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A Report on the Consultation Responses to Putting Our Communities First: A Strategy for tackling Anti- Social Behaviour
Chapter Nine Theme Three: Safe, Secure and Attractive Communities
This chapter provides findings on the consultation responses to proposals relating to:
- Litter, Fly-Tipping and Abandoned Vehicles
- Graffiti
- Noise Nuisance
- Anti-Social behaviour and Housing
9.1 Litter, Fly-Tipping and Abandoned Vehicles
The consultation document sets out options for extending the powers for issuing Fixed Penalty Fines for littering to community wardens and the police. Under the Environmental Protection Act 1990, local authorities and other bodies have a duty to keep particular areas of land clear of litter. The Scottish Executive has commissioned a Scottish Code of Practice with regard to this duty. The consultation document asks if further powers could be given to local authorities and other bodies to assist them in clearing litter. The document requests views on revising the levels of authorised charges for the removal, storage and disposal of abandoned vehicles. The document requests views on the desirability of extending the powers of authorities to remove vehicles causing an obstruction, for example to private access. The consultation document also recognises the problems caused by fly-tipping. The right to demand and examine waste disposal documents currently rests with the Scottish Environmental Protection Agency (SEPA). The document asks for views on the desirability of extending this right to local authorities. Finally, the document proposes raising the limit of a fine for serious fly-tipping in a summary proceeding to 40,000 pounds. The document sought views on the following:
30. Should the power to award Fixed Penalty Fines be given to community wardens and/or the police?
31. Do local authority and other bodies have sufficient powers to clear litter?
32. What level of charges would cover local authorities' present costs for removing, storing and disposing of abandoned vehicles?
33. Is the scope of the present regulations governing the removal of vehicles causing an obstruction sufficient?
34. Would simplified means of penalising fly-tipping, similar to those existing for litter, be appropriate, and if so, what form should these take?
35. Should local authorities have the power to examine waste transfer documents?
36. Should the fine for fly-tipping which may be imposed on summary proceedings be raised to 40,000?
9.1.1 Fixed Penalty Fines for Litter
9.1.1.1 Over nine in ten respondents believed that the power to issue fixed penalties for litter should be extended to the police. Only five responses were opposed to this extension of powers. However, two thirds of those supporting the power of the police to issue fixed penalties were opposed to extending this power to community wardens. Four responses argued that whether or not community wardens were involved in the enforcement of fixed penalties for litter should be left to the discretion of individual local authorities.
9.1.1.2 Those supporting the extension of powers to the police argued that it would provide a visible multi-agency presence in the enforcement of littering offences and send out a signal that littering was a serious offence that would be acted upon. This argument was summed up in the response from Stirling Council: 'The police presence in litter enforcement portrays a very strong image in relation to fixed penalties. This is perhaps exactly what is required as a physical deterrent.'
9.1.1.3 The involvement of the police was supported by the police representative organisations, who believed that fixed penalties would be a welcome change from the current processes which they argued are too complicated for what is a relatively straight forward offence.
9.1.1.4 NFU Scotland asked the Scottish Executive to consider extending the power to park rangers in national parks, and also to traffic wardens. NSCA suggested an increased role for environmental health services.
9.1.1.5 Those opposed to fixed penalties believed that it would be more effective for resources to be spent on education regarding littering. The WS Society argued that the need for corroboration remained. They were also concerned that fixed rate fines had a disproportionate impact on the most deprived sections of our society. In relation to this point, Strathclyde Joint Police Board recognised that custodial sentences as a sanction for fine defaults was a serious concern, and suggested that options of recovering fines by civil means should be explored.
9.1.1.6 Those supporting extending the power to community wardens believed that this would enhance the wider enforcement regime and also develop the image and role of wardens within local communities. Strong emphasis was given to the need for wardens to be properly recruited and to be provided with rigorous training if they were to be given this duty. An alternative suggestion was that individual wardens should be given this power after they had been employed in their position for a set period of time.
9.1.1.7 The majority of responses were opposed to extending the powers to community wardens. It was felt that such an enforcement role would compromise their relationships within local communities, and may in certain situations compromise their own safety. This view was shared by the police representative organisations, who were further concerned about the need for a police presence to back up enforcement of penalties issued by wardens, with subsequent implications for police resources. One problem related to the issuing of fixed penalties for litter was the scope for offenders to provide a false identity, which was not the case with parking offence fixed penalties due to the presence of a registration number. It was felt that this could be particularly problematic for community wardens, who could not use the powers the police have in relation to this issue. One response also felt that giving this duty to wardens placed an undue emphasis on communities where wardens currently operate, whilst litter was a problem facing nearly every community in Scotland.
9.1.1.8 Those opposed to extending this duty to wardens did however suggest that wardens would have an important role in providing information about offences and educating the community. Their potential to act as professional witnesses was also raised.
9.1.1.9 Education was seen as an important component element of an enhanced enforcement strategy. It was recommended that greater roles for communities in tackling littering should be encouraged, including the use of community clean up days and other events. Forward Scotland argued strongly that community self help schemes were an effective approach which should be extended where possible.
9.1.1.10 In relation to enforcing sanctions, East Ayrshire Council believed that offenders should always be given the option of picking up litter as an alternative to a legal sanction, because this was important in the wider educational process required to address litter. The Royal Environmental Health Institute of Scotland argues that reparation, involving participation in local environmental improvement schemes should be considered as a sanction. A further suggestion was made by another response which suggested the establishment of a register of offenders issued with fixed penalties for litter. On their third offence, such offenders should be issued with Community Reparation Orders, with the focus upon environmental improvement.
9.1.1.11 The issue of littering around school premises was raised by a number of respondents, and clarification was sought about sanctions applying to under-16s. In relation to this, Angus Council expressed doubts about raising the fine from 25 to 50. This was because they were already engaged in a procedure of issuing fixed penalties to 12-16 year olds, and then writing to parents explaining the circumstances and stressing that the community would wish to see amends being made. It was reported that this had been successful and that most parents had been willing to pay the 25 pound, but that far fewer would do so if the amount was doubled.
9.1.1.12 The Commission for Racial Equality in Scotland stated that the use of fixed penalties should not unfairly target Gypsy Travellers staying in certain areas because of a lack of official sites.
9.1.1.13 One further suggestion in regard to tackling litter was the imposition of a tax on plastic bags, as implemented in some other European countries.
9.1.2 Local Authorities' Powers to Clear Litter
9.1.2.1 About half of the responses believed that local authorities did have sufficient powers, although there were concerns about the implementation of powers and the availability of resources to use these powers effectively.
9.1.2.2 For those responses suggesting powers were not sufficient, the largest proportion of respondents, including several local authorities, the Society of Chief Officers of Environmental Health in Scotland and the Royal Environmental Health Institute of Scotland, believed that local authorities having the power to clear litter from Crown lands and statutory undertakings would be beneficial. It was suggested that local authorities would clear the litter and then regain the costs of the work from the relevant owners. An alternative approach was suggested by Angus Council Environment and Consumer Protection Department who proposed that notice be served to relevant land owners to remove litter in a specified time and, in the event of non-compliance that local authorities be empowered to carry out litter clearance and bill the owners. It was argued that either of these approaches would simplify the current designated litter area system. Edinburgh Council submitted evidence about how complicated and time consuming the present litter area system was proving to be. It is important to note however that several responses indicated that local authorities often had good working relationships with other land owning agencies and organisations in relation to the clearance of litter.
9.1.2.3 However, health and safety concerns were raised by some local authorities about accessing particular sites, specifically railway land. Network Rail also highlighted these concerns and argued strongly that no one should access railways without appropriate training and qualifications, and that local authority employees would not have had this training and should not therefore be given access to the railways.
9.1.2.4 A number of responses, including the NFU Scotland believed that local authorities' powers should extend to private land, and that private landowners should not be left with sole responsibility for addressing litter problems. The AA Motoring Trust in Scotland had no objections to abandoned cars being removed from private land, subject to current processes entitling the rightful owner to reclaim the vehicle within a specified time. However, Highland Council did not agree that local authorities should adopt responsibility for clearing litter on private land.
9.1.2.5 Two responses argued that extending the opening hours of disposal sites and improving information to residents about these sites and related services would be useful. Several local authorities recognised this as an important issue, but pointed out that they already provided services and sought to publicise them extensively.
9.1.2.6 One response recommended that better provision be made for the training of local authority staff, including a greater understanding of the conditions likely to be required by the Procurator Fiscal to pursue a prosecution.
9.1.2.7 Issues were also raised about litter and roads authorities being under the same Council, and whether responsibilities for litter on the road would rest with the council, or (on trunk roads) within the trunk roads consortia, although these issues were not expanded upon.
9.1.2.8 The Scottish Federation of Housing Associations sought clarification about the extent to which local authority litter clearance activities were related to housing revenue accounts, and stressed that charging should ensure fairness across all tenures. TIGHRA made a similar observation about the removal of vehicles.
9.1.2.9 One response sought clarification about the extent to which CCTV could be used as evidence in litter cases.
9.1.3 Levels of Charges for Removing, Storing and Disposing Of Abandoned Vehicles
9.1.3.1 The greatest difficulty in relation to this issue was tracing the last owner of the vehicle when it had actually been abandoned. This proved almost impossible as the last registered keepers almost invariably reported selling it on to another unidentified individual for cash. It was argued that without this issue being addressed, the level of charges was to a large extent irrelevant. In this regard, several responses suggested that it would be beneficial for local authorities to charge the amount to the last registered keeper of the vehicle, and that this would encourage a change of ownership to be formally documented. However, the AA Motoring Trust was opposed to this measure, which it regarded as inefficient and expensive, and given the low value of cars at the end of their life, was likely to result in charges being imposed on those least likely to be able to pay them. They also believed that DVLA records were not always sufficiently accurate.
9.1.3.2 Local authorities reported varying costs involved in the removing, storing and disposing of abandoned vehicles, with suggested figures for charging for abandoned vehicles ranging from 55 pounds to 250.
9.1.3.3 There was a consensus that the charge should reflect all the costs involved in the removal, storage and disposing process, including taking account of staff time, travel expenses, several checks of the vehicle and fixing notices. It was unanimously agreed that the charge should at least equal these true costs.
9.1.3.4 A majority of responses offering a view on this issue also supported the charge being the true costs plus an additional premium penalty to act as a deterrent. It was also suggested that this penalty charge should be index-linked, and that it should take into account the higher costs to the local authorities in rural areas and the islands.
9.1.3.5 Several local authorities were concerned that the End of Vehicle Life Directive (requiring the adequate disposal of motor vehicles) would increase the number of abandoned cars and increase local authorities' costs significantly. The AA Motoring Trust however believed that whilst there are cost implications in the short term, after 2006, with the duty on manufacturers funded by a levy at the time of vehicle purchase, the scale of the problem would diminish.
9.1.3.6 Two police representative organisations stated they would welcome a fast track process for abandoned vehicles.
9.1.3.7 Other points raised in this area included a call for a better legal definition of 'abandoned vehicle', extending the powers of local authorities to remove clearly abandoned vehicles from owner-occupier's properties and clarifying the instant towing away of vehicles causing an obstruction.
9.1.4 The Scope of Present Regulations Governing Vehicles Causing an Obstruction
9.1.4.1 The majority of responses to this question indicated that the current scope of regulations governing vehicles causing an obstruction were sufficient.
9.1.4.2 Three responses including the NFU Scotland and the Scottish Youth Parliament believed that the regulations should extend to access routes to private land, including farm gates. Dundee City Council suggested extending powers to remove vehicles causing an obstruction on private land without requiring the prior consent of the owner.
9.1.4.3 Several responses suggested that regulations should be extended to pavements, footpaths and areas of landscaping, and not only highways. Two registered social landlords reported that having vehicles removed from their land had proved difficult. One response suggested that regulations should deal more effectively with vehicles causing an obstruction to emergency vehicles.
9.1.5 Simplified Means, including Fixed Penalties, for Fly-Tipping
9.1.5.1 Although simplified means, including fixed penalties were broadly welcomed, as with abandoned vehicles, concerns were raised that the real issue related to the difficulty in proving the commission of an offence by a particular individual. Clarification was sought about the levels of evidence required for issuing fixed penalties and the rights of those accused.
9.1.5.2 It was strongly argued by several responses, that whilst they welcomed fixed penalties for small-scale fly-tipping of domestic waste, more serious offences should remain subject to full criminal proceedings. Care should be taken, they argued, that fixed penalties did not lesson the seriousness of the offence in the perpetrator's eyes. Edinburgh City Council argued that the fine for fly-tipping should be double that for littering to emphasise that it is a more serious offence. Given the higher amount, they suggested 28 days should be given for payment. Several responses believed that the dumping of toxic or harmful waste should remain within the remit of the Scottish Environmental Protection Agency (SEPA).
9.1.5.3 Several responses recommended better interaction between local authorities and SEPA and one respondent proposed that this be enshrined in a formal agreement.
9.1.5.4 Three responses, including the Royal Environmental Health Institute of Scotland and Renfrewshire Council stated that it may prove useful to amend Section 79 of the Environmental Protection Act in its definitions of 'statutory nuisance' and 'deposits' so that aesthetic as well as health concerns could be considered. Establishing a duty of care system in relation to fly-tipping was also proposed by two respondents.
9.1.5.5 Angus Council Environment and Consumer Protection Department suggested that being able to access DVLA records in relation to cars involved in fly-tipping may be useful for local authorities. Although they felt this may not necessarily lead to more successful prosecutions, the fact that perpetrators could be traced and contacted through their vehicle registration number may in itself act as a deterrent. The NFU Scotland recommended the establishment of a freephone helpline for reporting littering and fly-tipping incidents to the police, local authorities and SEPA. The importance of publicising and educating communities about the disposal facilities provided by local authorities was again emphasised by several responses.
9.1.6 Local Authorities Having the Power to Examine Waste Transfer Documents
9.1.6.1 There was almost universal support for giving local authorities powers to examine waste transfer documents. Support for this power came from all the local authorities and COSLA. It was argued that the proposal would enable strengthen the direct linkage of local authority waste collection and disposal services and would strengthen the ability of local authorities to investigate fly-tipping offences. North Lanarkshire Council also believed that the proposal would enable local authorities to be aware of hazardous or toxic substances being transported within their boundaries. The Western Isle Community Well-being Forum stated that SEPA had the appropriate powers, but it was not clear from this if they opposed extending this power to local authorities. Two responses suggested that local authorities should take on this role from SEPA, and be given adequate resources for this.
9.1.6.2 Several responses argued that, whilst this additional power was welcome, it would require additional resources to be used effectively.
9.1.6.3 One local authority requested that the Scottish Executive consider introducing legislation that would require businesses to demonstrate that they had appropriate waste disposal procedures and contracts in place.
9.1.7 Doubling the Fine for Fly-Tipping to 40,000
9.1.7.1 There was near universal support for this proposal, with almost fifty responses in favour and only one response, from an individual, regarding the new fine limit as excessive. It was argued that this would provide more of a deterrent, particularly for repeat offenders, and would signify the seriousness of the offence. One response argued that the fine limit should be reviewed regularly to reflect the rising costs of waste management. Three responses believed that the fine limit should be open-ended and not set in legislation.
9.1.7.2 Although the doubling of the fine was supported, two concerns emerged in regard to this issue. Firstly, several responses argued that increasing the risk of offenders being caught was a more effective deterrent than increasing the level of the fine. The point was made by one respondent that if offenders were not currently deterred by a 20,000 maximum fine, it was doubtful how deterred they would be by a 40,000 fine. The second concern was that increasing the maximum fine would only prove effective if courts use their discretion to impose higher levels of fines, including the local authority costs involved, and that effective sanctions were imposed for non-payment. The belief among several respondents was that current levels of fines tended to be at the lower end of the financial spectrum at present.
9.1.7.3 Renfrewshire Council proposed an alternative two stage fine comprising a principle fine and a daily charge for non compliance, although the Council recognised that this was not appropriate to the present formulation of section 87 where there is no prior notice to be complied with. Perth and Kinross Community Planning Partnership suggested that if it was proved that a vehicle was involved in the fly-tipping, this vehicle should be subject to forfeiture. A further suggestion was for smaller-scale fly-tipping to be subject to a recovery of the costs and a Community Reparation Order.
9.1.7.4 A number of responses made the point that an effective enforcement regime would require successful multi-agency working by local authorities, SEPA, the police and Procurator Fiscals, and that such joint working should be adequately resources and facilitated.
9.2 Graffiti
The consultation document argues that too many Scottish communities are scarred and demeaned by graffiti, that this graffiti undermines community confidence and that it is often of a racist and offence nature which has a devastating affect on those targeted by it. The Scottish Executive proposes to make it an offence to sell spray paint to young people ages under-16. The Scottish Executive further wishes to ensure that local authorities have sufficient powers to address the problem of graffiti. The Local Government in Scotland Act 2003 gave local authorities a power to advance well-being, which the Executive suggests may be used in relation to the removal of graffiti, and enquires about whether additional powers may be required. The document asked:
37. Do you agree with our proposal to ban the sale of spray paint to under-16s?
38. Do local authorities require further powers to deal with graffiti?
9.2.1 Banning the Sale of Spray Paint to Under-16s
9.2.1.1 Over three-quarters of responses to this question supported the proposal to ban the sale of spray paints to under-16s. It was believed that this would have a positive impact on reducing the levels of graffiti and vandalism in local communities. Dundee City Council reported that it had operated a voluntary scheme along these lines and that it appeared to have had desirable results. The Association of Chief Police Officers in Scotland, and several local authorities and others supported the ban and felt it to be easily enforceable if it was limited to offences associated with supply. Renfrewshire and Orkney Islands Councils suggested that the ban should also be based on health and safety grounds relating to solvent based paints.
9.2.1.2 Those opposed to the ban cited three main reasons. Firstly, that graffiti linked to spray paint was not only limited to under-16s, and that it was unreasonable to target this age group (This observation about over-16s was also shared by several responses supporting the ban). Secondly, it was felt that the ban was unreasonable because there were a number of legitimate reasons for under-16s having spray paint, including their use in constructive activities relating to art or hobbies. Two responses also queried what evidence there was to support such a ban, in relation to the numbers of under-16s currently purchasing spray paint from retailers, or the fact that graffiti was largely carried out by under-16s.
9.2.1.3 The Society of Chief Officers of Trading Standards in Scotland supported the ban and stated they would be willing to enforce it, conditional on a full regulatory impact assessment on the resource requirements for enforcing the ban fairly and effectively. They suggested that Quality of Life funding should be made available for this. The Society, along with several local authorities, argued that to be effective, the ban would require full powers being given to trading standards officers to implement child test purchasing tests for spray paints. These powers would extent those in the banning legislation of the Trade Description Act 1968, giving officers the power to enter premises, make test purchases and seize goods and documents. A similar approach was currently being piloted in four local areas and the evaluation should be used to inform how this ban was to be enforced.
9.2.1.4 Four responses, including the Scottish Grocers Federation and the Scottish Retail Consortium believed it would be more appropriate to extend the ban to under-18s. This would ensure continuity with England and Wales, and would also address the issue of shop assistants dealing with a diversity of products subject to different age limits. A further reason offered for an under-18 ban was that those over this age may be less susceptible to peer group pressure than 16 or 17 year olds in terms of buying spray paint to provide it to younger children. One registered social landlord recommended a ban on under-21s.
9.2.1.5 Although there was overall support for the ban, there was also a significant doubt expressed about its overall effectiveness, including from the Association of Scottish Police Superintendents. It was felt that such a ban may only lead to greater amounts of shop lifting, older teenagers supplying paints, or retailers not adhering to the ban. Young people consulted on this question by Youthlink and Children in Scotland were sceptical about its impact, suggesting that such a ban may simply be seen as a new challenge, and that spray paint was often stolen or accessed second hand from non-retail sites. It could also be purchased by mail order or over the internet. Concerns were also expressed about the ability of retailers to identify and challenge those under-16, for example 15 year olds, although the increasing use of identification with verifiable proof of age components, such as the Young Scot cards, offered a potential mechanism for retailers safeguarding themselves.
9.2.1.6 A number of respondents, including the Scottish Youth Parliament and the Princes Trust recommended that such a ban should coincide with the provision of 'official graffiti zones' in local areas, and suggested that evidence from England showed that such permitted zones resulted in less graffiti in surrounding areas.
9.2.1.7 Both opponents of the ban, and several responses who supported it, argued that preventative measures including comprehensive education about the impact and cost of graffiti and diversionary activities and community reparation as a sanction, would prove to be more effective than the ban on the sale of spray paint. However, the problem of reparation through graffiti removal with regard to dangerous substances was highlighted.
9.2.1.8 It was recommended that retailers took precautionary measures to minimise the theft of spray paint from their stores, and that other premises such as schools and building sites should also seek to minimise the potential of spray paint being stolen by those under-16.
Other suggestions included banning the sale of all paints to under-16s and making the possession of spray paints by under-16s an offence.
9.2.2 Local Authorities' Powers to Deal With Graffiti
9.2.2.1 Over three-quarters of respondents to this question believed that local authorities should have additional powers to deal with graffiti. Local authorities reported being frustrated that, whilst they often received complaints about graffiti, they were not always in a position to remove it.
9.2.2.2 The major area where local authorities would benefit from extended powers is graffiti on privately owned property, particularly in relation to racist, sectarian, homophobic or otherwise offensive graffiti. Local authorities argued that it would be beneficial to have powers over private buildings and also telephone boxes, joint telecommunication boxes, fences etc and also that legislation should state that private property owners had a responsibility for removing graffiti. The Scottish Grocers Federation also welcomed action, particularly on vacant property, where graffiti could be detrimental to local businesses, but where it was unclear where responsibility for removing graffiti lay.
9.2.2.3 The small number of responses who argued that powers did not need to be extended suggested that current local authority actions, such as the use of dedicated graffiti 'hit squads' were sufficient, and also that the outcome of the pilot trading standards purchasing test should be evaluated before additional powers were granted.
9.2.2.4 It was argued that the new power of Advancing Well-being could be utilised with regard to graffiti. The most popular suggested mechanism for utilising this power involved giving notice to private property owners that graffiti on their premises must be removed within a limited period of time (at their own expense). If this was not complied with, the local authority would remove it and then charge the costs to the owner. 21 days was suggested as a suitable period of time in which owners could appeal to the Sheriff through a summary application, stating the reasons why they objected to the graffiti being removed.
9.2.2.5 Renfrewshire Council suggested that the definition of 'statutory' nuisance in Section 79 of the Environmental Protection Act 1990 should be extended to things that were detrimental to amenity, which would permit the use of the existing measures of Abatement Notices (Section 80) and giving default powers to local authorities to remove graffiti and secure the costs (Sections 81(3) and 81(4)).
9.2.2.6 COSLA and several local authorities suggested that Councils be given powers to charge private property owners for removing graffiti, but should not be under obligation to do so, and that a series of discretionary charges would be more appropriate.
9.2.2.7 Concerns were raised about the fairness of charging owners of private property where they had not caused the graffiti. It was suggested that express authority could be given to local authorities for not charging 'innocent parties' in order to address audit concerns, and that private property owners should not be penalised unduly. Network Rail argued strongly that the 'polluter pays' principle should apply to railway land. A further alternative suggested by two responses was the provision of grants to property owners to give them responsibility for removing graffiti, although it was acknowledged that such a system could be abused.
9.2.2.8 Particular emphasis was given to the need to remove racist or otherwise offensive graffiti, and it was suggested that local authorities be given a duty to remove such graffiti within a specified period of time. Opinion was divided as to whether the costs for removing this form of graffiti should be met by local authorities or private property owners. Some respondents argued that costs should not be met through the Council Tax or housing revenue accounts. The Commission for Racial Equality in Scotland and Fife Community Safety Partnership both highlighted the danger in unduly penalising ethnic minority retailers and homeowners who may be continually targeted by graffiti.
9.2.2.9 It was widely reported that these new powers would have considerable cost implications for local authorities, and that some of 'Quality of Life' funding should be made available to resource such a power.
9.2.2.10 The removal of graffiti from registered social landlords' properties caused some division, with some local authorities arguing they should remove it and charge the RSLs, whilst two RSLs argued that they should be fully involved and should be able to access funding to remove graffiti, particularly where they operated in mixed tenure areas.
9.2.2.11 The use of reparation orders in sanctions for graffiti was broadly welcomed, although concerns were raised about health and safety issues relating to the dangerous chemicals used in graffiti removal, and also the need for further education and diversionary programmes. It was also suggested that guidance would be helpful in informing local people about how to report graffiti to the relevant authority.
9.3 Noise Nuisance
The consultation document highlights the growing awareness of noise problems in communities and within domestic dwellings. It suggests that local authorities may be given more powers to deal with problems relating to noise. The Scottish Executive proposes giving local authorities powers to implement a night noise nuisance Environmental Health Officer service, in which Environmental Health Officers, and possibly community wardens, are given powers to issue fixed penalty notices and abate domestic noise nuisance immediately between 11pm and 7am. It also suggests that these night-time proposals be extended to 24 hours. Finally, the document reports that getting effective evidence of excessive noise is difficult, and suggests that there may be scope for having specific evidence provisions for noise nuisance. Views were sought on the following questions:
39. Should we require or enable local authorities to implement a night-time noise nuisance service and implement additional powers to enable local authority Environmental Health Officers and/or community wardens to issue Fixed Penalty Notices of 100 pounds to curb domestic noise nuisance? If so, what is the best approach?
40. Should we extend the service from a night-time (11pm to 7am) service to a 24-hour service?
41. Should the standard of proof for a statutory noise nuisance be changed to allow a more flexible approach in this area? If so, what might such an approach involve?
9.3.1 A Night-time Noise Nuisance Service and Fixed Penalty Notices
9.3.1.1 The problem of noise nuisance in local communities was recognised as a serious and widespread issue by the responses. A large number of responses agreed that it would be useful for night-time noise services to be provided for, and for fixed penalties to be issued in relation to noise nuisance. However, a significant number of responses argued that adequate powers already exist, through the Civil Government Act (Scotland 1982), the Environmental Protection Act 1990 and the Crime and Disorder Act 1998, which enable the police to take action against noise. These responses argued that the real issue was enforcing these powers more widely and effectively, linked to required levels of resources. The UK Noise Association argued that there was a need to enable flexibility for local authorities, but that local authorities should be required to provide reliable services to a high standard in relation to noise nuisance.
9.3.1.2 The majority of responses, including those from COSLA and most local authorities, recommended that local authorities be enabled, rather than required, to provide a night-time noise nuisance service. However, many responses pointed to significant health and safety issues in regard to officers issuing fixed penalty notices late at night in what would often be volatile and hostile situations, frequently involving the consumption of alcohol on the part of the alleged perpetrators. It was argued that, because of these concerns, it would almost certainly be the case that Environmental Health Officers (EHOs) would be accompanied by the police, and that these proposals would not therefore free up any police time to deal with other issues. It was reported by several local authorities and national environmental health bodies that there was a current recruitment problem within the profession, and that this made the implementing of these proposals problematic.
9.3.1.3 A number of responses suggested that it would be beneficial to extent the power to issue fixed penalty notices for noise nuisance to the police. Although there was majority support for extending the power to issue fixed penalty notices to environmental health officers, a large majority of responses indicated that it would not be appropriate to extend this power to community wardens. Concerns were raised over compromising their position and role within the wider community, guaranteeing their safety and their ability to enforce compliance, which have already being discussed in this report. In addition however, it was strongly argued that environmental health officers undertook substantial training to gain a range of expertise and that community wardens were simply not qualified or experienced enough to use the technical equipment involved or to determine when statutory noise nuisance was occurring. However, some responses, including two local authorities, argued that local authorities should be able to utilise suitably qualified non-EHOs to work alongside EHOs. It was suggested that community wardens would have a significant role to play in mediation and educating the local community, informing local authorities about noise nuisance and providing corroborative evidence.
9.3.1.4 In relation to issuing fixed penalty notices, the Royal Institute of Environmental Health in Scotland recommended that a consistency of approach between agencies and across local authorities was required. The issue of enforcement in relation to excessive noise caused by structural deficiencies, as opposed to unreasonable behaviour was also raised.
9.3.1.5 Contact a Family Scotland sought assurances from the Scottish Executive that sufficient guidance would be provided in order to ensure that families with children with disabilities, whom may have difficult sleep patterns for example, would not be unduly penalised through fixed penalty systems.
9.3.1.6 One response suggested that the night-time noise nuisance and fixed penalty system should be piloted first before being introduced nationally.
9.3.2 A 24-hour Noise Nuisance Service
9.3.2.1 The majority of responses to this question argued that the extension of the service to 24-hours should be proportionate to need, and that flexibility should be given for local authorities to provide this service only where it was deemed to be required, both in relation to particular geographic locations and for certain days and times of the week, for example weekends.
9.3.2.2 Those responses which welcomed the proposal cited the changes in shift patterns and also the fact that noise nuisance during the day may have a disproportionate impact on the elderly, infirm or people with disabilities. It was also suggested that one benefit of the 24-hour system was that fixed penalty notices arising from night-time incidents could be issued during the day, reducing in some cases the safety concerns involved.
9.3.2.3 It was recognised by the majority of respondents that there were considerable resource implications for local authorities in extending the service to 24-hours. In addition, there were consequences for the provision of storage facilities for equipment, health and safety issues, the obligations on local authorities as employers with regard to working conditions, changes in staff hours and shift patterns etc. Shetland and Aberdeenshire Councils highlighted that such a 24-hour service would have particularly large financial and staffing impacts upon both small and large rural authorities. Several responses suggested that the police were better placed to provide this as they already operated a 24-hour service.
9.3.2.4 The Scottish Federation of Housing Associations suggested that the introduction of this measure should be dependent on an evaluation of night-time noise nuisance services.
9.3.3 A More Flexible Approach and Other Issues Arising
9.3.3.1 The largest proportion of responses indicated that the present system should not be changed and that the current standard of proof was satisfactory. They argued that the police had sufficient powers under Section 54 of the Civic Government (Scotland Act) 1982 and that the level of proof was already less onerous than in other regards and presently allowed for a more flexible approach. Again it was argued, including by the Royal Environmental Health Institute of Scotland and the Society of Chief Officers of Environmental Health in Scotland that the real issue was better enforcement of existing powers. NSCA suggested that a full review of existing powers should be conducted before any new legislation was introduced. It would also be useful to feed the findings of the DEFRA study of neighbourhood noise into proposals. However, there was a general consensus that the enforcement process should be speeded up, requiring more efficient multi-agency working, perhaps through anti-social behaviour units. Two responses reported that pursuing a notice that has been appealed or is breached is problematic and requires further consideration
9.3.3.2 Several responses highlighted that enforcement measures had to take into account the distinction between lifestyle disputes, inadequate insulation and anti-social behaviour. The example given by the Church of Scotland of the deaf elderly person watching television at high volume reflected the views of respondents who felt that mediation, particularly where it brought young and elderly residents together, may be more effective than new legislation. It was also sometimes not always apparent where noise is coming from, so that inappropriate interventions had the potential to cause more problems in communities than it solved.
9.3.3.3 The largest proportion of respondents also argued that the present requirements of evidence in relation to noise nuisance should remain. Any changes should also be subject to a great deal of scrutiny prior to being implemented. It was pointed out by one local authority that the court's insistence on specification of noise cannot be reconciled with the issuing of immediate notices, as there is a need to take measures of 'normal' levels of noise in the vicinity of the complaint (i.e. when the excessive noise is not occurring).
In relation to changes in the standard of proof, it was suggested that it would be helpful if information provided on tape recordings could be used as corroborating evidence along with verification through the sworn evidence from the complainant. Four responses argued that the requirement of corroboration from only one credible witness would be beneficial. Another response believed that the subjective assessment of two suitably qualified officers should be sufficient with regard to issuing fixed penalties. However, the Royal Environmental Health Institute of Scotland stated that any review of reducing the need for corroboration was redundant because in practice there would always be two EHOs present at the investigation of a complaint and the issue of any fixed penalty due to safety concerns. One response believed that a civil standard of proof, based on the balance of probabilities would allow maximum flexibility. Several responses suggested that community wardens could act to corroborate evidence. It was also proposed that there could be flexibility with regard to neighbours as witnesses, including the use of affidavits. Three respondents, including the Noise Association, suggested that it would be beneficial to change the terminology used in the relevant legislation, as 'nuisance' was not helpful in legal definitions relating to excessive noise.
One local authority suggested that Councils be given powers to serve notices lasting up to 28 days, breach of which would result in referral to the Procurator Fiscal,
9.3.3.4 Some respondents recommended that clear guidance on acceptable noise levels be provided to both members of the public and enforcement agencies. However, the Society of Chief Officers of Environmental Health in Scotland argued that enforcement should not be based on a crude noise level test. Simple adoption of 35dB(A) will not, they argued, protect households in a 'quiet' area.
9.3.3.5 A major issue raised by the consultation responses was the need for adequate standards of noise insulation in Scotland's housing stock, and that many complaints were caused by substandard insulation, exacerbated by the increasing use of laminate flooring. It was argued that lifestyles should not be artificially constrained because of poor noise insulation in dwellings. The Noise Association suggested an audit be held of noise insulation standards in Scottish Housing, the Chartered Institute of Housing in Scotland suggested that noise insulation should be considered for inclusion in the proposed Scottish Housing Quality Standard and two other responses called for a national soundproofing programme.
9.3.4 Fireworks
The consultation document states that the Scottish Executive supports the Private Member's Bill at the Westminster Parliament that will bring a more effective regime for the control of fireworks on a UK basis. Although the consultation document did not seek views on this, seven organisations and individuals offered their views on this issue, and all supported the Scottish Executive's stance on fireworks.
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