Guidance on Graffiti Removal
Antisocial Behaviour etc. (Scotland) Act 2004
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Provisions In Detail
Section 58 - Power of a local authority to serve notice about graffiti
Section 60 - Graffiti removal notice: content and service
Section 61 - Non-compliance with graffiti removal notice
Cleaning surfaces defaced by graffiti
Dealing with electrical equipment
Access and safety
Ports and airports
Dealing with repeat graffiti
1. This Guidance is issued by Scottish Ministers under Section 62 of the 2004 Act. The provisions contained at Sections 58-65 of the Antisocial Behaviour etc (Scotland) Act 2004 allow local authorities to serve a graffiti removal notice on the owners of street furniture or property belonging to educational institutions and certain statutory transport undertakers that has been defaced with graffiti which the local authority consider to be offensive or detrimental to the amenity of the local area. The full Act can be accessed at www.hmso.gov.uk
2. The provisions on graffiti removal are intended to encourage the owners of street furniture, educational institutions and statutory transport undertakers to work in partnership with local authorities to ensure that graffiti which is offensive or detrimental to the area is removed from their property. Before issuing a graffiti removal notice local authorities will wish to bear in mind that the owners of such property are the victims of graffiti and the costs of removal can be considerable. Consequently, only where the local authority has given the owner every opportunity to arrange for the graffiti to be removed should it consider, as a last resort, issuing a graffiti removal notice.
3. Given that it will not always be clear to local authorities who owns properties such as utility boxes, we would recommend that, before starting to make use of the new powers, they identify those companies or organisations that may be affected by the provisions and approach them with a view to establishing a point of contact. In doing so, they may also wish to ensure that such companies and organisations are aware of the legislation and the local authority's policy on such matters.
4. In the event that a local authority takes the view that graffiti on street furniture or property to which the provisions relate is offensive or detrimental to the area the local authority, it should alert the company via the contact point and grant them reasonable time to remove it. Only where a company or organisation fails to do so, and the local authority is not prepared to grant them an extension, or any extension given has expired, should consideration be given to issuing a graffiti removal notice.
5. If you have any queries about this guidance please contact the Civic Governance Team on 0131-244-7050 or e-mail Patrick.Down@scotland.gsi.gov.uk or Alex.Gibson@scotland.gsi.gov.uk
6. In addition, as part of the wider programme of support for the implementation of the Antisocial Behaviour etc (Scotland) Act 2004, the Executive is funding a telephone advice line for practitioners. The service will provide telephone advice and support on a wide variety of technical issues such as how to apply for an Antisocial Behaviour Order, the process of granting a closure notice etc. This service will be available from the end of November 2004 and the number will be widely published in advance. If you want to find out more information about the advice line, you can contact the Executive's Antisocial Behaviour Unit by e-mail at firstname.lastname@example.org
7. Briefly, the provisions relating to graffiti removal:
- Empower a local authority to serve a 'graffiti removal notice' on a person responsible for a 'relevant surface' where that surface has been defaced by graffiti and that graffiti is either offensive or detrimental to the amenity of the locality requiring them to remove the graffiti within a specified time of at least 28 days;
- Define 'relevant surface' as street furniture or property owned or managed by an educational institution or certain statutory transport undertakers, where that property is either on public land, visible from public land or visible to members of the public using the services or facilities of a statutory transport undertaker or educational institution;
- Set out the information which must be contained in a graffiti removal notice and defines who may be considered a 'responsible person' in relation to property on which a graffiti removal notice may be served;
- Provide a person on whom a graffiti removal notice has been served with the right to appeal against the notice and sets out the grounds on which such an appeal may be made;
- Provide that where a person fails to comply with a graffiti removal notice, the local authority may remove the graffiti from the property themselves, may enter any land reasonably necessary for that purpose and may recover any costs incurred in doing so from the person on whom the graffiti removal notice was served;
- Require that before doing so they must issue the person from whom they intend to recover costs with a notice setting out the amount and details of the costs they propose to recover;
- Provide a person on whom a notice has been served seeking to recover the costs of removing graffiti with a right to appeal against the notice on the grounds that the expenditure which the local authority proposes to recover is excessive;
- Exempt the local authority and its employees/contractors from any liability in relation to the exercise of their powers to issue graffiti removal notices, providing that they have exercised due care and attention and that they have acted in good faith;
- Provide Scottish Ministers with an order-making power which enables them to modify the definition of a 'relevant surface' in respect of which a graffiti removal notice may be served. Such an order would require to be approved by the Scottish Parliament;
- Require local authorities to have regard to guidance issued by Scottish Ministers in exercising their powers under Sections 58-65 of the Act.
PROVISIONS IN DETAIL
Section 58 - Power of local authority to serve notice about graffiti
8. Subsection (1) provides that where it appears to a local authority that a relevant surface in its area has been defaced with graffiti, and the defacement is detrimental to the amenity of the area or offensive, the authority may serve a graffiti removal notice on any responsible person. Graffiti is defined at subsection (9) and includes "painting, writing, soiling, marking or otherwise defacing by whatever means". It should be noted that this definition is not intended to cover fly-posting which can be dealt with under planning legislation. However, it may be that local authorities and companies which own or manage large amounts of street furniture will wish to come to voluntary agreements regarding the removal of fly posters from their property. It should be borne in mind though, that the Act does not empower a local authority to recover the costs of removing fly-posting from relevant surfaces.
9. The legislation does not provide a definition of what may be considered 'offensive' or 'detrimental to the amenity of the area' and this will be a matter for the local authority to determine. However, examples of offensive graffiti would include graffiti which is racially or sexually offensive, homophobic, or defamatory. Graffiti which is not offensive can still have a negative impact on the amenity of an area. Local authorities should take a proportionate view of whether a particular instance of graffiti is 'detrimental to the amenity of the area' as a whole. In doing so, a local authority should take into consideration the extent to which the amenity of the area would be improved if the particular instance of graffiti were removed (is it the only graffiti in the locality, or is there a major graffiti problem with many surfaces to which the provisions do not apply also defaced?), local complaints and the surface area covered by the graffiti.
10. Local authorities are required under subsection (2) to allow a person a minimum of 28 days to remedy a defacement. In determining the period allowed for removal, local authorities should consult with any businesses or organisations in their area who own or manage large numbers of properties or items of street furniture, e.g. Royal Mail, which fall within the definition of 'relevant surfaces' to ensure that the time allowed for the removal of graffiti is realistic and provides those responsible for the property with sufficient time to remove graffiti. We would also suggest that local authorities take a reasonable approach to requests for an extension to any period normally allowed for removal, given that those affected are the victims of graffiti attacks rather than the perpetrators. However, in considering such requests, it is important that a clear, mutually agreed date is set by which the graffiti will be removed.
11. Where a particular instance of graffiti is especially offensive, it would be preferable that it is removed before the end of the 28 day period allowed by the legislation because of the potentially serious effect it may have on those who are targetted by it. We would therefore encourage local authorities and those businesses which own large numbers of potentially affected properties or street furniture to reach an agreement for such graffiti to be removed as soon as possible. It should be noted however, that the local authority is not empowered to remove graffiti without the prior agreement of the property owner until a graffiti removal notice has been served and the minimum 28 day period allowed for removal has elapsed.
12. Subsection (3)(a) defines a relevant surface as any surface of a public road or any building, structure, apparatus, plant or other such object on such a road. This subsection applies the provisions to street furniture such as utility boxes, telephone kiosks, mail boxes, litter bins and bus shelters. 'Road' is defined at subsection (9). Consequently a building, structure, apparatus, plant or other object on the pavement would be considered as being 'on the road' and would be a relevant surface for the purposes of this section. However, as indicated above, the provisions do not apply to shops, houses or business premises as these are not on the road, but adjacent to the road. Subsection 3(b) states that where subsection (4) or subsection (5) apply, a surface is a relevant surface if it is the surface of land owned or controlled by a relevant body, or any building, structure, apparatus, plant or other object on such land. 'Relevant body' is defined at subsection (9) and covers educational institutions (as defined by Section 98(3) of the Environmental Protection Act 1990) and certain statutory transport undertakers (as defined by Section 98(6) of the Environmental Protection Act 1990).
13. Subsections (4) and (5) apply the provisions if the surface is on public land, or is visible from public land or otherwise visible to members of the public using the services or facilities of either the relevant body in question or any other relevant body. For example, a local authority may serve a graffiti removal notice where there is graffiti on a school or college building which is not visible from the street but is visible to those attending the school or college.
14. Subsection (6) states that, for the purposes of the Act, a road or land is public if the public are entitled to have access to it, with or without payment. Thus for example, if graffiti on the surface of a property owned by a relevant body was visible from premises to which the public may gain access by buying a ticket, the surface would be considered to be visible from public land and the local authority would be empowered to serve a graffiti removal notice in respect of that surface.
15. Subsection (7) provides that a local authority may at any time withdraw a graffiti removal notice. It may wish to do so because it was issued to the wrong person or organisation, or is in some way factually inaccurate (for instance, failing to accurately describe the location of a piece of street furniture), or because they have, on reflection, determined that a particular instance of graffiti is not offensive or detrimental to the amenity of the locality.
16. Subsection (8) states that the withdrawal of a notice under subsection (7) shall not affect the power of the local authority to issue a subsequent graffiti removal notice in respect of the defacement described in the original notice. Thus, if a notice is issued in error to the wrong person, the original notice may be withdrawn and a new notice issued to the correct person (albeit the minimum period which the local authority must allow for graffiti to be removed of 28 days will apply from the date of issue of the new notice).
Section 60 - Graffiti removal notice - content and service
17. Subsection (1) requires that a graffiti removal notice explain the effects of sections 61 (Non-compliance with graffiti removal notice), 63 (Appeal against graffiti removal notice) and 64 (Appeal against notice under section 61 (4)).
18. Although not required to do so we would recommend that local authorities also send a copy of any notice issued to the local contact point (see paragraph 3 above).
19. In serving a notice under subsection (3) local authorities should bear in mind that it is unlikely that they will be able to recover the cost of removing graffiti from any person responsible for the property (as defined by Section 58(9)), if after reasonable enquiries, they have been unable to ascertain the proper address of anyone upon whom a graffiti removal notice may be served. Despite this, and depending on how serious a local authority regard the graffiti, it may still decide that it is in the best interests of their area to remove the graffiti.
Section 61 - Non-Compliance with graffiti removal notice
20. This section applies where a person on whom a graffiti removal notice is served does not comply with it. Subsection (2) provides that where this is the case, the local authority is empowered to remove, remedy or otherwise clear the defacement, and may enter any land in so far as it is reasonably necessary to do so for this purpose.
21. Local authorities will wish to note that under subsection (3) they are only empowered to recover those costs they have reasonably incurred in cleaning the property concerned and should not include any other associated expenditure. These costs should normally roughly correspond to the unit cost of cleaning their own property, unless a good explanation for any additional expense incurred can be demonstrated. Anyone who considers that the amount the local authority is seeking to recover is excessive can appeal to a sheriff under the provisions contained at section 64. A local authority can only seek to recover expenditure where it first serves a notice on the responsible person under subsection (4) which sets out the amount and details of the expenditure which it proposes to recover.
Cleaning Surfaces Defaced by Graffiti
22. It is anticipated that local authorities will only occasionally be required to remove graffiti and that those responsible for the relevant surfaces will work with local authorities to ensure that graffiti which is offensive or detrimental to the amenity of the areas is removed promptly. The following guidance is intended for local authorities in the event that it proves necessary to issue a graffiti removal notice and the recipient fails to comply with it.
23. In cleaning surfaces defaced by graffiti,, local authorities should be careful to ensure that, in removing graffiti they do not damage equipment or surfaces. Telephone exchange boxes, for example, contain sensitive equipment, the value of which can be over 30,000. The increasing rollout of Broadband internet services will see an increasing demand upon the equipment housed in such boxes as service providers seek to maximise the occupancy of such boxes and avoid unnecessary construction in roads and footpaths. Any electrical damage arising from cleaning operations is therefore likely to lead to loss of service to customers for a period of time.
24. The powers of the local authority following non-compliance with a graffiti removal notice are restricted to actions to 'remove, clear or otherwise remedy the defacement'. No other interference with the property is permitted. When removing graffiti, employees of local authorities must use accredited/approved contractors and materials that comply with COSHH - Control of Substances Hazardous to Health Regulations. Further information on the requirements of COSHH can be found on the Health & Safety Executive's website at www.hse.gov.uk/hthdir/noframes/coshh/coshh2.htm. Cleaning materials must meet COSHH Regulations and COSHH specification sheets should be available to support this. Specifically, a local authority:
- Must not use high pressure jet washers or steam cleaners to remove graffiti from utility boxes due to the sensitivity of the electronic equipment which they house.
- Must not use paint or sealant that may restrict or block the flow of ventilating air to such equipment, or seize locks or hinges.
- If removing graffiti by painting over it, paint types with acceptable specifications should be used. (For example, Royal Mail post boxes are all the same colour. The paints used are Red gloss paint Colour Ref. No. 538, BS 381C. and Black gloss paint Colour Ref. No. 00 E53 BS 4800.) If in any doubt, local authorities should check with the property owner that the paint or materials they propose to use are appropriate/acceptable.
- Must ensure that cleaning operatives are made aware of the 240v mains electricity supply to all payphones and many utility boxes.
- Must not use abrasive cleaning materials or fluids on metal surfaces to prevent corrosion or damage the thermal characteristics of utility boxes. Abrasive materials should not be used to clean payphones as this may damage the polycarbonate windows.
- Should ensure that care is taken to ensure that water does not enter the terminal box, light fittings or payphone mechanism.
25. Before proceeding to clean graffiti, especially graffiti which is racist, or otherwise offensive, local authorities should contact the police so that any subsequent or ongoing criminal investigation in relation to it is not compromised by loss of evidence. Police and community wardens may also wish to be aware of recently cleansed areas in order that attention can be given to preventing any recurrence.
Dealing with electrical equipment
26. Street cabinets are essential to the provision of communication services. They house critical electrical and electronic equipment, and serve as access points for key maintenance of the network, together with the management of a Service Provider's customers. The avoidance of the effects of dampness or water penetration is imperative, and common to all Service Providers' street furniture. Service Providers have different specifications and requirements in seeking to minimise such effects. These are set out in terms of network delivery, integrity and management, in addition to obligations under the Health and Safety at Work Act 1974. This is a complex area with a number of factors over-lapping. As such, definitive advice in relation to electrical equipment has not been prepared. However, local authorities should be aware of the following points:
- All cabinets house equipment that will be sensitive to the effects of dampness and water penetration.
- The degree of any service loss (commonly referred to as 'outage') caused by cleaning cabinets will probably be a function of the degree of penetration of water (or any other cleaning fluids), the degree of sensitivity of the housed equipment and the timeframe to effect repairs, which might in turn be dictated by the delivery time of replacement pieces of equipment.
- Electrical supply may be provided from underground cables or via overhead lines.
- To simplify risk assessments, local authorities should assume that all cabinets have electrical connection.
- Cabinets will be of different sizes but, more importantly, may perform different network-delivery functions within a Service Provider's network architecture.
- There may be different network architectures in a particular Local Authority - as a point of reference, the historical Cable TV industry (now substantially NTL and Telewest) comprised over 20 different companies. Generic grouping of cabinet types (and associated electrical requirements) will not necessarily be possible in all cases.
- Ventilation louvres (fixed or variable) provide ventilation to cabinets which becomes critical in hot weather conditions. Equipment is strategically placed close to the louvres in order to maximise cooling effects. As such, louvre points should be treated as 'sensitive' zones.
27. In consideration of the above points it is essential that Service Providers and Local Authorities work closely together and agree the following points:
- Need for accreditation by owners of third parties working on equipment.
- Method statements to be adopted by local authorities.
- Any special measures relating to a cabinet which is the subject of a notice. Stand-by and Call-out procedures in the event of accidents and damages.
- Liabilities in the event of any accidents.
- Liabilities in the event of damage.
28. No third parties should work on equipment without the owners' permission.
Access and safety
29. The safety of staff cleaning property and of the general public is paramount. Local authorities should of course ensure that, in carrying out their functions under these provisions, their health and safety obligations are met.
30. The removal of graffiti from surfaces belonging to statutory undertakers operating railways may require the carrying out of special safety procedures including temporary track closures ("possessions"). The work may fall to be co-ordinated with other activities in order to avoid excessive costs and any unnecessary disruption of rail services. Accordingly, local authorities should consult with statutory undertakers as to what would be a reasonable period of time for compliance prior to service of a graffiti removal notice.
31. In the case of railway land, local authorities must not under any circumstances enter or purport to authorise entry by any person. Only the railway undertaker concerned is in a position to authorise entry by persons in possession of appropriate railway safety certification meeting the requirements of undertakers' Railway Safety Cases, approved under the Railways (Safety Case) Regulations 2000 (as amended). A failure to comply with this instruction is likely to place the local authority concerned in breach of its own duties under the Health and Safety at Work, etc Act 1974. The officer(s) of the authority authorising entry may in such circumstances also render themselves liable to prosecution in a personal capacity.
Ports and Airports
32. Access to ports and airports is likely to be strictly controlled because of the risk to security; in particular, access to the airside at commercial airports is subject to stringent security checks. Many ports have byelaws restricting access to areas in the port and, in the light of the threat from terrorism, new security measures are being introduced in ports to control access to sensitive areas. Additionally, ports and airports generally cover a large area and may have complex and heavily used traffic routes. In order to ensure that they do not stray into areas where they are endangered by heavy plant, contractors should be escorted to the place where they need to work. Contractors carrying out work at ports and airports should therefore contact the harbour authority or airport authority responsible for the site to arrange access before carrying out any work. When working at airports, contractors should take particular care to avoid leaving any loose debris which can be sucked into aircraft engines. Any such items should be place in the bins provided for the purpose.
33. Local authorities will wish to give particular consideration to how they deal with cases where a particular property is repeatedly subjected to graffiti attacks. It should be remembered that the owner of the property is the victim, rather than the perpetrator of such graffiti attacks and merely repeatedly serving graffiti removal notices in relation to the property is unlikely to resolve the problem. As an alternative, local authorities might wish to work with the police to arrange additional enforcement action to target the perpetrators. Consideration could also be given to the use of anti-graffiti paints.