parkthat is used by people to enjoy a picnic.

• Where there is a history of dogs spoiling theenjoyment of other users of a particular areaof land.

• At certain times of the year on popularbathing beaches, where dogs might cause a problem.

When not to use a dog control order

• When a district council has already made a dog control order covering the land that a parish council might want to make an order for the same offence.

• When the parish council, making the orderhas no intention to enforce the dog controlorder (to issue fixed penalty notices or, if notaccepted or paid, to pursue prosecutions inthe magistrates’ court).

• When the parish council, making the order,doesn’t have the resources to effectivelypolice the order.

• Where there is no other land in the areawhere dog owners can exercise their dogs.

• When the Government has stated that dogcontrol orders cannot be used on certaintypes of land – for example, using a dogcontrol order to ban dogs from highways.

• When the owner of a particular piece of landhas given, or is likely to give, his/her consentfor any of the activities a parish council maywish to control through a dog control order(this could lead to problems shouldprosecutions be taken to court).

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Table 2: Dog control orders – What they are and when an offence applies

Dog control Orders(Prescribed Offences and Penalties, etc.)Regulations 2006

Schedule 1• Failing to remove

dog faeces

Description

– This offence applies whensomeone responsible for a dogfails to pick up and dispose ofits faeces in an area in respectof which a Fouling of Land byDogs Order applies.

Schedule 2• Not keeping a dog

on a lead

– This offence applies whensomeone responsible for a dogfails to ensure that it is ona lead in an area in respectof which a Dogs on LeadOrder applies.

– A parish council mayprescribe in the Order themaximum length of lead thatshould be used.

Schedule 3• Not putting, and

keeping, a dog on a lead when directedto do so by anauthorised officer

– This offence applies whensomeone responsible for a dogfails to put and keep it on a lead when instructed by a person authorised by theparish council to do so, in anarea to which a Dogs on Leadsby Direction Order applies.

Schedule 4• Permitting a dog

to enter land fromwhich dogs areexcluded

– This offence applies whensomeone responsible for a dogtakes it onto a piece of landfrom which dogs have beenbanned under a DogsExclusion Order.

Land on which an order can be made

A dog control order can be made in respect to any land, which isopen to the air and to which thepublic are entitled to have access(with or without payment).

It includes land that is ‘open to theair’ on at least one side and thatremains open to the air at all times.

This includes, but is not limited to:

• Village greens

• Playing fields

• Roads, highways and other rights of way

• Bus shelters

• Railway platforms

• Outdoor markets

• Private gardens open to the public

• Farm land

(Note: when considering applying a dog control order to a piece ofland to which the public has access,yet is in private ownership, there is no point doing so if the owner of the land does not support theproposed order as this couldcompromise any future courtproceedings against those that may go on to break that order).

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Where an offence can take place

– An offence can only takeplace on land that has beenincluded in any order, once ithas come into effect.

– In a magistrates’ court, thepenalty for committing anoffence under a dog controlorder is a maximum fine oflevel 3 on the standard scale.(This is currently £1,000).

– Alternatively, the allegedoffender may be offered theopportunity to pay a fixedpenalty as an alternative toprosecution. (There is norequirement for a parishcouncil to offer this option).

– The fixed penalty notice rate in a parish council’s ownorders for the offences can beset between the range of £50and £80 by the parish council.

If the parish chooses not to seta rate, the default rate of £75will apply, for any fixed penaltynotices it might issue.

– The Government has thepower to designate (say) whattypes of land that cannot becovered by some or all of thefive dog control orders.

– This ‘list’ currently includescertain Forestry Commissionland, in relation to all dogcontrol orders, and roads(including highways) in respectto dog control ordersexcluding dogs from landspecified in the order.

– The Government can add to this list as it sees fit.

– Fouling of Land by DogsOrders (Sch.1) do not apply to blind people or disabledpeople (not including the deaf)in respect of a dog on whichthey rely for assistance.

– Dog Exclusion Orders (Sch.4)do not apply to blind, deaf or other disabled people inrespect of a dog on whichthey rely for assistance.

Sanction Exceptions

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Making a dog control order

Making a dog control order – summaryDecide the area of land to be covered by a dog control order.

▼

Consult the district council. If land is ‘accessland’ consult (as appropriate) access authority/local access forum.

▼

Publish notice of proposal in a localnewspaper.

▼

Consider any representations (comments) onthe proposed dog control order.

▼

If the decision is to proceed with the dogcontrol order, make the order, including a date(not less than 14 days after making) when it isto come into force.

▼

Publish a further notice in a local newspaper atleast 7 days before the order comes into force.

▼

Where a parish council has a website, a copyof the order must also be posted on it.

▼

Where practicable, ensure that there isappropriate signage in place prior to the dogcontrol order coming into effect.

Table 2 (continued)

Dog control Orders(Prescribed Offences and Penalties, etc.)Regulations 2006

Description Land on which an order can be made

Schedule 5• Taking more than the

specified number of dogsonto land

– The aim of this order is tolimit the number of dogs thatcan be walked by any oneperson.

– This offence applies whenthe number of dogs walked on land in respect of which A Dogs (Specified Maximum)Order applies, exceeds that maximum.

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Where an offence can take place

Sanction Exceptions

When a parish council has decided that it would like to make a dog control order, and ithas made sure that there are no existing districtcouncil dog control orders that cover the landwhere it would like to make its own order, itthen needs to follow the procedures outlined in the “Dog Control Orders (Procedures)Regulations 2006”. These can viewed anddownloaded from www.defra.gov.uk/environment/localenv/legislation/cnea.

The procedures given in the Regulations arenot optional – they must be followed, asfailure to do so will invalidate an order,leaving a parish council open to challenge in the courts.

A parish council should also bear in mind thatthe process of making a dog control order willtake at least 56 days. However, given that aparish council will have to meet to consider anyconsultation responses and that notices will have to be published in a local newspaper, inpractical terms the making of an order will take anywhere between 65 and 85 days, if not longer.

Making a dog control order – the processHaving come to a decision that the parishcouncil would like to make a dog control orderand on the area of land to which it would like toapply the order, the process for making an orderis set out in more detail below:

1. As has been said, The Dog Control Orders(Procedures) Regulations 2006(www.defra.gov.uk/environment/localenv/legislation/cnea), place a requirement onprimary and secondary authorities, at the verybeginning of the process of making a dogcontrol order, to consult any other primary orsecondary authority within the area in which it proposes to make a dog control order.

1. In practice, this means that before a parishcouncil starts the formal process of making a dog control order it must formally consultwith the district council or other primaryauthority. This is best achieved by writing tothe district council, setting out the proposalfor a particular dog control order, andrequesting its views. There is no requirementto allow a district council a set length of time to respond; however, 14 days isconsidered fair.

1. At the end of this period, if the district councilhasn’t responded, or it has responded bysaying that it has no comment, then theparish council can proceed with the process of making a dog control order.

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Full time or part-time dog controlorders?Dog control orders do not have to applyevery day of the year. The Regulations allowparish councils, if they wish, to state at whattimes of the year an order applies.

This maybe helpful when a parish councilwants to ban dogs at certain times of theyear, for example from a beach or popularpark in the summer.

If a parish council decides to do this, it mustensure that any restrictions are clearly statedin any newspaper notice and in the orderwhen it is made.

Also, it is common sense that if there areany variations on times that an order appliesthat the parish council makes sure that thereare enough signs at, for example, accesspoints to a beach, to make people aware ofnot only the dog control order, but also anyfurther restrictions it might contain.

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1. If the district council responds by objecting to the proposal, or with concerns, then theparish council should consider these carefullybefore it decides to proceed with the dogcontrol order-making process. However, justbecause a district council objects to a proposaldoesn’t mean that a parish council cannotproceed with that order. That said, if theconcerns are legitimate then it would be right for the parish council to consider themfully before any decision is taken to proceedor not.

2. The parish council proposing to make anorder must publish a notice, describing theproposed order, in a newspaper(s) circulatingin the same area(s) as the land to which theorder will apply and invite representationsfrom the public and any interested body onthe proposed order – i.e. asking their views.

1. Where any, or part, of the land that isproposed to be covered by the dog controlorder is ‘access land’, before making theorder the parish council must consult the‘access authority’ and the ‘local accessforum’ and, where the access land is not in a National Park, the Countryside Agency.

Access land – some definitionsAccess land – the Countryside and Rights of Way Act 2000 introduced a new right for people to walk over areas of opencountryside and registered common land in England and Wales. There are some935,000 hectares of access land, areas ofmountain, moor, heath, down andregistered common land, to which thepublic now have access.

To see if there is any access land in a parisharea visit www.openaccess.gov.uk.

Access authority – is generally the localhighway authority, except in National Parkswhere it is the National Park Authority.

Local access forums – are advisory bodiesestablished under the Countryside andRights of Way Act 2000 to provideindependent advice on ‘the improvement of public access to land in their area for thepurposes of open-air recreation and theenjoyment of the area’.

There are currently 81 forums coveringalmost the whole of England. Their contactdetails will be available through the localhighway authority.

What to include in a newspaper notice (advert)The list below is not optional, all of theelements, where relevant, must be included in any newspaper notice when advertising a proposed order:

• The notice must identify the land to whichthe order will apply – it must clearly statewhere the land is and where the boundariesto the land to which the order will apply are.(If the land to which the order is to apply is‘access land’ then the notice should statethat that is the case. For a fuller definition ofaccess land see the Countryside and Rightsof Way Act 2000).

• The notice must summarise the effect of theorder – stating which of the offences areproposed to be applied on the identified land.

• If it is proposed to limit the times when the order will apply – to state the timerestrictions, e.g. the times of year the orderwill apply.

• If the order is to contain a map that showsthe land to which the order is to apply, tosay where the map can be inspected(viewed). This must always be at an addressin the parish council area, must be free ofcharge to view and be available atreasonable times of the day, during theconsultation period.

• The notice must give the address, includingemail address if there is one, and deadlinethat representations (comments) must besent to the parish council. The final datemust be at least 28 days after the noticeis published in the newspaper.

SSaammppllee nnoottiiccee

The Anytown Times – 6th April 2006

This notice is to inform anyone with aninterest, that the Parish Council ofAnytown is considering making a Foulingof Land by Dogs Order to make it anoffence for anyone to fail to remove dogfaeces, deposited by a dog for which heor she is responsible, from the area ofland known as the Village Green, in theParish of Anytown.

The Order, if made, will apply to all landwithin the area bounded by North Street,East Street, South Street and West Street.

A map of the area to be covered by theproposed order can be viewed at theAnytown Village Hall, East Street,Anytown – Monday to Friday, betweenthe hours of 9am and 5pm.

Anytown Parish Council invites anyrepresentations on the proposal.

All representations need to be made tothe Parish Council by 5th May 2006.

Representations should be sent to: The Parish ClerkAnytown Parish CouncilEast StreetAnytownAT1 1DF

Or by email:[email protected]

A N OtherAnytown Parish Council Clerk

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3. At the end of the consultation period, theparish council must then consider therepresentations that have been received,before coming to a decision to make theorder or not.

If the parish council decides to make the order, it will then need to do so by drafting the order(following the example of the relevant “Form ofOrder” given in the appropriate Schedule to theDogs Control Orders (Prescribed Offences andPenalties, etc.) Regulations 2006) and includingthe required details. (All of the “Forms of Order”can be found at www.defra.gov.uk/environment/localenv/legislation/cnea). The parish councilshould then formally resolve that the Order is made.

If the parish council decides, having consideredthe representations, not to make the order thenit does not need to do anything further.

If, however, the parish council decidessignificantley to amend the proposal on the backof the representations that it has received as partof the consultation, it must start the processagain, publishing a new notice describing theamended proposal in the local newspaper.

The need for balanceAn authority must be “even handed” incoming to a decision to make an order.

For example, if the order is to ban dogs andthe piece of land in question happens to bethe only open piece of land in an area thatis suitable for exercising dogs and the parishreceives a number or representations fromdog owners objecting, the parish councilwould need to think very hard beforemaking the order. Unless of course,there were other factors, such as the areawas also a play area for children.

4. Having made the order, the parish councilmust then agree a date when it is to comeinto force, this must be included in theorder and must be at least 14 days afterthe order is made.

5. Furthermore, once the order has been made,the parish council must, at least seven daysbefore it comes into force, publish a furthernotice in a local newspaper, stating that theorder has been made and where the ordermay be inspected and copies of it obtained.


The Anytown Times – 13th May 2006

This notice is to confirm that the ParishCouncil of Anytown has, on 6th May2006, made a Fouling of Land by DogsOrder making it an offence for anyoneto fail to remove dog faeces, depositedby a dog for which he or she isresponsible, from the area of landknown as the Village Green, in theParish of Anytown.

The Order will come into force on 21st May 2006.

The Order applies to all land within the area bounded by North Street, EastStreet, South Street and West Street.

The Order can be inspected at the Anytown Village Hall, East Street,Anytown – Monday to Friday, betweenthe hours of 9am and 5pm.

It can also be viewed on line atwww.anytownpc.gov.uk

Alternatively, copies of the Order can berequested by writing to:

The Parish ClerkAnytown Parish CouncilEast StreetAnytownAT1 1DF



6. Where a parish council has a website, a copy ofthe order must also be posted on it.

6. For the ease of users wanting to accessinformation on dog control orders it wouldmake sense for a parish council to develop a dedicated part of its website, where all dogcontrol orders can be listed and viewed.

7. If the order affects ‘access land’ (as defined inthe Countryside and Rights of Way Act 2000)a copy of the notice confirming that the orderhas been made, which appeared in thenewspaper, should be sent to the relevantaccess authority, the local access forum andthe Countryside Agency.

Advertising multiple ordersThis Guide has set out the process that aparish council should follow when making a ‘single’ dog control order, however, aparish council doesn’t have to advertise eachdog control order separately, this could betime consuming and expensive.

If a parish council decides that it wants toapply dog control orders covering differentoffences on the same piece of land or thesame offence on different land then theycan all be advertised in one newspapernotice at one time – as long as each isdescribed separately in the notice and theoffences and the areas of land to which theyare to apply is clear.

However, when and if a dog control order is made by a parish council, following theconsultation period, then a separate orderwill need to be made and signed for eachoffence and for each area of land to whichthe offence applies.

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SignageNot only are appropriate signs important toinform both dog owners and other people ofany dog control orders and the restrictions thatmay apply – they are a legal requirement, wherepracticable.

The Dog Control Orders (Procedures) Regulations2006 require that where practicable, signsmust be placed summarising the order inconspicuous (visible) positions on or near theland to which the order applies.

The intention isn’t to see whole areas of landplastered with signs, but to see that commonsense is applied. In practice, this means placingsigns at entry points to parks and open spaces,for example on a notice board informing thepublic that dogs are not permitted or that otherrestrictions covered by dog control orders apply.

Where a dog control order has been made tocover the whole parish, it is never going to bepractical to put up a notice at each point thatsomeone can enter a parish. In this case a morepractical solution is to put up signs at differentlocations, adjacent to, or on the highway,throughout the parish.

When putting up signage to inform the publicabout any dog control orders the language usedshould be clear, for example:

Failing to clear up after your dog has fouledis punishable with a fine of up to £1000 or

a Fixed Penalty Notice Anytown Parish Council

Failing to keep your dog on a lead (in thesegrounds) is punishable with a fine of up to

£1000 or a Fixed Penalty Notice Anytown Parish Council

As an alternative to written signs, the use of“road warning” style signs have proved to beequally effective and are acceptable.

However, before a parish council puts up anysigns, it should make sure that that it haspermission to do so. If it plans to put up signs on a streetlight it should ensure that it has thepermission of the relevant highways authority,the same applies for the use of telegraph polesor any structure, for that matter, which aren’t in the ownership of the parish council.

Revoking a dog control orderThere may be times when a parish council might wish to revoke a dog control order –circumstances may have changed and the order might no longer be appropriate.

As with making an order, a parish council needsto follow a set process to revoke an order:

1. A parish council proposing to revoke a dogcontrol order must first place a notice in a newspaper, circulating in the area where the order applies, inviting representations(comments) on the proposal from anyinterested parties – the public and interested bodies.

1. The notice must identify the land that thecurrent order applies to, what the currentorder is, and state that anyone wishing tomake representations (comments) should doso in writing or by email (if appropriate)within 28 days of the notice being publishedin the newspaper and the address and emailaddress to which representations should be sent.


The Anytown Times – 1st June 2006

This notice is to inform anyone with an interest, that the Parish Council ofAnytown is considering revoking theFouling of Land by Dogs Order, madeon 6th May 2006, which currentlymakes it an offence for anyone to failto remove dog faeces, deposited by adog for which he or she is responsible,from the area of land known as theVillage Green, in the Parish of Anytown.

The Order currently applies to all landwithin the area bounded by NorthStreet, East Street, South Street andWest Street.

Anytown Parish Council invites anyrepresentations on this proposal.

All representations need to be made tothe Parish Council by 29th June 2006.

Representations should be sent to:

The Parish ClerkAnytown Parish CouncilEast StreetAnytownAT1 1DF



1. It must also consult any other authority(the district council, etc.) having the power to make such an order in respect of the same land.

1. Where the order covers ‘access land’, asdefined in the Countryside and Rights of WayAct 2000, the parish council must also consultthe access authority and the relevant localaccess forum and, where the access land isnot in a National Park, the Countryside Agency.

2. At the end of the consultation period given in the notice, the parish council must considerany responses it has received. If it decides not to proceed with the revocation, then nofurther action is required. If however, it doesdecide to proceed to revoke the dog controlorder a further notice must be published in a local newspaper stating the date on whichthe dog control order will cease to have effect.

1. This date cannot be before the date of thenotice appearing in the newspaper.

Though not stated in the Regulations, it iscommon sense for the parish council to havemade arrangements for any signs to be takendown on or before the date that the revocationcomes into force.

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The Anytown Times – 1st July 2006

This notice is to inform anyone with aninterest, that the Parish Council ofAnytown will revoke the Fouling ofLand by Dogs Order, made on 6th May2006, which currently makes it anoffence for anyone to fail to removedog faeces, deposited by a dog forwhich he or she is responsible, from thearea of land known as the VillageGreen, in the Parish of Anytown.

This revocation will take effect on 7th July 2006.

The Order to be revoked applies to allland within the area bounded by NorthStreet, East Street, South Street andWest Street.


Amending a dog control orderA parish council may amend a dog control order,for example to decrease the number of dogsthat might be walked by any one person, or toincrease or decrease the area of land that a dogcontrol order covers. However, to do so it mustgo through the same process of making a neworder. This, by following the same time periods,by consulting the relevant access bodies (wherethe land is ‘access land’), by placing a notice in a newspaper, inviting comments, consideringthose comments, before placing a further noticein the same newspaper confirming the amended order.

Fixed penalty noticesThe Clean Neighbourhoods and Environment Act 2005 gives authorised officers of a parishcouncil the power to issue fixed penalty noticesfor offences against dog control orders that the parish council has made and for offencesagainst orders that a district council has made,where the offence has taken place within theparish area.

Regardless of who made the order, if the parishcouncil authorised officer issues a fixed penaltynotice for an offence against a dog control order– be it a parish council or a district one – theparish council keeps the receipts from the fixedpenalty notice or any costs awarded, should thecase end with a successful prosecution in themagistrates’ court.

There are a number of considerations for aparish council in relation to setting the level offixed penalty and early payment options for anydog control order offence. These are explainedfully in Section Four.

Dog control orders – Other considerationsSetting the maximum number of dogsSchedule 5 –the offence of taking more than a specified number of dogs onto land – allowsparish councils to set a limit on the number ofdogs that can be ‘walked’ by any one person.

The thinking behind this offence is thatGovernment has been told that there areincreasing numbers of ‘commercial’ dogwalkers, walking large numbers of dogs at anyone time. As a result, it might not always bepossible for a ‘walker’ to control a largenumber of dogs effectively and consequently the dogs could cause a nuisance.

Should a parish council wish to control thenumber of dogs walked by any one person, it needs to ask itself how many dogs can behandled by any one person at a time.

Advice on this is that the number of dogsshouldn’t exceed six, however, a parish councilcan set a lower or higher limit if it chooses to doso. Another factor to take into account, whichapplies equally to all the different types oforders, is to consider if the area of land inquestion is frequently used by children. If it is,then restrictions on the numbers of dogs thatcan be walked by any one person could be a sensible measure.

Setting the length of a leadSchedules 2 and 3, the offences of not keeping a dog on a lead and not putting and keeping adog on a lead, under direction (when told to doso by an authorised officer of a parish council),allow the parish council making these orders to specify the maximum length of the lead. This should be stated in the notice when theproposal to make such an order is advertised, so that anyone wishing to do so can commenton this part of the proposal.

Dog ban orders on unenclosed landSpecial consideration should be given to whetheran order banning dogs from land is enforceableon land that does not have a barrier (e.g. afence) around the perimeter, to prevent dogsfrom entering that land.

It is recognised that there are certain situations,such as dog bans on beaches, where it is notpossible to have barriers. However, where a dogban order is made, signs should be erected atthe entrances/exits, where practical, to alert dogowners to the restrictions applying to that land.

ExceptionsAs would be expected, dog control orders makeexceptions for people with disabilities; for theregistered blind, deaf people and for otherpeople who make use of trained assistance dogs.The exceptions are:

• Anyone who makes use of a trained assistancedog is allowed to enter with their dog landwhere dogs have been banned by a dogcontrol order; and

• Anyone who makes use of a trained assistancedog, other than a deaf person, is exempt fromdog control orders covering the fouling of landand cannot be prosecuted for not clearing upafter their dog has fouled.

Keeping recordsAs has already been mentioned, a parish councilthat has made a dog control order will need tokeep a copy of the order available for inspection.

But more than that; it is important that full andcomplete records are kept, not only of any dogcontrol orders made, but also copies of anynewspaper notices and consultation responses received.

Also important is the need for accurate parishcouncil minutes of any meetings when dogcontrol orders are discussed or made. These may be required for court proceedings should aparish council decide that it intends to prosecutean alleged offender.

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Questions and answersWe don’t want to use the fixed penaltynotice powers, so are dog control ordersgoing to be any use to us?Yes – the new system of dog control ordersreplace the current way of controlling dogsthrough byelaws. So if you want to place anynew restrictions on dogs, now or in the future,you have to do so through a dog control order.

However, there is nothing to say that you haveto offer an alleged offender a fixed penaltynotice. As with byelaws, you can prosecuteoffenders in the magistrates’ court but theadvantage of the fixed penalty notice is that youavoid the costs of taking court proceedings, if the fixed penalty notice is paid.

Commercial dog walkers are not a problemin our parish, so why has the facility to makea dog control order, which seeks to limit thenumber of dogs that can be walked by anyone person, been introduced?Not all areas have problems with commercialwalkers, yet others do, so this order was broughtin too help the areas where there is a problem.

But more than that, you might not have aproblem with commercial walkers, yet you might have a problem with people that own and exercise large numbers of dogs at any onetime in your parish. This order can be used tohelp you better manage any problems that theymight cause.

The process of making a dog control orderseems a bit long winded, is there anyway of shortening the process?No – the process for making a dog control orderis set out in Regulations, as explained in thisGuide. This process must be followed at all timeswith no short-cuts.

Can you have byelaws and dog controlorders covering the same land for the same offence?No – by bringing in a dog control order anybyelaw for the same offence is extinguished.

If a district council dog control order canextinguish a parish council byelaw, can a parish council order extinguish a districtcouncil byelaw?Yes the same rules apply – but only to the extentthat the parish area was covered by the districtcouncil byelaw. This is why it is so important toshare any plans with the district council.

Do we need to install and manage dogwaste bins where we make dog controlorders banning fouling?While it is always desirable to have dog wastebins at appropriate locations, there is norequirement for parish councils to install ormanage them.

What land can’t dog control orders beapplied to?Any land that isn’t open to the air or land where the public are not allowed access – with or without payment.

Further, the Government can limit certain typesof land that dog control orders can be applied.At the moment none of the dog control orderscan be made to cover certain Forestry Commissionland nor can dog control orders be made to bandogs from highways – this includes roads,footpaths, bridleways, etc.

Does a parish council have to consult on the level of fixed penalty notice?No – where a parish council has the power toset the level of fixed penalty and any discounts,it can do so without consultation.

That said, it will always be better if the level of fixed penalties can be agreed with the districtcouncil to avoid any confusion. The options for setting the level of fixed penalties is set out in Section Four. These must be followedwhen setting any fixed penalty and/or discount.

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This Section will set out:

• The definitions of litter, graffiti andflyposting;

• When a litter, graffiti, flyposting or dogcontrol order offence has been committed;

• How to set and apply the right level offixed penalty notice fine; and

• Some answers to common questions.

IntroductionThis Section will define litter, graffiti andflyposting and the related offences, along with a description of the dog control order offences,adding to what has already been covered inSection Three.

The Environmental Protection Act 1990 and theAnti-social Behaviour Act 2003, each amendedby the Clean Neighbourhoods and EnvironmentAct 2005, respectively set out how the offencesof dropping litter, and of causing defacement by graffiti and flyposting can be dealt with byparish councils. The powers for dealing withoffences under dog control orders are containedin the Clean Neighbourhoods and EnvironmentAct 2005.

Central to this is the ability for parish councils to now use fixed penalties. However, there arerules that have to be followed when setting the level of fixed penalties, as well as forallowing discounts for their early payment,should a parish council decide that it would like to offer such a discount. This Section willexplain these rules.

The following Section, Section Five, focusesmore specifically on how to apply the law on theground and will include information and adviceon recruitment and training of staff, what toinclude in a fixed penalty notice, when to issue a fixed penalty notice, how to take evidence and how to prosecute cases (further to the non-payment of a fixed penalty) through themagistrates’ courts.

LitterLitter is best defined as something that isimproperly discarded by members of the publicin an area. It includes sweet wrappers, drinkscontainers, cigarette ends, gum, apple cores, fastfood packaging, till receipts, small bags, and thelist goes on.

Anything that is a black bin bag or larger,containing litter, should be considered to be fly-tipping and referred to the relevant districtcouncil to deal with.

For the purposes of describing an offence in a fixed penalty notice, anyone who commits a littering offence can be said to have:

“committed an offence of throwing down,dropping or otherwise depositing andleaving litter under section 87 of theEnvironmental Protection Act 1990.”

The relevant legislation and definitions are setout in Table 3. This further sets out what litteris, when an offence takes place, where anoffence can take place and the penalties thatcan be used against those that break the law.

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Section Four – The offences and the law

Table 3: Litter – Legislation, definitions and penalties

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Offence

Litter

Legislation

– Environmental Protection Act1990, sections 87 & 88 (asamended by the CleanNeighbourhoods andEnvironment Act 2005,sections 18 & 19).

Definition

Litter is something, more oftenthan not, synthetic, which isimproperly discarded bymembers of the public whilstsitting, walking or travellingthrough an area.

It includes:

• Sweet wrappers

• Drinks containers

• Cigarette ends

• Gum

• Apple cores

• Fast food packaging

• Till receipts

• Small bags

Anything that is a black binbag or larger, containing litter,should be considered to be fly-tipping and reported to the relevant district council to deal with.

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Definition of an offence

A person is guilty of anoffence if they throw down,drop or otherwise deposit andleave any litter in any place inthe open air. That is unless thedeposit was authorised by law,or the owner, occupier orother person having control of that place has given theirpermission.

Any place in the open air – the exception to this is a place,which is covered, but open tothe air on at least one side, ifthe public do not have accessto it. If the public have accessto it, then a littering offencewould apply.

The littering offence coverslitter dropped in water as wellas on dry land.

The offence therefore applies on:

• Public open spaces: villagegreens, gardens, play areas,football pitches, etc.

• Private land.

• Highways: roads, pavements,footpaths, bridleways,ginnels, etc.

• All places that are open tothe air on at least one side,such as a railway station, busshelter, etc. to which thepublic have access.

• School grounds.

• At the coast, down to thelow watermark.

• Ponds, lakes, reservoirs and rivers.

An alleged offender may beoffered the opportunity to pay a fixed penalty as analternative to prosecution.(There is no requirement for a parish council to offer this option).

If an offence results in a parishcouncil taking action in themagistrates’ court, the penaltyfor committing a litter offenceis a maximum fine of level 4on the standard scale. (This iscurrently £2,500).

Where an offence applies Penalty

AA lliitttteerriinngg ooffffeennccee……..

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Has been committed when:

• An adult walking along a street throws hiscigarette butt in the gutter.

• A rowdy reveller, throws their burger wrapperinto someone’s front garden.

• Someone waiting for a train, in a station,leaves their sandwich wrapper on a seat.

• Someone throws a sweet wrapper from a car window.

• Someone walking along the side of a riverdrops a cigarette packet into that river.

• Someone spits their gum out onto the street.

• Someone leaves an apple core in a busshelter.

• Someone deposits a carrier bag of litter onthe street.

Hasn’t been committed when:

• A child under ten deposits any kind of litter.

• Someone deposits a big bag (black bin bag)of waste in a lay-by (this is fly-tipping andshould be reported to the local authority).

• A person dropping litter has the permission of the landowner to do so.

• Someone drops litter on their own land.

Key points

• The littering offence is relatively easy todefine.

• It is a minor offence and the use of fixedpenalty notices is appropriate for mosttypes of littering offences – unless theperson caught is a ‘repeat offender’when prosecution in the magistrates’court is likely to be more appropriate.

• The littering offence can take place almostanywhere that is open to the air.

GraffitiGraffiti can be described as drawings, patterns,scribbles, messages or tags that are painted,written or carved on walls or other surfaces.They can be as large as a mural on a railwaybridge or as small as someone’s declaration oflove for another, written on a park bench in biro. In some cases they can be racist and/orderogatory and offensive.

The act of graffiti is considered to be criminaldamage, where it takes place without theconsent of the owner of the property. Mosttypes of graffiti will therefore be an offenceunder section 1(1) of the Criminal Damage Act1971 (the intentional damaging of propertybelonging to another) where this involves (forthe purposes of issuing fixed penalty noticesunder the Anti-social Behaviour Act 2003) thepainting or writing on, or the soiling, marking orother defacing of property by whatever means.

However, there are also other relevant offencesunder other legislation, such as the HighwaysAct 1980, section 132. For example, painting or affixing things on structures on the highway.

Section 44 of the Anti-social Behaviour Act 2003sets out all the relevant offences for whichgraffiti fixed penalty notices may be issued.

For the purpose of describing an offence in afixed penalty notice, anyone who commits anoffence can be said to have:

“committed a relevant (graffiti) offenceunder section 44 of the Anti-socialBehaviour Act 2003”, namely: [Set out the offence, e.g. offence under section 1(1) Criminal Damage Act 1971].

The relevant legislation and definitions areincluded in Table 4. This sets out what graffitiare, when an offence takes place, where anoffence can take place and the penalties thatcan be used against those that break the law.

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Murals can be expensive to remove.

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Table 4: Graffiti – Legislation, definitions and penalties

Offence

Graffiti

Legislation

– Anti-social BehaviourAct 2003, sections 43,43A, 43B (as amendedby the CleanNeighbourhoods andEnvironment Act 2005,sections 28, 29 & 30)and section 44.

– Criminal Damage Act1971, section 1(1).

– Highways Act 1980,section 131(2).


Definition

Graffiti equates tocriminal damage, whichis "deliberately, orrecklessly, destroying ordamaging someoneelse’s property.”

Graffiti can bedescribed as drawings,patterns, scribbles,messages or tags thatare painted, written orcarved on walls or othersurfaces.

They can be as large as a mural on a railwaybridge or as small assomeone’s declarationof love for another,written on a park benchin biro.

In some cases they can be racist and/orderogatory andoffensive.


A person is guilty of an offenceif they cause criminal damage,by defacing with “graffiti” anyproperty that is not their own or that they do not have thepermission of the owner todeface with graffiti.

It is defined in:

– The Criminal Damage Act 1971,section 1(1) as intentionally orrecklessly destroying or damagingany property belonging toanother, but is restricted for thepurposes of fixed penalty noticesunder the Anti-social BehaviourAct 2003 to such an offence“which involves only the paintingor writing on, or the soiling,marking or other defacing of,any property by whatevermeans”.

– The Highways Act 1980,section 131(2) as without lawfulauthority or excuse“obliterate[ing] a traffic sign”.

– The Highways Act 1980,section 132(1) as, withoutconsent/authorisation/reasonableexcuse “paint[ing] or otherwiseinscribe[ing] or affix[ing] anypicture, letter, sign or othermark upon the surface of a highway or upon any tree,structure or works on or in a highway”.

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A graffiti offence can takeplace pretty much anywhere.

However, in relation to thepowers available to parishcouncils it will include graffiti on:

• Walls

• Buildings

• Park benches and all streetfurniture

• Street signs

• Cars

• Buses and other vehicles

• Public toilets

• Windows

• Trees

• Fences

An alleged offender may be offered the opportunity to pay afixed penalty notice as an alternative to prosecution. (There is norequirement for a parish council to offer this option, nor shouldthey if the offence is anything other than ‘minor’ graffiti).

If an offence results in a parish council taking action in themagistrates’ court:

• A person found guilty of an offence under section 1(1) of theCriminal Damage Act 1971, where the damage does notexceed £5,000, will be liable to a fine not exceeding level 4 onthe standard scale (which is currently £2,500) and/or a term ofimprisonment not exceeding 3 months.

• Where the damage exceeds £5,000, a person will be liable to a fine not exceeding level 5 on the standard scale (which is currently £5,000) and/or a term of imprisonment notexceeding 6 months.

• A person who is found guilty of an offence under s131(2) ofthe Highways Act 1980, will be liable to a fine not exceedinglevel 3 on the standard scale (which is currently £1000).

• A person who is found guilty of an offence under s132(1) ofthe Highways Act 1980, will be liable to a fine not exceedinglevel 4 on the standard scale (which is currently £2500).


Types of graffiti Unlike litter, graffiti are a little harder todefine. Graffiti vary greatly, not only in theirsize but also their form. They come in manydifferent sizes and shapes – it depends on thematerials used (from a biro to an aerosol can),

the surface that they are written on (a parkbench or a railway bridge) and the style that is used, be it an etching on the glass of a busstop or a piece of so called ‘urban art’covering a large wall.

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Type

Murals

Description

These are the larger pieces of graffiti, often viewed on the side of a railwaybridge, large building, etc. They are often artistic and colourful and require a level of skill, not to mention subterfuge to carry out the act.

Throw up These are harder to define; they may be one or two letters or a list ofnames, they include bubble letters and are normally one or two colours.

Tags The most basic and common form of graffiti; a signature written in spraypaint or a marker. This is the writer’s personal signature.

Etching A very expensive and damaging form of graffiti; this involves the etching ofglass or perspex with a sharp implement. This cannot be washed off andmore often than not, where it occurs, on bus or train windows, bus stops,etc., the affected surface needs to be replaced.

Scratching This is very much the lower end of the severity scale. This is the type ofgraffiti that is often carried out by juveniles where they may scratch theirinitials onto a surface.

When to use a fixed penalty notice for a graffiti offenceUnlike litter, the scale and the cost of damagecaused by graffiti can vary greatly. It can be as“minor” as a juvenile scrawl, offensive in natureby being racially or religiously offensive,homophobic or sexist or so large in scale thatthe damage caused can run into manythousands of pounds.

Given this, a fixed penalty notice is not going to be appropriate for all types of graffiti.

By way of general guidance, a fixed penaltynotice should only be considered for the mostminor of graffiti offences. Anything greater,including racially and/or religiously offensivegraffiti, should be referred to the police orpursued through the magistrates’ court.

Examples of possible courses of action areillustrated below, however the intervention usedshould be based on the circumstances of eachincident (it may be more appropriate to prosecuterather than use fixed penalty notices if it isunlikely that the fixed penalty notice will bepaid). Further advice on alternative courses ofaction can be found at www.together.gov.uk.

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A typical tag – a signature written in spray paint.

Removal powersRemoving graffiti can often be a specialist job;where it is found on public land it is a job forthe district council to remove it and whereprivate property has been affected it is the

responsibility of the owner of that property toremove it if, that is, he or she wants to removeit. Some district councils offer this service, (eithersubsidised or free) to residents in their area.

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Type of graffiti

• Minor scrawl

• Small tag (awriter’s signature)

Possible action

Fixed penalty notices may be the most appropriate course of action forthese offences.

Where fixed penalty notices do not have the desired effect and theoffender continues their behaviour, other interventions should beconsidered. These include warnings, cautions, acceptable behaviourcontracts, prosecutions and ASBOs (through the district council).

Further information on these types of interventions can be found atwww.together.gov.uk.

• Etching of glass Even a small etching, which may appear minor, can be expensive toremove. Often a whole pane of glass has to be replaced, such as in a busstop.

Nevertheless, this particular act by an offender will often be minor in itsisolation. Therefore, regardless of the varying degrees of cost of repair withthis type of offence, the enforcement officer should ask himself, is thedesired outcome a change in behaviour and what will send out the rightmessage to others? And also, if a fixed penalty notice is used will it havethis effect and will it be paid? This will help to establish if a fixed penaltynotice is appropriate or not.

• Mural or a largertag

It is unlikely that fixed penalty notices will be appropriate for these types of offences.

These types of graffiti offences generally cause significant damage to abuilding and the cost of removal can be severe. Prosecution of these typesof offences would most likely be the appropriate course of action.

• Racially and/orreligiouslyoffensive graffiti

These types of offences should always be passed to the police for furtherinvestigation and prosecution.

Key points

• Graffiti can be a minor offence or aserious offence. This depends on theextent of the damage that has beencaused.

• Fixed penalty notices can be consideredfor offences at the minor end of the scale.

• More serious offences should be referredto the police and pursued through themagistrates’ court.

FlypostingAs a very general definition, flyposting has beendefined as “the display of advertising material on buildings and street furniture without theconsent of the owner.” However it is moreaccurately described as “any advertisementdisplayed in contravention of regulations madeunder section 220 of the Town and CountryPlanning Act 1990 (currently the Town andCountry (Control of Advertisements) Regulations1992 (S.I. 1992/666))”. It follows that it is mostlikely to be any placard or poster displayed incontravention of these Regulations or any thatmay replace them.

An extended definition used by ENCAMS (KeepBritain Tidy) defines flyposting as, “any printedmaterial and associated remains illegally fixed toany structure. It excludes approved and managedadvertising hoardings and flyposting sites, andother valid and legally placed signs and notices.It includes any size of material from small stickersup to large posters – often advertising popularmusic recordings, concerts and other events”.

The offence of flyposting is committed undersection 224(3) of the Town and CountryPlanning Act 1990 (displaying an advertisementin contravention of the regulations).

However, there are also relevant offences underother legislation, for example, affixing posters tohighway furniture, Highways Act 1980, section132. Section 44 of the Anti-social Behaviour Act2003 sets out the offences for which flypostingfixed penalty notices may be issued.

For the purpose of describing an offence in afixed penalty notice, anyone who commits anoffence can be said to have:

“committed a relevant fly posting offenceunder section 44 of the Anti-socialBehaviour Act 2003”, namely [Set out theoffence, e.g. offence under section 224(3)Town and Country Planning Act 1990].

Only those who actually put up “flyposters” canbe issued with a fixed penalty notice and not the beneficiaries. The local authority has greaterpowers to take action against the beneficiariesand any information that a parish council cangather should be passed on to the district council.

The relevant legislation and definitions areincluded in Table 5. This further sets out whatflyposting is, when an offence takes place,where an offence can take place and thepenalties that can be used against those that break the law.

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Table 5: Flyposting – Legislation, definitions and penalties

Offence

Flyposting

Legislation

– Anti-social BehaviourAct 2003, section 43,43A, 43B (as amendedby the CleanNeighbourhoods andEnvironment Act 2005,sections 28, 29 & 30)and section 44.

– Criminal Damage Act1971, section 1(1).



– Town and CountryPlanning Act 1990,section 224(3).

Definition

The display ofadvertisingmaterial onbuildings andstreet furniturewithout theconsent of the owner.


Flyposting may be covered by thefollowing offences.

It is defined in:

– The Criminal Damage Act 1971,section 1(1) describes the offence ofintentionally or recklessly damagingany property belonging to another,but it is restricted for the purposesof fixed penalty notices under theAnti-social Behaviour Act 2003 tosuch an offence “which involvesonly the [painting or writing on, orthe soiling, marking or other]defacing of, any property bywhatever means.”

– The Highways Act 1980, section131(2) describes the offence ofwithout lawful authority or excuse“obliterate[ing] a traffic sign”.

– The Highways Act 1980, section132(1) describes the offence of,withoutconsent/authorisation/reasonableexcuse “affix[ing] any picture, letter,sign upon the surface of a highwayor upon any tree, structure or workson or in a highway”.

– The Town and Country Planning Act 1990, section 224(3), describesthe offence of “displayingadvertisement in contravention ofregulations [made under section220].” (NB. This is the principal “flyposting offence).

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A flyposting offence, likegraffiti, can take place prettymuch anywhere.

However, in relation to thepowers available to parishcouncils it will includeflyposting on:

• Walls

• Windows

• Buildings

• Bridges

• Park benches and all streetfurniture

• Street signs

• Road signs

• Trees

• Fences

An alleged offender may be offered the opportunity to pay afixed penalty notice as an alternative to prosecution. (There is norequirement for a parish council to offer this option, nor shouldthey if the offence is anything other than ‘minor’ flyposting).

A fixed penalty notice can only be offered to the person whoput up the offending material.

If an offence results in a parish council taking action in themagistrates’ court:

• A person found guilty of an offence under section 1(1) of theCriminal Damage Act 1971, where the damage does notexceed £5,000, will be liable to a fine not exceeding level 4 on the standard scale (which is currently £2,500) and/or a term of imprisonment not exceeding 3 months.

• Where the damage exceeds £5,000, a person will be liable to a fine not exceeding level 5 on the standard scale (which iscurrently £5,000) and/or a term of imprisonment notexceeding 6 months.

• A person who is found guilty of an offence under section131(2) of the Highways Act 1980 will be liable to a fine notexceeding level 3 on the standard scale (which is currently£1000).

• A person who is found guilty of an offence under section132(1) of the Highways Act 1980, will be liable to a fine not exceeding level 4 on the standard scale (which is currently£2500).

• A person who is found guilty of an offence under section224(3) of the Town and Country Planning Act 1990, will beliable to a fine not exceeding level 4 on the standard scale(currently £2500). Plus, further daily fine of (1/10th of level4)(£250) for each day during which the offence continues after conviction.


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Types of flypostingLike graffiti, flyposting needs furtherdefinition. What is given in the table below isa description of what could be considered tobe flyposting. This is if it does not comply withthe Town and Country Planning (Control of

Advertisements) Regulations 1992, then it isillegal and can be considered to be flyposting.

All of the examples below would be perfectlylawful if they were displayed in a window of a building.

Type

Stickers

Description

These can be anything, from a sticker the size of a postage stamp upwards.They include stickers that might advertise a product – or simply be a stickercarrying an image.

Local eventsadvertising

These often advertise a local car boot sale, a coffee morning, a local shop or a band that might be playing in a pub.

Other publicnotices

The notice that is put up asking for information about a lost cat or dog, a car that is for sale or a political notice.

Posters Often those that advertise the products of large companies and are put upby professional companies that specialise in flyposting. These are what aremore often associated with flyposting – the big poster advertising a newrecord release or a music festival. They are often found on vacant buildingsor places where they will be left for a while, such as on a utility box.

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Possible valid and legally placed signs and noticesThe table below lists adverts/notices that canbe displayed within the law, and as a result donot initially constitute flyposting.

The examples that are given below should notbe taken as a definitive list. Anyone wantingfurther clarification or detail of the restrictionsthat apply to the examples below shouldconsult the Town and Country Planning(Control of Advertisements) Regulations 1992(S.I. 1992/666). Restrictions apply in manycases, for example, on how far in advance of

an event posters may be displayed, the size of an advert and how quickly they should be taken down, for example after a sale or an event.

However, any of these advertisements becomeillegal, and constitute a flyposting offence as described in section 44 of the Anti-socialBehaviour Act 2003, if they are displayedwithout the consent of the owner.

One exception would be any ‘functionalnotices’ displayed by a public body, such as aplanning notice displayed by a local planningauthority – the district council.

Notice

An advertisement that is displayed frominside a building.

Description

A poster in a window.

Functional notices. Such as a planning notice put up by the localplanning authority to advertise an applicationfor planning permission.

For sale or let boards. Boards that are put up to advertise a propertyfor sale or rent.

Advertisements announcing any local eventof a religious, educational, cultural, political,social or recreational character.

This includes notices advertising a parishmeeting, a coffee morning, a local footballmatch, a village or town fair. It also includespolitical election posters.

An advertisement relating to the visit of a travelling circus, fair or similar travellingentertainment to a specified place in a district.

Includes circuses, food markets/fairs, etc.

Advertisements for neighbourhood watchschemes.

Any sign that gives notice that an approvedscheme operates in an area.

When to use a fixed penalty notice for a flyposting offenceFixed penalty notices should only be offered tothose who have been alleged to have committeda flyposting offence. This is to say someone whohas put up the offending material. They are notto be used against the beneficiaries of flyposting.

As has been shown, and like graffiti, the scale of a flyposting offence can vary greatly – fromsmall stickers to posters advertising large scalemusic events.

Again, a fixed penalty notice is not going to beappropriate for every form of flyposting. As ageneral rule, a fixed penalty notice should onlybe considered for the most minor of flypostingoffences and not for ‘repeat’ offences. Thiswould make fixed penalty notices mostappropriate for small stickers or small notices.

Any commercial flyposting, other than the mostminor, should be pursued through themagistrates’ courts, especially when a number of sites have been affected across a parish area.Any intelligence should be passed onto thedistrict council and the police for them topursue, with the additional powers that theyhave to deal with such offences.

Removal powersParish councils are under no obligation toremove flyposting. In relation to public propertythis is the responsibility of the district council.Further, they, the district councils, have additionalpowers to require the removal of flyposting andthey can also remove flyposting and recover any costs that they incur in the process.

District councils can also take legal action and enforce against not only the perpetrators,those that put up any flyposting, but also thebeneficiaries, those that stand to gain from theactivity that the flyposting is seeking to advertise.

However, where there is no risk of damage tothe surface to which the illegal flyposting isattached, such as to a lamppost, then a parishcouncil may take the illegal flyposting down. The best advice would be to only do this afterthe specific case had been discussed with thedistrict council. A parish council will need toremember that it takes down any flyposting atits own risk, and should not attempt to removeflyposting from private land or property.

Key points

• Like graffiti, the scale of offence coveredby the definition of flyposting variesgreatly, from the minor to the major.

• Fixed penalty notices are only ever goingto be appropriate for offences at theminor end of the scale. Anythingconsidered to be more serious should beprosecuted through the magistrates’ court.

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Dog control order offencesSection Three of this Guide has set out what thevarious dog control order offences are. To recap:

• Failing to remove dog faeces;

• Not keeping a dog on a lead;

• Not putting, and keeping, a dog on a leadwhen directed to do so by an authorisedofficer;

• Permitting a dog to enter land from whichdogs are excluded; and

• Taking more than the specified number ofdogs onto land.

For the purposes of describing an offence in a fixed penalty notice, anyone who commits adog control order offence can be said to have:

“committed an offence under [insert title of actual dog control order infringed].”

The relevant legislation and definitions arefurther explained in Table 6. This sets out whatthe dog control order offences are, when anoffence takes place, where an offence can takeplace and the penalties that can be used against those that break the law.

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The new system of dog control orders will be easier to apply.

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Table 6: Dog control order offences – Legislation, definitions and penalties

Offence

Failing to remove faeces

Legislation

Any offence will be committedunder the specific applicabledog control order, as made bythe parish council.

Definition

Not cleaning up after a doghas fouled.

Not keeping a dog on a lead Not keeping a dog on a lead(of a maximum length – if ithas been specified in the dogcontrol order).

Not putting and keeping, a dog on a lead whendirected to do so by anauthorised officer

Not putting a dog on a lead(of a maximum length – if ithas been specified in the dogcontrol order) when told to do so.

Permitting a dog to enterland from which dogs are excluded

Taking a dog onto land fromwhich they have been excluded.

Taking more than thespecified number of dogsonto land

Exceeding the number of dogsthat are allowed in a particulararea.

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This offence applies whensomeone, responsible for adog, fails to pick up anddispose of its faeces in an areato which a Fouling of Land by Dogs Order applies.

This offence applies, whensomeone responsible for a dogfails to ensure that it is on alead when he or she enters anarea to which a Dogs on LeadsOrder applies.

This offence applies whensomeone with a dog fails toput, and keep, it on a leadwhen instructed by a personauthorised by the parishcouncil to do so in an area towhich a Dogs on Leads byDirection Order applies.

An offence is committed whensomeone in charge of a dogtakes it onto a piece of land to which a Dogs ExclusionOrder applies.

An offence is committed whenthe number of dogs walked,on land to which a Dogs(Specified Maximum) Orderapplies, is exceeded.

On any land where a relevantdog control order has beenmade.

Regarding a Dogs ExclusionOrder, this is with theexception of anyone whomakes use of a trainedassistance dog.

Regarding a Fouling of Land by Dogs Order, this is with theexception of anyone (otherthan a deaf person) whomakes use of a trainedassistance dog.

An alleged offender may beoffered the opportunity to pay a fixed penalty as analternative to prosecution.(There is no requirement for a parish council to offer this option).

If an offence results in a parishcouncil taking action in themagistrates’ court, the penaltyfor committing a dog controlorder offence is a maximumfine of level 3 on the standardscale. (This is currently £1,000).


Enforcing dog control ordersEnforcing dog control orders is, on the face of it,relatively easy – the offences are clearly definedand easy to interpret.

However, as has been said in Section Three, it isimportant that a parish council ensures (wherepracticable) that there is appropriate signage in place. Further, it should try to see that thereare suitable bins available for the disposal of dog waste. These may be provided by the district council.

Despite this, there will always be people whowill try and avoid their responsibilities and comeup with excuses to avoid a fine. As an example,it is never a defence for someone to say that heor she was unable to clear up after his/her dogas he or she were without a bag. Further, nor isit a defence to say that he or she did not seetheir dog foul in the first place.

More detail on the practicalities of enforcing isgiven in Section Five of this Guide.

Key points

• The use of fixed penalty notices isconsidered appropriate for the full rangeof dog control order offences.

• Section Three of this Guide includes a fullexplanation of how to make and managedog control orders in a parish area.

Litter, graffiti, flyposting and dogcontrol order fixed penalty noticesand early payment discount optionsA parish council has two options open to itwhen deciding to enforces against those whocommit litter, graffiti, flyposting or dog controlorder offences:

• It can take prosecutions through themagistrates’ court; or

• For minor or ‘first’ offences it may offersomeone, thought to have committed anoffence, a fixed penalty notice, giving them the opportunity to discharge any liability toconviction for the offence.

What the second option means is that if aperson is given the fixed penalty notice, he orshe has fourteen days to pay the penalty. If he orshe then fails to pay the fixed penalty within thattime it is then for the parish council to take thematter further and consider taking that personto the magistrates’ court and seek a convictionfor the original offence there.

Fixed penalty notices should only ever be usedwhere there is sufficient evidence to prosecutean offence in the magistrates’ court, should a fixed penalty notice not be paid.

However, there are a number of importantconsiderations in relation to the level of penaltythat can be set for a fixed penalty notice and,should a parish council decide to offer adiscount for early payment, these need to betaken on board. They are set out below.

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The most important distinction is that thelevel of the “full” fixed penalty for thelittering, graffiti and flyposting offences is set by the principle litter authority/the‘relevant’ local authority (i.e. the districtcouncil), whereas the parish council can setits own level of fixed penalty for its owndog control order notices. This is furtherexplained below.

What to include in a fixed penalty notice isset out in Section Five of this Guide and a draft fixed penalty notice form is availablefrom www.defra.gov.uk/environment/localenv/legislation/cnea.

Fixed penalty notices – litter, graffiti and flypostingWhen issuing fixed penalty notices for litter,graffiti and flyposting offences, a parish councilmust use the level of fixed penalty set by thedistrict council (or equivalent).

The district council will be able to set the fine ata level in the range of £50 – £80. However, ifthe district council hasn’t set the level of fine forthese offences then a parish council is requiredto use the statutory default amount of £75.

Anyone issued with a fixed penalty notice has 14 days within which to pay.

Fixed penalty notices – dog control ordersUnlike the other fixed penalty notices that parish councils can issue for litter, graffiti andflyposting, parish councils can set the level offixed penalty for dog control orders that theyhave made – regardless of the level of fine thata district council may have set for its own orders.

However, the level of fine that a parish councilmay set for a fixed penalty notice for a dogcontrol order offence must be within the bandof £50 to £80. This is to say that they can setthe level of fine at £50, £80 or anywhere in between.

However, if the parish council doesn’t set a level,which they do not have to, then the statutorydefault amount of £75 will apply for any fixedpenalty notice issued under the dog controlorders it makes.

The best way for a parish council to set the level of fine is to agree it at a parish councilmeeting and record the decision in the parishcouncil minutes.

Further, there is nothing to stop a parish councilsetting different levels of fixed penalty fines forthe different dog control order offences. Forexample, a parish council could set the level offine for a fouling offence at £80 and the level offine for bringing a dog onto an area where theyhave been banned at £60. However, this couldbe confusing for those issuing fixed penaltynotices and for the public to understand. As aresult this is advised against as it is consideredgood practice that the level of fine for alloffences is set at the same amount.

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One final consideration is that for any districtcouncil (or equivalent) dog control order, i.e. onethat is made by the district council, that maycover part or all of a parish area, the level of the “full” fixed penalty that can be issued foroffences against that dog control order is set bythe district council. As a result, if a parish councilis to issue a fixed penalty notice for an offenceagainst a district council dog control order intheir parish, the level of penalty offered has tobe the same as the amount set by the districtcouncil for that dog control order. If the districtcouncil hasn’t set one, the statutory default finelevel of £75 must be used.

It follows that it will always be easier if a parishcouncil sets the same level of fine as the districtcouncil, despite having the freedom to set itsown level.

Early payment optionsFor all of the offences for which a parish councilmight issue a fixed penalty notice, litter, graffiti,flyposting and dog control order offences, it hasthe option of offering an early payment discount.(This is an option and not a requirement).

This includes fixed penalty notices issued foroffences committed against a district council’sdog control order.

Whilst a parish council has to offer the samelevel of “full” penalty as set by the districtcouncil, except for their own dog control orders,it does not have to offer the same early paymentdiscount, or make such a discount subject to the same early payment period as the districtcouncil; or, indeed, to offer an early discount at all, even if the district council does so.

The standard period for payment of a fixedpenalty is set in legislation at 14 days.

The various Acts allows a parish council to offera discount for early payment of all fixed penaltynotices, if payment is received by a set dateearlier than the 14 days.

The parish council can set both the earlypayment period that can apply and, withinboundaries, the amount of discount.

The maximum discounted rate that can beoffered for all these fixed penalties is set at £50.

In practice, a parish council may offer an earlypayment discount of a lesser amount than thefull penalty that is set, but not less than £50, ifthe fine is paid before a date set by the parishcouncil – less than the 14 days required for thefull penalty amount.

For example, a parish council may have a fullpenalty rate for some, or all, of the fixed penaltynotices of £80, but offer a discounted rate of£55 if they are paid in less than ten days.

As has been said, a parish council can set thetime that a discount might apply. However, it is considered good practice that this should beoffered in the range of 7 to 10 days, otherwisethere would not be sufficient time for someoneto take advantage of the early payment discount,or it would be too close to the 14 day limit, asto offer no advantage.

Given the potential for different fixed penaltiesand early payment options to be set by both a district council and a parish council,commonsense dictates that the most pragmaticcourse of action will be for all parishes, across adistrict area, to agree with the district council the level of penalties to be applied.

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This is equally important when parishes decide to offer discounts for early payments of penalties.

Key points

• Fixed penalty notices should only beoffered for minor offences.

• A parish council can keep all of theincome from any fixed penalty notices that it issues, including the income that itmight generate from issuing fixed penaltynotices against a district council’s dogcontrol order offences.

• A parish council should consult with thedistrict council to see at what level it has,or proposes, to set for the full range offixed penalty notices.

• When setting the level of fixed penalty fordog control order offences it is stronglyrecommended that if the district councilhas already set a level, then this should befollowed by the parish council. Any parishcouncil that sets different levels of penaltyto the district council, for all or some ofthe dog control order offences, will onlyconfuse members of the public.

Questions and answersWhat should a parish council do if itwitnesses someone deposit a black bin bag containing litter?This should be considered to be fly-tipping anddealt with that way. This means that a parishcouncil will need to report it to the districtcouncil and not issue a fixed penalty notice for a littering offence.

If the district council is to take enforcementaction against the person that may havecommitted such a fly-tipping offence, it isimportant that the parish council provides it withas much information and evidence as possible,so that it is well placed to take it further.

Has someone committed an offence ifsomething falls out of their pocket?No, as he or she would not have knowingly‘deposited’ it. In such cases an enforcementofficer should make the person aware that theyhad dropped something and give them theopportunity to pick it up. If they then failed topick it up they can then be considered to havecommitted an offence and a fixed penalty noticecan be issued.

Has someone committed a graffiti offence if they paint a mural on their own house?No – someone is only guilty of an offence if theyhave caused damage against property withoutthe permission of the owner. If they are theowner or if they have that permission they have not committed an offence.

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Can someone, under the age of ten, beguilty of a graffiti offence?No – anyone under the age of ten cannot beprosecuted for a criminal offence. Instead theirparents should be informed.

Should our staff take down any flypostingthat they come across?This is a decision for a parish council to take andshould only be taken after discussing the specificcase with the district council. However, should a parish council decide to take down anyflyposting it should ensure that it has undertakenall of the relevant risk assessments and that anyflyposting to be taken down is in fact flyposting.

A district council will always be better placed todeal with the removal of flyposting and will haveadditional powers to claim back the costs.

Has an offence against a dog control order,requiring that dogs be kept on a lead, beencommitted if a dog slips its lead?The simple answer is yes, as the dog would beoff its lead in an area where dogs are required tobe on a lead.

However, any enforcement officer needs to usehis/her own common sense and where there isnot a history of a particular dog ‘escaping’, apragmatic approach would be to ask that thedog is put back on a lead and the owner madeaware of the possibility of future action should it happen again.

If a district council hasn’t set a level of fixedpenalty for its own dog control orders canwe use our own?No the statutory default level of £75 must be used.

Do parish councils have to offer earlypayment discounts?No – they only have to offer them if they want to.

If issuing a fixed penalty notice for a districtcouncil dog control order offence, do wehave to offer an early payment option? No – the option to offer an early payment discountor not, is a decision for the parish council.

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Section Five – Enforcing the law

This Section will cover:

• The need to recruit the right people toundertake the enforcement role;

• The need for approved training of allenforcement staff;

• The process for authorising enforcementofficers to work on the street;

• Enforcing against litter, graffiti, flypostingand dog offences;

• What to include in a fixed penalty notice form;

• Using fixed penalty notices as anappropriate response;

• Ensuring fairness and equity;

• The management of fixed penalty notices;

• Recording of evidence – PACE;

• Taking cases to the magistrates’ court;

• Enforcing against young people;

• Health and safety considerations;

• Recording and reporting;

• Using publicity as a deterrent; and

• Answers to some common questions.

The information in this Guide will be furthercomplimented by an approved trainingcourse. It is a requirement for anyone, withthe exception of Police Community SupportOfficers, who is to be authorised by a parishcouncil to issue fixed penalty notices on itsbehalf to have attended the course beforehe or she issues any fixed penalty notices.Information on this course can be found at www.defra.gov.uk/environment/localenv/legislation/cnea.

IntroductionThis Section gives an overview of thepracticalities of enforcing the law, fromrecruiting the right people to take on theenforcement role, in a parish area, to the need for proper recording and reporting.

It is not an explicit guide or ‘user manual’ totell parishes how to enforce the new powers on the ground. This level of detail is for theclassroom and why there is a requirement forauthorised enforcement officers to attend anapproved course prior to going out on the street and issuing fixed penalty notices.

However, what this Section aims to do is to give the person managing this area of a parishcouncil’s work an insight into some of theconsiderations that he or she will need to takeon board in implementing and managing anenforcement service. In essence the broaderissues, which will be complemented by thespecific skills gained by the enforcement staffhaving attended any approved training course.

Identifying the right enforcement staffHaving come to a decision that a parish councilwants to use the new powers and enforceagainst environmental crimes in their area, a parish council will need to agree who willundertake this work on its behalf, who willenforce the law – issue fixed penalty notices and gather evidence against those that break the law.

Full-time or part-time?Before answering the question of who willenforce on behalf of a parish council it isimportant that a parish council comes to a decision of just how much enforcement‘resource’ it is going to require.

Whether or not a parish council requires a full or part-time enforcement officer willhave an important bearing on how it mightgo about identifying the right person to dothe job. If a parish council is of the mindthat it needs a full-time member of staff,then it is more likely to go down the routeof employing a dedicated person to do the work.

However, in the majority of cases, and inparticular across the smaller parishes, a part-time enforcement officer will be all that isrequired, working a limited number ofhours, at the most effective times. If this isthe case then a number of different, morecost effective, options are opened up to aparish council.

The right person for the jobGetting the right people to do enforcementwork is vital; however, a parish council is alwaysgoing to be constrained on at least two fronts,the first being that not everyone is cut out to bean enforcement officer, and secondly, the cost ofemploying staff to do the job, if there are notalready people who could rightfully take on anenforcement role as part of their existing work.

Some of the qualities needed to carry outenforcement work are given in the box below.

Qualities of an enforcement officer

• A thorough knowledge of the relevantlaw

• Confident with people

• Good communication skills

• Ability to record accurate detail

• Thorough

• Presentable

• Authoritative without beingaggressive

• A belief in what he or she is doing

• Someone who can cope with thepossibility of verbal abuse

• The ability to be a public face of theparish council

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The list of qualities is by no means exhaustive;however anyone being considered to undertakeenforcement work should be able to demonstratecompetence in all of the areas identified.

Regardless of who is recruited to take on therole, he or she will need to be of suitablecharacter to do the work. As a minimum, he/she should be able to provide a CriminalRecords Bureau Certificate and have the rightpeople skills.

Having identified the qualities that are required,a parish council needs to consider who canactually do the enforcement work for it.

Filling the enforcement role from withinAs has been mentioned, cost is always going to be a consideration – employing dedicatedenforcement staff comes with a price tag. Ittherefore follows that the first question that aparish council should seek to answer is: are therepeople that it already employs who could takeon an enforcement role as part of their currentjob? This is particularly relevant if the parishcouncil has come to the decision it only needspart-time enforcement staff.

Possible people could include:

• The town centre manager;

• Any parish employed street cleaners or grounds staff;

• Any market supervisors;

• Parish administrators;

• Parking or traffic managementenforcement/regulation officers; and/or

• Town centre ambassadors or community wardens.

Obviously, they would need to demonstrate theright qualities, which have already been given.However if they are suitable for the work andthey are willing to take on the role, alongsidetheir current duties, then this could prove to bea very cost-effective way of enforcing the powers.

The list of possible people deliberately doesn’tinclude parish councillors. As has been saidbefore, this is in line with the general principlethat parish councillors may not act as employeesof their own council.

However, if a parish council doesn’t feel that ithas sufficient resources amongst its own staff toenforce the new powers then it is going to haveto look further a field for people to take on therole for it.

External enforcement optionsJust because there isn’t sufficient resource withina parish council to take on enforcement work,this doesn’t mean that a parish council has torecruit someone specifically to take on the role.Yes this is an option, yet there are others thatare worth exploring. A few examples are givenbelow:

• Using volunteers;

• Taking advantage of the district council’senforcement resource;

• Using Police Community Support Officers;

• Sharing an enforcement resource; and

• Contracting the service out.

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There is nothing to stop parish councils fromusing volunteers to enforce in the parish.However, there are a few considerations that a parish council will need to take on board before going down this route.

A parish council will need to ask itself if it ishappy for what is a professional, possiblyconfrontational role, to be taken on by avolunteer? Further, volunteers might not besustainable, in that they might not be able todedicate the time that is required for the role.

Another option open to parish councils is onethat might come about through negotiation withthe district council, where a parish council mightbe able to ‘buy’ or ‘trade’ some time off thedistrict council’s own enforcement staff, if, thatis, it has them. This would have the addedadvantage of bringing additional enforcementresources to a parish area, without themanagement and administrative costs that mightbe associated with a parish council recruitingand managing its own staff.

A further option worth exploring is the use ofPolice Community Support Officers (PCSOs). The Police Reform Act 2002 (as amended by the Clean Neighbourhoods and Environment Act 2005) specifically allows PCSOs to issue fixed penalty notices on behalf of ‘relevant’authorities, which parish councils are, if theyhave been authorised to do so by their chiefpolice officer. Further, there is no requirement forthem to have attended any approved trainingcourse. However, to ensure a professional serviceit is recommended that they do undertake theapproved training.

Whereas in the past there was a reluctance forPCSOs to take on enforcement work, given thereality today that funding, in part for PCSOs, willneed to be found from the wider community,and not just from the Police, a parish councilmight be able to negotiate with the chief policeofficer for an area based PCSO to dedicate partof his or her time to parish enforcement work;this for an agreed fee.

As well as exploring the options for sharing anenforcement officer with a district council, parishcouncils in a particular area might considercoming together and sharing the cost of anenforcement officer – either full or part-time.This would have many of the advantages of a parish having its own enforcement officer, yet at a reduced cost.

A final option might be to contract the serviceout to a third party provider, to deliver an agreedservice on behalf of the parish council. Thiswould come at a cost.

Having considered these options, and others, theparish council may decide that it wants to recruitits own dedicated enforcement staff. This againwill come at a cost, yet this too has advantages.For one, the parish council will be able to run itsown independent enforcement service, freeing it up to tackle the issues that it wants, when itwants to.

There are a number of options open to a parishcouncil when it comes to recruiting its enforcementstaff; however what isn’t an option and where thereshouldn’t be compromise is on ensuring thatwhoever is recruited to do the job is of the rightcharacter and can demonstrate the right qualitiesfor what is a very demanding role.

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The need for approved trainingHaving recruited enforcement staff, throughwhatever means, a parish council needs toensure that they are properly trained.

The Environmental Offences (Fixed Penalties)(Miscellaneous Provisions) Regulations 2006place a very important condition on all parishcouncil enforcement staff, in that they musthave attended and successfully completed aGovernment approved training course beforethey can be authorised by a parish council toundertake enforcement work on its behalf.

This training requirement applies to anyoneissuing fixed penalty notices on behalf of aparish council, with the exception of PoliceCommunity Support Officers.

The training requirement is not optional; it is anabsolute minimum requirement. However, thisdoes not limit a parish council from offering anddelivering any additional training it might see fitfor its enforcement staff.

In addition, it is considered wise that anyonemanaging an enforcement service, on behalf ofa parish council, also attends the training course,regardless of whether he or she is going to takeon a direct enforcement role or not, as it willgive him or her a better understanding of howthe powers will be enforced on the ground.

Details of approved training courses can befound on the Defra website: www.defra.gov.uk/environment/localenv/legislation/cnea.

Authorising enforcement officersHaving recruited and trained its enforcementstaff, a parish council then needs to ensure that they are properly authorised, and are‘authorised officers’ to undertake enforcementwork on behalf of the parish council.

A parish council must ‘authorise’ any ‘authorised officer’, in writing, before theyundertake any enforcement work and issue any fixed penalty notices on their behalf. That is unless it is a Police Community SupportOfficer, who is already authorised.

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In essence anyone who is to issue fixed penaltynotices on behalf of a parish council, with theexception of Police Community Support Officers,needs to be authorised to do so in writing.

Though not a requirement, it is considered goodpractice for any parish council authorising othersto issue fixed penalty notices on its behalf tolimit the length (in time) of that authorisation.

In practice this would mean stating a date thatthe authorisation would be valid to. On reachingthis date, the parish council would then need toissue a new letter of authorisation, should itwish the ‘person’ to continue to be authorisedon its behalf.

A parish council should ensure that it keeps anycopies of letters that it issues authorising othersto issue fixed penalty notices on its behalf.

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Defining an authorised officer

What the Act says:

An employee of the authority (the parishcouncil) who is authorised in writing by theauthority (the parish council) for the purposeof giving notices (issuing fixed penalty notices).

What this means:

The parish council’s own staff – dedicatedenforcement staff or those that have anotherrole with the parish council, as well asenforcement.

Any person who, in pursuance ofarrangements made with the authority (theparish council), has the function of givingsuch notices (fixed penalty notices) and isauthorised in writing by the authority (theparish council) to perform that function.

Those staff that are not ‘directly’ employedby the Parish Council, but are authorised bythem in writing to undertake enforcementwork and issue fixed penalty notices on theirbehalf. This would include externalcontractors.

An employee of such a person who isauthorised in writing by the authority (theparish council) for the purpose of giving suchnotices (issuing fixed penalty notices).

This includes the staff of anybody contractedand authorised by the parish council toundertake its enforcement on its behalf. Thismeans that if a parish council has authoriseda contractor to undertake its enforcementwork on its behalf, then it also needs toauthorise, in writing, any individuals thatwork for the authorised body (the contractor).

A letter authorising a parish council employeeto issue fixed penalty notices on its behalf:

Anytown Parish Council To whom it may concern

This letter authorises Joe Bloggs, an employeeof Anytown Parish Council, to issue fixedpenalty notices under:

• Section 88 of the Environmental ProtectionAct 1990;

• Section 43(1) of the Anti-social BehaviourAct 2003; and

• Section 59 of the Clean Neighbourhoodsand Environment Act 2005.

In the parish area of Anytown Parish.

This authorisation remains valid until 31st December 2006, unless previouslyrevoked by Anytown Parish Council.

A N Other

Anytown Parish Council Clerk

A letter authorising a contractor and itsemployees to issue fixed penalty notices on a parish council’s behalf:

Anytown Parish Council To whom it may concern

This letter authorises John Smith andAssociates and employees (ALL RELEVANTEMPLOYEES MUST BE NAMED), to issue fixedpenalty notices under:

• Section 88 of the Environmental ProtectionAct 1990;

• Section 43(1) of the Anti-social BehaviourAct 2003; and

• Section 59 of the Clean Neighbourhoodsand Environment Act 2005.

In the parish area of Anytown Parish.

This authorisation remains valid until 31st December 2006, unless previouslyrevoked by Anytown Parish Council.

A N Other

Anytown Parish Council Clerk

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Equipment

• Uniform

• High visibility jacket

• Fixed penalty notice book

• PACE evidence recording notebook

• Mobile phone – with important phonenumbers programmed in

• Identification badge

• Letter of authorisation

• Digital camera

• Stout walking shoes

• Map

• Torch

What to include in a fixed penalty notice formAlthough under the legislation, the Governmenthas the power to prescribe the form to be usedfor fixed penalty notices, it is not intended tomake use of this power at the present time.

Parish councils are not, therefore, required to use a particular form of notice.

However, it is a legal requirement that a fixedpenalty notice:

• Gives reasonable details about thecircumstances of the alleged offence;

• States that no proceeding for the offence willbe instituted if the fixed penalty is paid within14 days;

• States the amount of the fixed penalty; and

• Gives details of how the fixed penalty can be paid.

An example fixed penalty form can be found on the Defra website at: www.defra.gov.uk/environment/localenv/legislation/cnea. Parishcouncils should tailor the form to meet theirown requirements.

Where an authority (parish council) provides fora discount for early payment of a fixed penalty,the notice will need to provide details, andnotices should also state prominently that non-payment is likely to result in prosecution for thealleged offence, and the maximum fine payableon conviction.

If producing a “fixed penalty notice book”, each notice should be printed with its ownunique number.

Equipping an enforcement officerTo deliver a professional enforcement service it isimportant that anyone carrying out the role ofan enforcement officer is properly equipped todo the job.

The table below sets out some of the possibleequipment needs of an enforcement officer.

Enforcing against litter, graffiti,flyposting and dog offencesThe enforcement powers that have been givento parish councils need to be used in a fair, even-handed, consistent and managed way – whatfollows is an overview of the principles that needto be followed to ensure that a parish councilusing the powers makes sure that this happens.

What this Section will not do is set out in anygreat detail the processes that authorisedenforcement officers need to follow whenundertaking their enforcement work; this will becovered by the training course that needs to beattended by anyone who is to be authorised by a parish council to undertake enforcement workon its behalf.

The overview of the enforcement role isexpanded under the following headings:

• Using fixed penalty notices as an appropriateresponse;

• Ensuring fairness and equity;

• The management of fixed penalty notices;

• Recording evidence and PACE interviews; and

• Taking cases to the magistrates’ court.

Using fixed penalty notices as anappropriate responseSection Four of this Guide has already made thepoint that the use of fixed penalty notices willnot be appropriate for all of the offences forwhich an authorised officer of a parish councilcan issue them.

The use of fixed penalty notices should only beused for the more minor of offences. Further, ifsomeone is found to be a repeat offender, andhas been issued with a fixed penalty notice onmore than one occasion, it can be argued thatthe sanction of a fixed penalty notice has clearlyfailed to change that person’s behaviour. In thisinstance, to continue to issue fixed penaltynotices is futile and as a result a parish councilshould consider taking legal action against sucha repeat offender in the magistrates’ court.

As a consequence of this advice, it is importantthat a parish council maintains a log of all thefixed penalty notices that it issues so that it canbe checked and repeat offenders identified.

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High quality public spaces are valued by all of thecommunity. Enforcement can see that they are protected.

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When to use a fixed penalty notice and when not to

Offence

Litter

Action

Minor littering

Sanction

Fixed penalty notice

Repeated littering Magistrates’ courtprosecution

Graffiti Small scribble Fixed penalty notice

Repeated minor offences –such as small scribble

Magistrates’ courtprosecution

Anything with a high cost of repair


Flyposting Small unauthorised notices orstickers


Repeat minor offences Magistrates’ courtprosecution

Dog control order Any single offencecommitted in relation to arelevant dog control order


Repeat offending against oneor a number of the differentdog control order offences


Anything with a high cost ofremoval


Commercial flyposting Magistrates’ courtprosecution

Ensuring fairness and equityWhen a parish council takes the decision to usethe enforcement powers open to it to tackleenvironmental crime in its area, it needs to makesure that there are systems in place to ensurethat they are used in a fair and balanced way.Failure to do so, or for there to be a perceptionthat this is the case, could result in the public’sconfidence being undermined.

What this means in practice is that a parishcouncil must ensure that equal standards areapplied when enforcing the law and that peopleare treated equally when enforcement action isrequired. In short:

• Residents and non-residents of a parish shouldbe treated the same;

• There should be no preferential treatment offamily and friends of members or officers of a parish council; and

• Equal standards are applied when deciding topursue action through the magistrates’ court.

Further, when applying the law in relation to the range of offences, a parish council needs toconsider where the “boundaries” are. It needs to consider whom it will enforce against and forwhat type of offences. It will need to state thisin any enforcement strategy (see Section Two) so that it can be ensured that the law is appliedconsistently and appropriately.

An example of an exception to the abovewould be when the health and safety of anenforcement officer could be compromisedwhen issuing a fixed penalty notice – forexample, against someone who was under the influence of drugs or alcohol.

Applying the lawIn coming to a decision as to who to enforceagainst and for what type of offence, thefollowing issues are worth further consideration.

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Enforcing againstjuveniles

Enforcing against those aged under 17 is more complicated. For example,someone under the age of 17 cannot be interviewed without the presenceof a ‘responsible adult’. Any parish council will need to consider itsprocedures for this area very carefully before going down the route ofenforcing against this age group. Further advice is given later in thisSection.

Enforcing againstthose aged under 10

Enforcing against children, aged under ten, is simply not an option. A childunder 10 is below the age of criminal responsibility, and has committed no offence.

Issue Discussion

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Enforcing againstthose that refuseto give their name and address

Prior to the changes made by the Clean Neighbourhoods and EnvironmentAct 2005, it was not an offence for someone not to give or to give anincorrect name and address to an enforcement officer issuing a fixedpenalty notice.

The Act changes this, giving an authorised officer the power to require the person to give his or her name and address when required to do so,and further, also making it an offence for him or her to give false orinaccurate information.

If someone fails to give an enforcement officer his or her details, or if theofficer suspects that he or she has been given false information, the officershould record as much information about the person as possible and, if the person can later be identified correctly take action against him or herthrough the magistrates’ court, for the original offence that he or she is alleged to have committed and for the offence of failing to providecorrect details.

Enforcing againstthose under theinfluence of drugsor alcohol

Enforcing against those that might be under the influence of drugs oralcohol is always going to carry additional health and safety risks. If anenforcement officer suspects that someone is ‘under the influence’ he orshe should at least ensure that they are accompanied by a member of thepolice when issuing a fixed penalty notice.

(A parish council that uses the enforcement powers will need to undertakea full health and safety assessment as a matter of course to ensure that itsstaff are properly protected).

Enforcing againstthe homeless/vagrants

A parish council will need to consider the practicality of enforcing againstsomeone who is homeless. For a start he or she might well have limitedresources and be unlikely to be able to pay a fixed penalty notice; thiswould lead, almost automatically to a requirement to prosecute the person.

A more pragmatic solution would be to inform the person of any offencethat they may have committed and caution that next time he or she will be prosecuted.

Sending fixedpenalty noticesthrough the mail

There is no requirement to issue a fixed penalty notice on the spot.

As an alternative, a parish council, having obtained the address of thealleged offender can instead issue a fixed penalty notice by post.

Issue Discussion

The management of fixed penalty noticesThe issuing of a fixed penalty notice is only thestart of the process of enforcement against analleged offender. If the fixed penalty is paid thenno further action is required; if not, thenprosecution in the magistrates’ court for theoriginal offence should ensue. As a result, thereis an absolute requirement to ensure that allfixed penalty notices and related information are properly managed and recorded.

It follows, therefore, that a parish council mustconsider how it will manage ‘issued’ fixedpenalty notices and the work that they willgenerate and ensure that there are propersystems in place to make sure that this happens.

Common sense dictates that all fixed penaltynotices issued need to be logged by the parishcouncil that has issued them. This informationcan best be placed on a computer spreadsheetand backed up with the safe storage of a copyof the original fixed penalty notice.

Each fixed penalty notice that is issued musthave its own individual number. This is importantfor managing fixed penalty notices, and anysubsequent prosecutions in the event of non-payment, as this number can be used as the casenumber with all information relating to theoriginal alleged offence being cross referencedback to it.

Using computer databases or spreadsheets– what information to record? Any computerised system for recording andtracking offences could include informationunder the following headings:

• Fixed penalty notice number (case number) –the individual number on each fixed penaltynotice issued;

• Full name of the alleged offender;

• Full address of the alleged offender;

• Date of birth of the person if under 18;

• Name of the person issuing the fixed penalty notice;

• Date of the alleged offence;

• Description of the offence;

• Where the alleged offence took place;

• Which section of the relevant legislation theoffence was committed against;

• Further information – to cross referencewhere any further information, relevant tothe alleged offence and/or recorded as partof a formal interview, following caution,with an alleged offender, can be found, i.e. an enforcement officer’s notebook,photographic evidence, etc.;

• Payment received – to record the date whena payment was received;

• Case closed – to indicate that followingpayment a case has been closed;

• Further action – to record what action hasbeen taken following the non-payment of apenalty, such as the referral of a case to theparish council’s solicitors to pursue, etc.; and

• Accrued costs to the parish council.

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Whatever system a parish council chooses toimplement, it needs to ensure that it is properlymanaged and kept up to date at all times.

Recording evidence and PACE interviewsIn addition to a fixed penalty notice ‘book’ anenforcement officer will need to be equippedwith a notebook. This is for the recording ofinformation and evidence in support of anyalleged offence for which a fixed penalty noticehas been issued, or for offences that areconsidered to be too serious for dealing with by a fixed penalty notice.

Notebooks for recording informationand evidenceThere are no specific requirements fornotebooks to be of a certain type or form,yet the following advice may be useful.

Notebooks should:

• Be small, durable, bound and hard-backedand easy to hold;

• Have both individual issue numbers (theirown unique number) and have numberedpages; and

• On the inside front cover have thefollowing wording: “You do not have tosay anything. But it may harm yourdefence if you do not mention whenquestioned something which you later relyon in court. Anything you do say may begiven in evidence.” So that this can beread out in full before a formal interview is undertaken of someone suspected ofcommitting an offence.

As part of the approved training for enforcementstaff, the importance of gathering goodevidence and information will be fully explained,as will the rules for interviewing someone under caution, who has allegedly committed an offence.

It is important for a parish council that any suchadditional information, over and above what isrecorded on the fixed penalty notice, is recordedin such a way that it can be used shouldsomeone issued with a fixed penalty notice failto pay and prosecution for the original offenceneeds to be undertaken in the magistrates’ court.

In essence, such information falls into twocategories: background information and witness statements and interviews undertakenunder caution.

Background information and witness statements– Are just that. Background information to anoffence should be recorded in the notebook andshould include any relevant information. It couldinclude a description of the alleged offender, theweather and visibility on the day, the attitude ofthe offender when approached and a fulldescription of the offence.

This information is particularly important if theenforcement officer suspects that the allegedoffender has given false details so he or she canfollow up a prosecution, should this prove to bethe case.

Witness statements, from anyone who may have witnessed a particular offence can be veryvaluable and should also be recorded in thenotebook. The witness should sign any statementand his or her full contact details should also be recorded.

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Interviews under caution – are known as PACEinterviews (Police and Criminal Evidence Act1984). PACE is primarily concerned with thepowers and duties of the police, the rights ofsuspects and the admissibility of evidence.Section 67(9) of PACE places a duty on personsother than police officers "who are charged withthe duty of investigating offences or chargingoffenders" to have regard to any relevantprovisions of the Codes of Practice. These Codesneed to be followed when interviews are beingundertaken under caution.

The need to ensure that all relevant informationis properly recorded and safely stored cannot bestated strongly enough as this information couldbe used as evidence in the magistrates’ court.The strength of any case for prosecution will relynot only on the quality of the information butalso, in the case of information that is gatheredas part of an interview under caution, that hasbeen gained correctly and in line with therequirements of PACE.

Taking cases to the magistrates’ courtThere will be times when a parish council willneed to take those that fail to pay a fixedpenalty notice to court or when the offence thathas been committed is considered to be toosevere for the alternative of a fixed penaltynotice to be offered. Further, if a person beingissued with a fixed penalty notice fails to givetheir details or gives inaccurate details, and a parish council can subsequently identify them, again the parish council will need toprosecute them for this offence through themagistrates’ court.

The reason that it is important to prosecute theoriginal offence, in the event of non-payment of a fixed penalty, is that failure to do so canundermine the credibility of a parish council’senforcement regime and in time can lead to lowpayment rates. This is because those issued with fixed penalty notices will think that they donot need to pay, as the parish council will donothing about it.

And in the case of enforcing against the moreserious of offences, taking such cases straight tothe magistrates’ court signals the fact that thatthe parish council is serious about taking actionagainst environmental crime in its communities.

However, taking any case to court can be anexpensive process, not only in the time that isrequired to prepare a case but also the costs ofengaging a solicitor.

It is important that a parish council has fullythought out how it plans to prosecute casesthrough the magistrates’ court and has astrategy in place to see that this can beachieved. This needs to be considered as part of any enforcement strategy, for which furtherguidance is given in Section Two of this Guide.

There are a number of ways that a parish councilmight want to consider in order to take cases tothe magistrates’ courts. It might want to takethe case to court itself and represent itself at atrial before the magistrates, it might want to seeif the district council might be prepared to do iton its behalf, or alternatively, it may wish toengage the services of a solicitor to take anycases and represent the parish council.

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Whilst the principle of a parish council pursuinga case on its own might appear attractive on thegrounds of cost, unless it has ready access tosomeone with ‘legal’ experience, at least in theearly days of taking cases to the magistrates’court, the only sound advice that can be offeredis that a parish council should consider engagingthe services of a solicitor. Otherwise it runs therisk of taking up large amounts of an officer’stime in preparing cases and still fail to securesuccessful prosecutions in the magistrates’ court.

Whichever route a parish council goes down inpursuing cases through the magistrates’ court,they are always going to be easier to manage if all of the relevant paperwork is in order andthere is sufficient supporting evidence to ensurethat prosecutions are not only successful interms of prosecuting an offender but a parishcouncil is also successful in claiming back some,or all, of its costs associated with bringing a prosecution.

Additional information to record forcourt prosecutionsThere are a number of reasons for takingboth cases of non-payment of fixedpenalties and the more serious cases to the magistrates’ courts; however mostimportant is the need to secure convictionsand to claim back some of the costs thatwould have been incurred by a parishcouncil in taking the case to the magistrates’court in the first place.

To do this, to put together a successful caseand to ensure that a parish council gets itscosts awarded, it will need to ensure that it is able to provide the magistrates with as much relevant, clear and concise

information as the prosecution can present.This is so that any magistrate has the fullcontext – a very clear, wholly supportable,picture of what happened.

The information that a parish council shouldmake available to support any prosecutionand claim for costs should include:

• Full notes and statements;

• An official letter from the chief financialofficer of the parish council (normally theclerk) stating that the payment of thefixed penalty notice was not received bythe date that the fixed penalty noticeexpired;

• Photographic evidence;

• The effect of environmental crime on anarea;

• The cost to residents of an area to clear up environmental crime;

• The specific costs of clearing up theoffence that has been brought – wherecosts can be provided; and

• The cost of bringing the prosecution andthe time taken to do so.

Enforcing against young people In law, a fixed penalty notice can be issued toanyone over the age of ten. However, parishcouncils issuing fixed penalties notices tojuveniles are recommended to adopt specialprocedures. This is because any enforcementaction involving juveniles needs to beundertaken carefully and the views of children’sservice authorities, particularly Youth OffendingTeams, should be integral to decisions taken inregard to juvenile enforcement.

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Further, different procedures are recommendedfor 16 and 17 year olds, and for childrenbetween 10 and 15 years of age.

This Section will offer advice on issuing fixedpenalty notices to young people aged 16 and 17 only. Defra has issued separate, specific,guidance for issuing fixed penalty notices tothose aged 10 to 15, this guidance is available at www.defra.gov.uk/environmnet/localenv/legislation/cnea. Parish councils who do not wish to follow the procedures outlined in thisguidance are strongly advised not to issue fixedpenalties to anyone under the age of 16.

Fixed penalty notices may be issued to 16 and17 year olds, once the age of the offender hasbeen ascertained. (If there are doubts as towhether the offender is 16 then a fixed penaltynotice should not be issued and the proceduresfor 10 to 15 year olds should then be followed).

Having issued a fixed penalty notice the localYouth Offending Team should be informed, forinformation purposes only.

A fixed penalty notice will not be appropriatewhere the young person is suffering from amental handicap, from a mental disorder wherea young person appears to be mentallydistressed or confused, or from anothervulnerability that impairs his or herunderstanding of what is going on (includingsubstance abuse). In such cases an enforcementofficer should consider involving the police.

If a young person has committed what isconsidered to be a serious offence, such as adamaging piece of graffiti then the enforcementofficer should involve the police so that they canpursue any action, if considered appropriate.

It is important to remember that parishenforcement officers do not have powers of

detention, so if at anytime a young person, orany person for that matter, decides to leave thescene when challenged, they cannot stop themfrom doing so.

If this happens the enforcement officer shouldrecord a description and find out if anyone inthe vicinity knows the identity of the person whois alleged to have committed the offence andthen serve a notice on that person at a laterdate, when they have been identified.

Youth Offending Teams (YOTs)YOTs are key to the success of the youthjustice system. There is a YOT in every localauthority in England and Wales. They aremade up of representatives from the police,Probation Service, social services, health,education, drugs and alcohol misuse andhousing officers.

Each YOT is managed by a YOT managerwho is responsible for co-ordinating thework of the youth justice services.

Because the YOT incorporates representativesfrom a wide range of services, it can respondto the needs of young offenders in acomprehensive way. The YOT identifies theneeds of each young offender by assessingthem against a national assessment. Itidentifies the specific problems that make theyoung person offend as well as measuringthe risk they pose to others. This enables the YOT to identify suitable programmes toaddress the needs of the young person withthe intention of preventing further offending.

Local YOT contact details can be found atwww.youth-justice-board.gov.uk/YouthJusticeBoard/YouthOffendingTeams/ContactDetails.htm

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A proportionate responseTo issue a young person, under 18, with afixed penalty notice for the same amount assomeone 18 or over could be considered tobe “tough justice”.

That said, a parish council might wellconsider that young persons should face thesame penalty, as this would be an effectivedeterrent. Any parish council taking thisview would be completely within their rightsto do so.

Health and safety considerationsEnforcement work, the issuing of fixed penaltynotices, passes in the majority of cases without incident.

However, enforcement work isn’t without itsrisks and there is always a risk that an enforcementofficer, in the course of his or her work could besubject to verbal abuse, the threat of violence orviolence itself. Thankfully such occurrences arerare. However, where the person undertakingenforcement work on behalf of a parish councilis a parish council employee, or volunteer forthat matter, then the parish council has a duty of care to ensure his or her health and safety at all times.

As a result, a parish council will need toundertake a full risk assessment of the workinvolved and ensure that there are proper androbust procedures put in place to ensure that its staff are equipped to deal with any hostile situations.

It is not for this Guide to stipulate what a parishcouncil should do in this respect as theresponsibility rests with the parish council.

Use of fixed penalty receiptsThe Environmental Offences (Use of FixedPenalty Receipts) Regulations 2006(www.defra.gov.uk/environment/localenv/legislation/cnea) allow parish councils to usefixed penalty receipts to help them meet thecosts of their functions in relation to litter,graffiti, flyposting and dog control order offences.This means that they can spend this income tosupport this work, including the costs of:

• Employing enforcement staff;

• Administering the enforcement work, includingtaking prosecutions to the magistrates’ court;

• Equipping and resourcing staff;

• Training staff;

• Clean ups;

• Signage; and

• Related education and campaigning work.

It is important that the associated costs ofrunning an enforcement service are recorded sothat any income generated from fixed penaltynotices can be shown to be being spent on theright things.

However, if a parish council is a ‘Quality Parish Council’ it can spend any incomegenerated by fixed penalty notices on any other of its functions.

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Despite there being this greater freedom forQuality parish councils it is considered unlikelythat a parish council will cover the costs of itsenforcement service through fixed penalty noticeincome alone, certainly not in the first year ofrunning a service.

Recording and reportingGiven the requirements above, namely therestrictions on what any fixed penalty noticeincome can and cannot be spent on, there is arequirement for parish councils to ensure thatthey maintain proper and complete records,showing the full audit trail of income generatedfrom fixed penalty notices and prosecutions andhow that income has offset the costs of anyenforcement service.

Further, the Environmental Offences (Use ofFixed Penalty Receipts) Regulations 2006 requireparish councils to supply to Government detailsof their fixed penalty receipts as it requires.

In practice, at the end of the financial year Defrawill write to each parish council to requestcertain information.

For each of the offences the Government willrequire the following:

• The number of fixed penalty notices issued;

• The number of fixed penalty notices paid;

• The number of cases taken to court; and

• The total amount of money collected.

Any parish council using the enforcementpowers should ensure that it has the systems inplace to ensure that reporting this information is not a chore.

The reason that Government collects thisinformation, which it already does from districtcouncils, is so that it can monitor the use of thepowers and to provide it with the informationthat it requires should it need to makeimprovements to the powers that are available.

Using publicity as a deterrentThe main point of enforcement is to changepeoples’ behaviour so that they don’t offend in the first place, and if they do, to stop themoffending again. It is for this reason that a parishcouncil should “shout” about its achievementsand use every appropriate opportunity to tell the wider community of the action it has takenin issuing fixed penalty notices and of anysuccessful prosecutions in the magistrates’ court.

The media, the local newspaper and radio, ifmanaged well, can become powerful allies andassist a parish council in getting its messages toa wider audience and ultimately help to changebehaviour and so lead to reductions in theproblems found on the street.

Questions and answersIf we buy the time of a PCSO, do they haveto go through the approved training?No – they do not require the training, nor dothey need to be authorised in writing by theparish council to issue fixed penalty notices.However it is considered good practice for them to attended the approved training course;this to ensure high standards.

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Is the Government approved training coursejust for authorised enforcement officers of a parish council?It is predominantly for those who intend to beauthorised officers, yet anyone who is going torun an enforcement service, such as a parishclerk, would benefit from attending the courseto find out how enforcement is intended towork on the ground.

Should we tell our insurers that we plan toundertake enforcement work?Yes, they will want to know what your plans areand how you will manage any additional healthand safety risk.

If a PCSO issues a fixed penalty notice on our behalf, who gets to retain the income,the parish council or the police?The parish council; any income generated goesto the parish council and not the police.

When should an enforcement officer beissued with a letter of authority?The letter of authority should only be issuedafter the officer has successfully completed theGovernment approved training course.

Can fixed penalty notices be issued topeople who throw things out of their car windows?Yes they can, assuming that they can beidentified and contacted. However, it is onlyrecommended to do so if the person droppinglitter from a car is clearly identified and there issufficient evidence to support a prosecution, if any fixed penalty notice isn’t paid.

Do all offenders need to be interviewedunder caution?No – if the enforcement officer is happy with the evidence that he or she has and it is properlyrecorded, having witnessed an offence all he or she needs to do is request the details of thealleged offender and offer them the fixedpenalty notice. The point of the “interview undercaution” is to obtain additional information tosubstantiate any allegation. Further details ongathering evidence and interviewing undercaution will be given on the Governmentapproved training course.

Do enforcement officers need to have a Criminal Records Bureau (CRB) Check? There is no statutory requirement, yet it isstrongly recommended that they provide a CRBCertificate and are required to do so annually.

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Section Six – Further information

This Section includes a:

• Glossary; and

• Contacts list.

IntroductionThis Section provides further information. TheGlossary further explains some of the terms thatappear in the Guide and the Contacts are justthat – contacts of Government departments,agencies and other organisations that might beable to assist a parish council with informationand support to help improve local environmentalquality in their area.

GlossaryAccess Access authorities are generally authority the local highway authority, except

in National Parks, where it is theNational Park Authority.

Access land The Countryside and Rights ofWay Act 2000, introduced a newright for people to walk over areasof open countryside and registeredcommon land in England andWales. There are some 935,000hectares of access land; areas ofmountain, moor, heath, down andregistered common land, to whichthe public now has access.

Act The ‘Act’, where referred to inthis Guide, is the CleanNeighbourhoods and EnvironmentAct 2005.

The aim of this Act, and of theamendments made under it, is to give local authorities, theEnvironment Agency, parishcouncils and a number of otheragencies and bodies a range ofnew and improved powers to helpmake where we all live, work andenjoy our recreation better places.

Authorised An authorised officer is someone officer authorised, in writing, by the

parish council to issue fixedpenalty notices on its behalf.

BVPI 199 BVPI is short for Best ValuePerformance Indicator.

BVPIs are used to measure andreport to Government on variousaspects of a local authority’sperformance, in relation to thework that it does.

BVPI 199, measures a districtcouncil’s performance in relationto the amount of litter anddetritus that is found on thestreet. To collect data for thisindicator each district council hasto undertake 900 individualsurveys in any one year.

A district council should be able tomake the results of these surveysavailable to a parish council.

Byelaws The Act removes the ability ofboth primary and secondaryauthorities (including district andparish councils) to make any newdog byelaws, which are nowcovered by dog control orderoffences. That said, any byelawsthat are already ‘in place’ willremain so, until such time asthey may be replaced with a dogcontrol order (or they are expresslyrevoked). A parish council is underno obligation to replace anybyelaws with dog control ordersunless it wants to.

Commercial Commercial dog walkers are walkers people who walk other peoples'

dogs for them. Some commercialdog walkers are known to walk upto 15 dogs at a time. One of theconsequences of this is that theymight not be able to control all ofthe dogs at once.

CRBC Is a Criminal Records BureauCertificate, which is issued by theCriminal Records Bureau followinga check on the individual’s criminalrecord. More information isavailable at www.crb.gov.uk.

Defra The Department for Environment,Food and Rural Affairs, is theGovernment department that isresponsible for leading on localenvironmental quality policy.

Dog control Are a new system, brought into orders effect by the Act and Regulations

made under it, to control theactivities of dogs (those in controlof them) on areas of land inrespect of which a control order ismade. The orders can be made toapply to land, normally open tothe air, to which the publicnormally have a right of access.Dog control orders replace theprevious system of byelaws andthe Dogs (Fouling of Land) Act1996, which has been repealed.

Explanatory These are a set of notes, titled Notes “Explanatory Notes – Clean (Clean Neighbourhoods and Environment Neighbour- Act 2005, Chapter 16”. They have hoods and been produced by Defra in order Environment to assist anyone reading the Act. Act 2005) They provide additional

information and detail, helping the reader to better interpret theAct. A copy of the ExplanatoryNotes can be downloaded from:www.opsi.gov.uk/acts/en2005/2005en16.htm.

Fixed Fixed penalty notices may be penalty offered to someone who is notice believed to have committed an

offence such as dropping litter,putting up an illegal advertisement(flyposting), graffiti orcontravening a dog control order.The fixed penalty notice allows thealleged offender the opportunity

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to get rid of (discharge) anycriminal liability for an offence thathe or she may have committedand thus avoid having to go to court.

Flyposting As a general definition, flypostingis generally taken to be the displayof advertising material onbuildings and street furniturewithout the consent of the owner.It can further be defined as anyprinted material and associatedremains illegally fixed to anystructure. It excludes approvedand managed advertisinghoardings and flyposting sites, andother valid, legally placed signsand notices. It includes any size ofmaterial from small stickers up tolarge posters – often advertisingpopular music recordings, concertsand other events. Flypostingdoesn’t include adverts and validlegally placed signs and notices,nor posters that might have beendisplayed from within a building,i.e. in a window.

Formal To assist local authorities to better guidance understand the new powers in the

Act, Defra has produced a seriesof guidance documents. Theseinclude those on litter, dog controlorders and fixed penalty notices.These will be of use to parishcouncils; helping them tounderstand the new powers.These can be downloaded fromwww.defra.gov.uk/environment/localenv/legislation/cnea.

Forms of Forms of order, in relation to the order dog control order offences, set out

the wording that should be used,or closely followed, when makinga dog control order.

Graffiti The term graffiti refers todrawings, patterns, scribbles,messages or tags that are painted,written or carved on walls andother surfaces. In recent times thecraze has been for ‘tagging’, thestylized scrawling of names. Tothose whose property is defacedby graffiti the markings are a formof vandalism that is unwelcome,distressing and difficult and costlyto remove.

Letter of Is the formal letter/warrant card authority that needs to be given to any

person who is to issue fixedpenalty notices on behalf of a parish council, except PoliceCommunity Support Officers. This needs to be given before they can issue any such notices.Before an officer of a parishcouncil can be authorized inwriting he or she needs to havecompleted a Governmentapproved training course.

Litter Litter is something that isimproperly discarded by anyoneon land or water that is open tothe air. It includes sweet wrappers,drinks containers, cigarette ends,gum, apple cores, etc.

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Local Are advisory bodies established access under the Countryside and Rights forums of Way Act 2000, to provide

independent advice on "theimprovement of public access toland in their area for the purposesof open-air recreation and theenjoyment of the area”.

Offer a If someone is suspected of fixed committing an offence they can penalty be offered a fixed penalty notice. notice By offering a fixed penalty

notice the person alleged tohave committed an offencecan decide to accept it or not.Their acceptance is registeredthrough the payment of the fine.Anyone failing to pay the fine canbe assumed to have declined theoffer and prosecution for theoriginal offence through themagistrates’ court should follow.

PACE Stands for the Police and CriminalEvidence Act 1984. PACE isprimarily concerned with thepowers and duties of the police,the rights of suspects and theadmissibility of evidence. Section67(9) of PACE places a duty onpersons other than police officers"who are charged with the duty ofinvestigating offences or chargingoffenders" to have regard to anyrelevant provisions of the Codes of Practice. These Codes need tobe followed at all times wheninterviews are being conductedunder caution. The approvedGovernment training course for

enforcement officers will cover this.

PCSO Police Community Support Officersare uniformed staff whose role isto support the work of policeofficers within the local community.

If authorised by the Chief PoliceOfficer, they can instigateenforcement action against litter,graffiti and flyposting offences on behalf of a parish council.

Primary For the purpose of this Guide, authority primary authorities in England are:

district councils (including unitaryauthorities); county councils for anarea where there are no districtcouncils; London boroughcouncils, the Common Council of the City of London; and theCouncil of the Isles of Scilly.

Quality A Quality Parish Council is one Parish that has demonstrated that it has Council met certain minimum standards

expected from an effective,representative and active parishcouncil. Achievement of Qualitystatus gives a parish councilgreater freedoms.

Responsible A responsible adult, normally a adult parent or a guardian, is someone

that must be present, as a thirdparty, when a young person under17 is formally interviewed under caution.

Secondary In England, parish councils are authorities secondary authorities.

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ContactsThe list of contacts below is by no meansexhaustive, but is included to help point parishcouncils to where they might be able to findfurther information.

Government contactsAnti-social Behaviour Unit (ASBU)The TOGETHER campaign, run by the ASBU,supports local agencies and residents in tacklinganti-social behaviour in their communities. Their website provides information, advice, andresources to help practitioners take effectiveaction across England and Wales.

T: 0870 220 2000E: [email protected]: www.together.gov.uk

CABE SpaceCABE Space works with local authorities andother bodies responsible for public space to helpthem provide a better service. Through theirwork, they encourage local councils to thinkholistically about their green space and what itmeans for residents' health and well being.

T: 020 7960 2400E: [email protected]: www.cabespace.org.uk

Cleaner, Safer, Greener CommunitiesA website dedicated to providing information on subjects such as abandoned vehicles, litterand graffiti. It also addresses neighbourhoodissues and what you can do to improve yourlocal environment.

E: [email protected]: www.cleanersafergreener.gov.uk

Department for Environment, Food and Rural Affairs (Defra)Defra is the Government department responsiblefor policy on the environment, food and rural affairs.

Its remit is the pursuit of sustainabledevelopment – weaving together economic,social and environmental concerns. Defra leads on local environmental quality policy.

T: 08459 33 55 77E: [email protected]: www.defra.gov.uk

English HeritageAims to make sure that the historic environmentof England is properly maintained and cared for.It offers basic technical advice for graffiti removalafter damage by vandals to historic buildings andmonuments and has published a free publication‘Graffiti on historic buildings and monuments:methods of removal and prevention’.

T: 0870 333 1181E: [email protected]: www.english-heritage.org.uk

Home OfficeThe Government department responsible forinternal affairs in England and Wales. It works to build a safe, just and tolerant society, toenhance opportunities for all and to ensure that the protection and security of the public are maintained and enhanced.

T: 020 7273 3476E: [email protected] W: www.homeoffice.gov.uk

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Improvement and Development Agency(IDeA)IDeA was created by and for local government in England and Wales and is independent ofcentral Government and regulatory bodies. Itsaim is to stimulate and support continual andself-sustaining improvement and developmentwithin local government. IDeA Knowledgeprovides information for local authorities to helpthem improve public services and also contains a useful database of all relevant legislation.

T: 0207 296 6600E: [email protected]: www.idea.gov.uk/knowledge

Office of the Deputy Prime Minister (ODPM)The job of the ODPM is to help createsustainable communities, working with otherGovernment departments, local councils,businesses, the voluntary sector, andcommunities themselves.

T: 020 7944 4400E: [email protected]: www.odpm.gov.uk

General contactsAnti-Graffiti AssociationAims to promote best practice in the fightagainst graffiti, vandalism and related crime,through a combined approach of research,education and communication.

E: [email protected]: www.anti-graffiti-association.co.uk

Association of Town Centre Managers(ATCM)The ATCM is dedicated to helping town and city centres realise their natural roles both asprosperous locations for business and investment,and as focal points for vibrant, inclusivecommunities.

T: 0207 222 0120E: [email protected]: www.atcm.org

Blue CrossThe Blue Cross is a registered charity, which aimsto ensure the welfare of companion animals byproviding practical care, highlighting the benefitsof companionship between animals and people,and promoting responsibility towards animals inthe community.

T: 01993 822651E: [email protected]: www.bluecross.org.uk

Community Hygiene Concern (CHC)A charity set up in 1988 to protect people andpets from parasites; drawing together theexpertise of all relevant parties, which will helpachieve this aim. Part of their current workcentres on Toxocara (dog and cat roundworm),which can give rise to serious human illnessincluding blindness.

T: 0207 686 4321W: www.chc.org

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Crime ConcernProvides advice and help to a wide range ofprofessional and voluntary agencies to supporttheir work in reducing crime and the fear ofcrime within local communities.

T: 01793 863 500E: [email protected]: www.crimeconcern.org.uk

Dogs TrustFounded in 1891, Dogs Trust, formerly known as the National Canine Defence League (NCDL),has always campaigned on dog-welfare relatedissues to ensure a safe and happy future for ourfour-legged friends.

T: 020 7837 0006E: [email protected]: www.dogstrust.org.uk

ENCAMSThe charity, which runs the Keep Britain Tidycampaign, and works to improve localenvironments from streets to beaches and local parks.

T: 01942 612621E: [email protected]: www.encams.org

Good Dog CampaignA local council environmental programme fromMasterfoods, supported by the National DogWarden’s Association. The campaign promotesresponsible dog ownership and providesinformation to local councils and dog wardenson developing responsible campaigns withintheir communities. There is also a Good DogCampaign Local Authority Award.

T: 0207 255 1100W: www.ndwa.co.uk/gdc

The Kennel ClubThe primary objective of the Kennel Club is topromote, in every way, the general improvementof dogs.

T: 0870 606 6750W: www.the-kennel-club.org.uk

Local Government Association (LGA)Aims to put local councils at the heart of thedrive to improve public services and to workwith Government to ensure that the policy,legislative and financial context in which theyoperate, supports that objective.

T: 020 7664 3000W: www.lga.gov.ukE: [email protected]

Magistrates’ AssociationThe Magistrates’ Association, with over 29,000members, represents over 80% of servingvolunteer magistrates. ‘Costing the Earth’ is a publication published by the Magistrates’Association, which provides information andguidance on environmental offences.

T: 0207 387 2353E: [email protected] W: www.magistrates-association.org.uk

National Association of Local CouncilsRepresents the 10,000 parish and town councilsin England and Wales, providing advice andguidance to member councils, whilst advancingtheir rights and interests in Parliament and in the media.

T: 020 7637 1865E: [email protected]: www.nalc.gov.uk

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RSPCAThe RSPCA's influence covers the whole range of animal protection. The Society is involved inpractical welfare, law enforcement as well ashigh profile campaigning and education. Itemploys veterinary experts and consultants in the care and treatment of farm livestock,wildlife, domestic pets and animals used in research.

T: 0870 33 35 999 W: www.rspca.org.uk

Society of Local Council ClerksThe Society aims to promote the professionalstanding and knowledge of its members, whichis open to all full and part-time parish clerks.

T: 01823 253646E: [email protected]: www.slcc.co.uk

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Documents

Parish council guidance on the Clean Neighbourhoods and ...holbrookderbyshire.co.uk/gallery/parishcouncilguide.pdf · A summary of new powers for parish councils From April 2006,