Anti-social Behaviour Act 2003

2003 CHAPTER 38

An Act to make provision in connection with anti-social behaviour.

[20th November 2003]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part 1 E+W Premises where drugs used unlawfully

1 Closure notice E+W

(1) This section applies to premises if a police officer not below the rank of superintendent (the authorising officer) has reasonable grounds for believing—

(a) that at any time during the relevant period the premises have been used in connection with the unlawful use, production or supply of a Class A controlled drug, and

(b) that the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public.

(2) The authorising officer may authorise the issue of a closure notice in respect of premises to which this section applies if he is satisfied—

(a) that the local authority for the area in which the premises are situated has been consulted;

(b) that reasonable steps have been taken to establish the identity of any person who lives on the premises or who has control of or responsibility for or an interest in the premises.

(3) An authorisation under subsection (2) may be given orally or in writing, but if it is given orally the authorising officer must confirm it in writing as soon as it is practicable.

(4) A closure notice must—

(a) give notice that an application will be made under section 2 for the closure of the premises;

(b) state that access to the premises by any person other than a person who habitually resides in the premises or the owner of the premises is prohibited;

(c) specify the date and time when and the place at which the application will be heard;

(d) explain the effects of an order made in pursuance of section 2;

(e) state that failure to comply with the notice amounts to an offence;

(f) give information about relevant advice providers.

(5) The closure notice must be served by a constable.

(6) Service is effected by—

(a) fixing a copy of the notice to at least one prominent place on the premises,

(b) fixing a copy of the notice to each normal means of access to the premises,

(c) fixing a copy of the notice to any outbuildings which appear to the constable to be used with or as part of the premises,

(d) giving a copy of the notice to at least one person who appears to the constable to have control of or responsibility for the premises, and

(e) giving a copy of the notice to the persons identified in pursuance of subsection (2)(b) and to any other person appearing to the constable to be a person of a description mentioned in that subsection.

(7) The closure notice must also be served on any person who occupies any other part of the building or other structure in which the premises are situated if the constable reasonably believes at the time of serving the notice under subsection (6) that the person’s access to the other part of the building or structure will be impeded if a closure order is made under section 2.

(8) It is immaterial whether any person has been convicted of an offence relating to the use, production or supply of a controlled drug.

(9) The Secretary of State may by regulations specify premises or descriptions of premises to which this section does not apply.

(10) The relevant period is the period of three months ending with the day on which the authorising officer considers whether to authorise the issue of a closure notice in respect of the premises.

(11) Information about relevant advice providers is information about the names of and means of contacting persons and organisations in the area that provide advice about housing and legal matters.

Commencement Information

I1 S. 1 in force at 20.1.2004 by S.I. 2003/3300, art. 2(a)

2 Closure order E+W

(1) If a closure notice has been issued under section 1 a constable must apply under this section to a magistrates' court for the making of a closure order.

(2) The application must be heard by the magistrates' court not later than 48 hours after the notice was served in pursuance of section 1(6)(a).

(3) The magistrates' court may make a closure order if and only if it is satisfied that each of the following paragraphs applies—

(a) the premises in respect of which the closure notice was issued have been used in connection with the unlawful use, production or supply of a Class A controlled drug;

(b) the use of the premises is associated with the occurrence of disorder or serious nuisance to members of the public;

(c) the making of the order is necessary to prevent the occurrence of such disorder or serious nuisance for the period specified in the order.

(4) A closure order is an order that the premises in respect of which the order is made are closed to all persons for such period (not exceeding three months) as the court decides.

(5) But the order may include such provision as the court thinks appropriate relating to access to any part of the building or structure of which the premises form part.

(6) The magistrates' court may adjourn the hearing on the application for a period of not more than 14 days to enable—

(a) the occupier of the premises,

(b) the person who has control of or responsibility for the premises, or

(c) any other person with an interest in the premises,

to show why a closure order should not be made.

(7) If the magistrates' court adjourns the hearing under subsection (6) it may order that the closure notice continues in effect until the end of the period of the adjournment.

(8) A closure order may be made in respect of all or any part of the premises in respect of which the closure notice was issued.

(9) It is immaterial whether any person has been convicted of an offence relating to the use, production or supply of a controlled drug.

Commencement Information

I2 S. 2 in force at 20.1.2004 by S.I. 2003/3300, art. 2(a)

3 Closure order: enforcement E+W

(1) This section applies if a magistrates' court makes an order under section 2.

(2) A constable or an authorised person may—

(a) enter the premises in respect of which the order is made;

(b) do anything reasonably necessary to secure the premises against entry by any person.

(3) A person acting under subsection (2) may use reasonable force.

(4) But a constable or authorised person seeking to enter the premises for the purposes of subsection (2) must, if required to do so by or on behalf of the owner, occupier or other person in charge of the premises, produce evidence of his identity and authority before entering the premises.

(5) A constable or authorised person may also enter the premises at any time while the order has effect for the purpose of carrying out essential maintenance of or repairs to the premises.

(6) In this section and in section 4 an authorised person is a person authorised by the chief officer of police for the area in which the premises are situated.

Commencement Information

I3 S. 3 in force at 20.1.2004 by S.I. 2003/3300, art. 2(a)

4 Closure of premises: offences E+W

(1) A person commits an offence if he remains on or enters premises in contravention of a closure notice.

(2) A person commits an offence if—

(a) he obstructs a constable or an authorised person acting under section 1(6) or 3(2),

(b) he remains on premises in respect of which a closure order has been made, or

(c) he enters the premises.

(3) A person guilty of an offence under this section is liable on summary conviction—

(a) to imprisonment for a period not exceeding six months, or

(b) to a fine not exceeding level 5 on the standard scale,

or to both such imprisonment and fine.

(4) But a person does not commit an offence under subsection (1) or subsection (2)(b) or (c) if he has a reasonable excuse for entering or being on the premises (as the case may be).

(5) A constable in uniform may arrest a person he reasonably suspects of committing or having committed an offence under this section.

Commencement Information

I4 S. 4 in force at 20.1.2004 by S.I. 2003/3300, art. 2(a)

5 Extension and discharge of closure order E+W

(1) At any time before the end of the period for which a closure order is made or extended a constable may make a complaint to an appropriate justice of the peace for an extension or further extension of the period for which it has effect.

(2) But a complaint must not be made unless it is authorised by a police officer not below the rank of superintendent—

(a) who has reasonable grounds for believing that it is necessary to extend the period for which the closure order has effect for the purpose of preventing the occurrence of disorder or serious nuisance to members of the public, and

(b) who is satisfied that the local authority has been consulted about the intention to make the complaint.

(3) If a complaint is made to a justice of the peace under subsection (1) the justice may issue a summons directed to—

(a) the persons on whom the closure notice relating to the closed premises was served under subsection (6)(d) or (e) or (7) of section 1;

(b) any other person who appears to the justice to have an interest in the closed premises but on whom the closure notice was not served,

requiring such person to appear before the magistrates' court to answer to the complaint.

(4) If the court is satisfied that the order is necessary to prevent the occurrence of disorder or serious nuisance for a further period it may extend the period for which the order has effect by a period not exceeding three months.

(5) But a closure order must not have effect for more than six months.

(6) Any of the following persons may make a complaint to an appropriate justice of the peace for an order that a closure order is discharged—

(a) a constable;

(b) the local authority;

(c) a person on whom the closure notice relating to the closed premises was served under subsection (6)(d) or (e) or (7) of section 1;

(d) a person who has an interest in the closed premises but on whom the closure notice was not served.

(7) If a complaint is made under subsection (6) by a person other than a constable the justice may issue a summons directed to such constable as he thinks appropriate requiring the constable to appear before the magistrates' court to answer to the complaint.

(8) The court must not make an order discharging a closure order unless it is satisfied that the closure order is no longer necessary to prevent the occurrence of disorder or serious nuisance to members of the public.

(9) If a summons is issued in accordance with subsection (3) or (7), a notice stating the date, time and place at which the complaint will be heard must be served on—

(a) the persons to whom the summons is directed if it is issued under subsection (3);

(b) the persons mentioned in subsection (6)(c) and (d) (except the complainant) if the summons is issued under subsection (7);

(c) such constable as the justice thinks appropriate (unless he is the complainant);

(d) the local authority (unless they are the complainant).

(10) An appropriate justice of the peace is a justice of the peace acting for the petty sessions area in which the premises in respect of which a closure order is made are situated.

Commencement Information

I5 S. 5 in force at 20.1.2004 by S.I. 2003/3300, art. 2(a)

6 Appeals E+W

(1) This section applies to—

(a) an order under section 2 or 5;

(b) a decision by a court not to make an order under either of those sections.

(2) An appeal against an order or decision to which this section applies must be brought to the Crown Court before the end of the period of 21 days beginning with the day on which the order or decision is made.

(3) An appeal against an order under section 2 or 5(4) may be brought by—

(a) a person on whom the closure notice relating to the closed premises was served under section 1(6)(d) or (e);

(b) a person who has an interest in the closed premises but on whom the closure notice was not served.

(4) An appeal against the decision of a court not to make such an order may be brought by—

(a) a constable;

(b) the local authority.

(5) On an appeal under this section the Crown Court may make such order as it thinks appropriate.

Commencement Information

I6 S. 6 in force at 20.1.2004 by S.I. 2003/3300, art. 2(a)

7 Access to other premises E+W

(1) This section applies to any person who occupies or owns any part of a building or structure—

(a) in which closed premises are situated, and

(b) in respect of which the closure order does not have effect.

(2) A person to whom this section applies may at any time while a closure order has effect apply to—

(a) the magistrates' court in respect of an order made under section 2 or 5;

(b) the Crown Court in respect of an order made under section 6.

(3) If an application is made under this section notice of the date, time and place of the hearing to consider the application must be given to every person mentioned in section 5(6).

(4) On an application under this section the court may make such order as it thinks appropriate in relation to access to any part of a building or structure in which closed premises are situated.

(5) It is immaterial whether any provision has been made as mentioned in section 2(5).

Commencement Information

I7 S. 7 in force at 20.1.2004 by S.I. 2003/3300, art. 2(a)

8 Reimbursement of costs E+W

(1) A police authority or a local authority which incurs expenditure for the purpose of clearing, securing or maintaining the premises in respect of which a closure order has effect may apply to the court which made the order for an order under this section.

(2) On an application under this section the court may make such order as it thinks appropriate in the circumstances for the reimbursement (in full or in part) by the owner of the premises of the expenditure mentioned in subsection (1).

(3) But an application for an order under this section must not be entertained unless it is made not later than the end of the period of three months starting with the day the closure order ceases to have effect.

(4) An application under this section must be served on—

(a) the police authority for the area in which the premises are situated if the application is made by the local authority;

(b) the local authority if the application is made by a police authority;

(c) the owner of the premises.

Commencement Information

I8 S. 8 in force at 20.1.2004 by S.I. 2003/3300, art. 2(a)

9 Exemption from liability for certain damages E+W

(1) A constable is not liable for relevant damages in respect of anything done or omitted to be done by him in the performance or purported performance of his functions under this Part.

(2) A chief officer of police is not liable for relevant damages in respect of anything done or omitted to be done by a constable under his direction or control in the performance or purported performance of the constable’s functions under this Part.

(3) Subsections (1) and (2) do not apply—

(a) if the act or omission is shown to have been in bad faith;

(b) so as to prevent an award of damages made in respect of an act or omission on the ground that the act or omission was unlawful by virtue of section 6(1) of the Human Rights Act 1998 (c. 42).

(4) This section does not affect any other exemption from liability for damages (whether at common law or otherwise).

(5) Relevant damages are damages in proceedings for judicial review or for the tort of negligence or misfeasance in public duty.

Commencement Information

I9 S. 9 in force at 20.1.2004 by S.I. 2003/3300, art. 2(a)

10 Compensation E+W

(1) This section applies to any person who incurs financial loss in consequence of—

(a) the issue of a closure notice, or

(b) a closure order having effect.

(2) A person to whom this section applies may apply to—

(a) the magistrates' court which considered the application for a closure order;

(b) the Crown Court if the closure order was made or extended by an order made by that Court on an appeal under section 6.

(3) An application under this section must not be entertained unless it is made not later than the end of the period of three months starting with whichever is the later of—

(a) the day the court decides not to make a closure order;

(b) the day the Crown Court dismisses an appeal against a decision not to make a closure order;

(c) the day a closure order ceases to have effect.

(4) On an application under this section the court may order the payment of compensation out of central funds if it is satisfied—

(a) that the person had no connection with the use of the premises as mentioned in section 1(1),

(b) if the person is the owner or occupier of the premises, that he took reasonable steps to prevent the use,

(c) that the person has incurred financial loss as mentioned in subsection (1), and

(d) having regard to all the circumstances it is appropriate to order payment of compensation in respect of that loss.

(5) Central funds has the same meaning as in enactments providing for the payment of costs.

Commencement Information

I10 S. 10 in force at 20.1.2004 by S.I. 2003/3300, art. 2(a)

11 Interpretation E+W

(1) References to a controlled drug and (however expressed) to the production or supply of a controlled drug must be construed in accordance with the Misuse of Drugs Act 1971 (c. 38).

(2) A Class A controlled drug is a controlled drug which is a Class A drug within the meaning of section 2 of that Act.

(3) Premises includes—

(a) any land or other place (whether enclosed or not);

(b) any outbuildings which are or are used as part of the premises.

(4) A closure notice is a notice issued under section 1.

(5) A closure order is—

(a) an order made under section 2;

(b) an order extended under section 5;

(c) an order made or extended under section 6 which has the like effect as an order made or extended under section 2 or 5 (as the case may be).

(6) Each of the following is a local authority in relation to England—

(a) a district council;

(b) a London borough council;

(c) a county council for an area for which there is no district council;

(d) the Common Council of the City of London in its capacity as a local authority;

(e) the Council of the Isles of Scilly.

(7) Each of the following is a local authority in relation to Wales—

(a) a county council;

(b) a county borough council.

(8) References to a local authority are to the local authority for the area in which premises—

(a) to which a closure notice applies are situated;

(b) in respect of which a closure order has effect are situated.

(9) Closed premises are premises in respect of which a closure order has effect.

(10) A person is the owner of premises if either of the following paragraphs applies to him—

(a) he is a person (other than a mortgagee not in possession) who is for the time being entitled to dispose of the fee simple in the premises, whether in possession or in reversion;

(b) he is a person who holds or is entitled to the rents and profits of the premises under a lease which (when granted) was for a term of not less than three years.

(11) This section applies for the purposes of this Part.

Commencement Information

I11 S. 11 in force at 20.1.2004 by S.I. 2003/3300, art. 2(a)

Valid from 30/06/2004

Part 2 E+W Housing

12 Anti-social behaviour: landlords' policies and procedures E+W

(1) In Part 8 of the Housing Act 1996 (c. 52) before section 219 (power of Secretary of State to give directions as to certain charges by social landlords) there is inserted the following section—

“218A Anti-social behaviour: landlords' policies and procedures

(1) This section applies to the following landlords—

(a) a local housing authority;

(b) a housing action trust;

(c) a registered social landlord.

(2) The landlord must prepare—

(a) a policy in relation to anti-social behaviour;

(b) procedures for dealing with occurrences of anti-social behaviour.

(3) The landlord must not later than 6 months after the commencement of section 12 of the Anti-social Behaviour Act 2003 publish a statement of the policy and procedures prepared under subsection (2).

(4) The landlord must from time to time keep the policy and procedures under review and, when it thinks appropriate, publish a revised statement.

(5) A copy of a statement published under subsection (3) or (4)—

(a) must be available for inspection at all reasonable hours at the landlord’s principal office;

(b) must be provided on payment of a reasonable fee to any person who requests it.

(6) The landlord must also—

(a) prepare a summary of its current policy and procedures;

(b) provide without charge a copy of the summary to any person who requests it.

(7) In preparing and reviewing the policy and procedures the landlord must have regard to guidance issued—

(a) by the Secretary of State in the case of a local housing authority or a housing action trust;

(b) by the Relevant Authority under section 36 in the case of a registered social landlord.

(8) Anti-social behaviour is any conduct to which section 153A or 153B applies.

(9) Relevant Authority has the same meaning as in Part 1.”

(2) In section 36(2) of that Act (functions of the Housing Corporation relating to guidance and corresponding functions relating to Wales) after paragraph (h) there is inserted the following paragraph—

“(i) the policy and procedures a landlord is required under section 218A to prepare and from time to time revise in connection with anti-social behaviour.”

13 Injunctions against anti-social behaviour on application of certain social landlords E+W

(1) The Housing Act 1996 (c. 52) is amended as follows.

(2) Sections 152 (power to grant injunctions against anti-social behaviour) and 153 (power of arrest for breach of certain injunctions against anti-social behaviour) are omitted.

(3) Before section 154 (power of arrest in ex parte applications) there are inserted the following sections—

“153A Anti-social behaviour injunction

(1) This section applies to conduct—

(a) which is capable of causing nuisance or annoyance to any person, and

(b) which directly or indirectly relates to or affects the housing management functions of a relevant landlord.

(2) The court on the application of a relevant landlord may grant an injunction (an anti-social behaviour injunction) if each of the following two conditions is satisfied.

(3) The first condition is that the person against whom the injunction is sought is engaging, has engaged or threatens to engage in conduct to which this section applies.

(4) The second condition is that the conduct is capable of causing nuisance or annoyance to any of the following—

(a) a person with a right (of whatever description) to reside in or occupy housing accommodation owned or managed by the relevant landlord;

(b) a person with a right (of whatever description) to reside in or occupy other housing accommodation in the neighbourhood of housing accommodation mentioned in paragraph (a);

(c) a person engaged in lawful activity in or in the neighbourhood of housing accommodation mentioned in paragraph (a);

(d) a person employed (whether or not by the relevant landlord) in connection with the exercise of the relevant landlord’s housing management functions.

(5) It is immaterial where conduct to which this section applies occurs.

(6) An anti-social behaviour injunction prohibits the person in respect of whom it is granted from engaging in conduct to which this section applies.

153B Injunction against unlawful use of premises

(1) This section applies to conduct which consists of or involves using or threatening to use housing accommodation owned or managed by a relevant landlord for an unlawful purpose.

(2) The court on the application of the relevant landlord may grant an injunction prohibiting the person in respect of whom the injunction is granted from engaging in conduct to which this section applies.

153C Injunctions: exclusion order and power of arrest

(1) This section applies if the court grants an injunction under subsection (2) of section 153A or 153B and it thinks that either of the following paragraphs applies—

(a) the conduct consists of or includes the use or threatened use of violence;

(b) there is a significant risk of harm to a person mentioned in section 153A(4).

(2) The court may include in the injunction a provision prohibiting the person in respect of whom it is granted from entering or being in—

(a) any premises specified in the injunction;

(b) any area specified in the injunction.

(3) The court may attach a power of arrest to any provision of the injunction.

153D Injunction against breach of tenancy agreement

(1) This section applies if a relevant landlord applies for an injunction against a tenant in respect of the breach or anticipated breach of a tenancy agreement on the grounds that the tenant—

(a) is engaging or threatening to engage in conduct that is capable of causing nuisance or annoyance to any person, or

(b) is allowing, inciting or encouraging any other person to engage or threaten to engage in such conduct.

(2) The court may proceed under subsection (3) or (4) if it is satisfied—

(a) that the conduct includes the use or threatened use of violence, or

(b) that there is a significant risk of harm to any person.

(3) The court may include in the injunction a provision prohibiting the person in respect of whom it is granted from entering or being in—

(a) any premises specified in the injunction;

(b) any area specified in the injunction.

(4) The court may attach a power of arrest to any provision of the injunction.

(5) Tenancy agreement includes any agreement for the occupation of residential accommodation owned or managed by a relevant landlord.

153E Injunctions: supplementary

(1) This section applies for the purposes of sections 153A to 153D.

(2) An injunction may—

(a) be made for a specified period or until varied or discharged;

(b) have the effect of excluding a person from his normal place of residence.

(3) An injunction may be varied or discharged by the court on an application by—

(a) the person in respect of whom it is made;

(b) the relevant landlord.

(4) If the court thinks it just and convenient it may grant or vary an injunction without the respondent having been given such notice as is otherwise required by rules of court.

(5) If the court acts under subsection (4) it must give the person against whom the injunction is made an opportunity to make representations in relation to the injunction as soon as it is practicable for him to do so.

(6) The court is the High Court or a county court.

(7) Each of the following is a relevant landlord—

(a) a housing action trust;

(b) a local authority (within the meaning of the Housing Act 1985);

(c) a registered social landlord.

(8) A charitable housing trust which is not a registered social landlord is also a relevant landlord for the purposes of section 153D.

(9) Housing accommodation includes—

(a) flats, lodging-houses and hostels;

(b) any yard, garden, outhouses and appurtenances belonging to the accommodation or usually enjoyed with it;

(c) in relation to a neighbourhood, the whole of the housing accommodation owned or managed by a relevant landlord in the neighbourhood and any common areas used in connection with the accommodation.

(10) A landlord owns housing accommodation if either of the following paragraphs applies to him—

(a) he is a person (other than a mortgagee not in possession) who is for the time being entitled to dispose of the fee simple in the premises, whether in possession or in reversion;

(b) he is a person who holds or is entitled to the rents and profits of the premises under a lease which (when granted) was for a term of not less than three years.

(11) The housing management functions of a relevant landlord include—

(a) functions conferred by or under any enactment;

(b) the powers and duties of the landlord as the holder of an estate or interest in housing accommodation.

(12) Harm includes serious ill-treatment or abuse (whether physical or not).”

(4) In section 154—

(a) in subsection (1) for “section 152(6) or section 153” there is substituted “ section 153C(3) or 153D(4) ”;

(b) in subsection (1)(b) for “152(1)(a) or section 153(5)(a)” there is substituted “ section 153A(4) ”.

(5) In section 155—

(a) in subsection (1) for “section 152(6) or section 153” there is substituted “ section 153C(3) or 153D(4) ”;

(b) in subsection (3) for “section 152(6) or section 153” there is substituted “ section 153C(3) or 153D(4) ”.

(6) In section 157—

(a) in subsection (1) for “section 152(6) or section 153” there is substituted “ section 153C(3) or 153D(4) ”;

(b) in subsection (3) for “section 152(6) or section 153” there is substituted “ section 153C(3) or 153D(4) ”.

(7) In section 158—

(a) in subsection (1) the entries relating to “child”, “harm”, “health” and “ill-treatment” are omitted;

(b) subsection (2) is omitted.

14 Security of tenure: anti-social behaviour E+W

(1) In the Housing Act 1985 (c. 68) section 82 (which makes provision in relation to security of tenure) is amended as follows—

(a) in subsection (1) for the words from “of the court” to the end of the subsection there is substituted “ mentioned in subsection (1A) ”;

(b) after subsection (1) there is inserted the following subsection—

“(1A) These are the orders—

(a) an order of the court for the possession of the dwelling-house;

(b) an order under subsection (3);

(c) a demotion order under section 82A.”

(2) After section 82 of that Act there is inserted the following section—

“82A Demotion because of anti-social behaviour

(1) This section applies to a secure tenancy if the landlord is—

(a) a local housing authority;

(b) a housing action trust;

(c) a registered social landlord.

(2) The landlord may apply to a county court for a demotion order.

(3) A demotion order has the following effect—

(a) the secure tenancy is terminated with effect from the date specified in the order;

(b) if the tenant remains in occupation of the dwelling-house after that date a demoted tenancy is created with effect from that date;

(c) it is a term of the demoted tenancy that any arrears of rent payable at the termination of the secure tenancy become payable under the demoted tenancy;

(d) it is also a term of the demoted tenancy that any rent paid in advance or overpaid at the termination of the secure tenancy is credited to the tenant’s liability to pay rent under the demoted tenancy.

(4) The court must not make a demotion order unless it is satisfied—

(a) that the tenant or a person residing in or visiting the dwelling-house has engaged or has threatened to engage in conduct to which section 153A or 153B of the Housing Act 1996 (anti-social behaviour or use of premises for unlawful purposes) applies, and

(b) that it is reasonable to make the order.

(5) Each of the following has effect in respect of a demoted tenancy at the time it is created by virtue of an order under this section as it has effect in relation to the secure tenancy at the time it is terminated by virtue of the order—

(a) the parties to the tenancy;

(b) the period of the tenancy;

(c) the amount of the rent;

(d) the dates on which the rent is payable.

(6) Subsection (5)(b) does not apply if the secure tenancy was for a fixed term and in such a case the demoted tenancy is a weekly periodic tenancy.

(7) If the landlord of the demoted tenancy serves on the tenant a statement of any other express terms of the secure tenancy which are to apply to the demoted tenancy such terms are also terms of the demoted tenancy.

(8) For the purposes of this section a demoted tenancy is—

(a) a tenancy to which section 143A of the Housing Act 1996 applies if the landlord of the secure tenancy is a local housing authority or a housing action trust;

(b) a tenancy to which section 20B of the Housing Act 1988 applies if the landlord of the secure tenancy is a registered social landlord.”

(3) Section 83 of that Act is amended as follows—

(a) in subsection (1) for the words from “the possession” to the second “tenancy” substitute “ an order mentioned in section 82(1A) ”;

(b) in subsection (2)(b) for the words from “an order” to “tenancy” substitute “ the order ”;

(c) after subsection (4) insert—

“(4A) If the proceedings are for a demotion order under section 82A the notice—

(a) must specify the date after which the proceedings may be begun;

(b) ceases to be in force twelve months after the date so specified.”;

(d) in subsection (5) for “or (4)” substitute “ (4) or (4A) ”.

(4) In the Housing Act 1988 (c. 50) after section 6 (which makes provision about fixing the terms of a statutory periodic tenancy) there is inserted the following section—

“6A Demotion because of anti-social behaviour

(1) This section applies to an assured tenancy if the landlord is a registered social landlord.

(2) The landlord may apply to a county court for a demotion order.

(3) A demotion order has the following effect—

(a) the assured tenancy is terminated with effect from the date specified in the order;

(b) if the tenant remains in occupation of the dwelling-house after that date a demoted tenancy is created with effect from that date;

(c) it is a term of the demoted tenancy that any arrears of rent payable at the termination of the assured tenancy become payable under the demoted tenancy;

(d) it is also a term of the demoted tenancy that any rent paid in advance or overpaid at the termination of the assured tenancy is credited to the tenant’s liability to pay rent under the demoted tenancy.

(4) The court must not make a demotion order unless it is satisfied—

(a) that the tenant or a person residing in or visiting the dwelling-house has engaged or has threatened to engage in conduct to which section 153A or 153B of the Housing Act 1996 (anti-social behaviour or use of premises for unlawful purposes) applies, and

(b) that it is reasonable to make the order.

(5) The court must not entertain proceedings for a demotion order unless—

(a) the landlord has served on the tenant a notice under subsection (6), or

(b) the court thinks it is just and equitable to dispense with the requirement of the notice.

(6) The notice must—

(a) give particulars of the conduct in respect of which the order is sought;

(b) state that the proceedings will not begin before the date specified in the notice;

(c) state that the proceedings will not begin after the end of the period of twelve months beginning with the date of service of the notice.

(7) The date specified for the purposes of subsection (6)(b) must not be before the end of the period of two weeks beginning with the date of service of the notice.

(8) Each of the following has effect in respect of a demoted tenancy at the time it is created by virtue of an order under this section as it has effect in relation to the assured tenancy at the time it is terminated by virtue of the order—

(a) the parties to the tenancy;

(b) the period of the tenancy;

(c) the amount of the rent;

(d) the dates on which the rent is payable.

(9) Subsection (8)(b) does not apply if the assured tenancy was for a fixed term and in such a case the demoted tenancy is a weekly periodic tenancy.

(10) If the landlord of the demoted tenancy serves on the tenant a statement of any other express terms of the assured tenancy which are to apply to the demoted tenancy such terms are also terms of the demoted tenancy.

(11) For the purposes of this section a demoted tenancy is a tenancy to which section 20B of the Housing Act 1988 applies.”

(5) Schedule 1 amends the Housing Act 1996 (c. 52) and the Housing Act 1985 (c. 68).

15 Demoted assured shorthold tenancies E+W

(1) In the Housing Act 1988 (c. 50) after section 20A (duty of landlord to provide statement of terms for certain tenancies) there is inserted the following section—

“20B Demoted assured shorthold tenancies

(1) An assured tenancy is an assured shorthold tenancy to which this section applies (a demoted assured shorthold tenancy) if—

(a) the tenancy is created by virtue of an order of the court under section 82A of the Housing Act 1985 or section 6A of this Act (a demotion order), and

(b) the landlord is a registered social landlord.

(2) At the end of the period of one year starting with the day when the demotion order takes effect a demoted assured shorthold tenancy ceases to be an assured shorthold tenancy unless subsection (3) applies.

(3) This subsection applies if before the end of the period mentioned in subsection (2) the landlord gives notice of proceedings for possession of the dwelling house.

(4) If subsection (3) applies the tenancy continues to be a demoted assured shorthold tenancy until the end of the period mentioned in subsection (2) or (if later) until one of the following occurs—

(a) the notice of proceedings for possession is withdrawn;

(b) the proceedings are determined in favour of the tenant;

(c) the period of six months beginning with the date on which the notice is given ends and no proceedings for possession have been brought.

(5) Registered social landlord has the same meaning as in Part 1 of the Housing Act 1996.”

(2) In section 21 of that Act (recovery of possession on expiry or termination of assured shorthold tenancy) after subsection (5) there is inserted the following subsection—

“(5A) Subsection (5) above does not apply to an assured shorthold tenancy to which section 20B (demoted assured shorthold tenancies) applies.”

(3) In Schedule 2A to that Act (assured tenancies which are not shorthold tenancies) after paragraph 5 (former secure tenancies) there is inserted the following paragraph—

“Former demoted tenancies

5A An assured tenancy which ceases to be an assured shorthold tenancy by virtue of section 20B(2) or (4).”

16 Proceedings for possession: anti-social behaviour E+W

(1) In the Housing Act 1985 (c. 68) after section 85 (which extends the court’s discretion in certain proceedings for possession) there is inserted the following section—

“85A Proceedings for possession: anti-social behaviour

(1) This section applies if the court is considering under section 84(2)(a) whether it is reasonable to make an order for possession on ground 2 set out in Part 1 of Schedule 2 (conduct of tenant or other person).

(2) The court must consider, in particular—

(a) the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;

(b) any continuing effect the nuisance or annoyance is likely to have on such persons;

(c) the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.”

(2) In the Housing Act 1988 (c. 50) after section 9 (which extends the court’s discretion in certain proceedings for possession) there is inserted the following section—

“9A Proceedings for possession: anti-social behaviour

(1) This section applies if the court is considering under section 7(4) whether it is reasonable to make an order for possession on ground 14 set out in Part 2 of Schedule 2 (conduct of tenant or other person).

(2) The court must consider, in particular—

(a) the effect that the nuisance or annoyance has had on persons other than the person against whom the order is sought;

(b) any continuing effect the nuisance or annoyance is likely to have on such persons;

(c) the effect that the nuisance or annoyance would be likely to have on such persons if the conduct is repeated.”

17 Devolution: Wales E+W

In Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672) references to the following Acts are to be treated as references to those Acts as amended by virtue of this Part—

(a) the Housing Act 1985;

(b) the Housing Act 1988;

(c) the Housing Act 1996 (c. 52).

Part 3 E+W Parental responsibilities

Parenting orders under the 1998 Act E+W

18 Parenting orders under the 1998 Act E+W

(1) Section 8 of the Crime and Disorder Act 1998 (c. 37) is amended as follows.

(2) For subsections (4) and (5) substitute—

“(4) A parenting order is an order which requires the parent—

(a) to comply, for a period not exceeding twelve months, with such requirements as are specified in the order, and

(b) subject to subsection (5) below, to attend, for a concurrent period not exceeding three months, such counselling or guidance programme as may be specified in directions given by the responsible officer.

(5) A parenting order may, but need not, include such a requirement as is mentioned in subsection (4)(b) above in any case where a parenting order under this section or any other enactment has been made in respect of the parent on a previous occasion.”

(3) After subsection (7) insert—

“(7A) A counselling or guidance programme which a parent is required to attend by virtue of subsection (4)(b) above may be or include a residential course but only if the court is satisfied—

(a) that the attendance of the parent at a residential course is likely to be more effective than his attendance at a non-residential course in preventing any such repetition or, as the case may be, the commission of any such further offence, and

(b) that any interference with family life which is likely to result from the attendance of the parent at a residential course is proportionate in all the circumstances.”

Commencement Information

I12 S. 18 in force at 27.2.2004 by S.I. 2003/3300, art. 3(a)(i)

Truancy and exclusion from school E+W

19 Parenting contracts in cases of exclusion from school or truancy E+W

(1) This section applies where a pupil has been excluded on disciplinary grounds from a relevant school for a fixed period or permanently.

(2) This section also applies where a child of compulsory school age has failed to attend regularly at a relevant school at which he is a registered pupil.

(3) A local education authority or the governing body of a relevant school may enter into a parenting contract with a parent of the pupil or child.

(4) A parenting contract is a document which contains—

(a) a statement by the parent that he agrees to comply with such requirements as may be specified in the document for such period as may be so specified, and

(b) a statement by the local education authority or governing body that it agrees to provide support to the parent for the purpose of complying with those requirements.

(5) The requirements mentioned in subsection (4) may include (in particular) a requirement to attend a counselling or guidance programme.

(6) The purpose of the requirements mentioned in subsection (4)—

(a) in a case falling within subsection (1), is to improve the behaviour of the pupil,

(b) in a case falling within subsection (2), is to ensure that the child attends regularly at the relevant school at which he is a registered pupil.

(7) A parenting contract must be signed by the parent and signed on behalf of the local education authority or governing body.

(8) A parenting contract does not create any obligations in respect of whose breach any liability arises in contract or in tort.

(9) Local education authorities and governing bodies of relevant schools must, in carrying out their functions in relation to parenting contracts, have regard to any guidance which is issued by the appropriate person from time to time for that purpose.

Commencement Information

I13 S. 19 in force at 27.2.2004 for E. by S.I. 2003/3300, art. 4(a)

20 Parenting orders in cases of exclusion from school E+W

(1) This section applies where—

(a) a pupil has been excluded on disciplinary grounds from a relevant school for a fixed period or permanently, and

(b) such conditions as may be prescribed in regulations made by the appropriate person are satisfied.

(2) A local education authority may apply to a magistrates' court for a parenting order in respect of a parent of the pupil.

(3) If such an application is made, the court may make a parenting order in respect of a parent of the pupil if it is satisfied that making the order would be desirable in the interests of improving the behaviour of the pupil.

(4) A parenting order is an order which requires the parent—

(a) to comply, for a period not exceeding twelve months, with such requirements as are specified in the order, and

(b) subject to subsection (5), to attend, for a concurrent period not exceeding three months, such counselling or guidance programme as may be specified in directions given by the responsible officer.

(5) A parenting order under this section may, but need not, include a requirement mentioned in subsection (4)(b) in any case where a parenting order under this section or any other enactment has been made in respect of the parent on a previous occasion.

(6) A counselling or guidance programme which a parent is required to attend by virtue of subsection (4)(b) may be or include a residential course but only if the court is satisfied that the following two conditions are fulfilled.

(7) The first condition is that the attendance of the parent at a residential course is likely to be more effective than his attendance at a non-residential course in improving the behaviour of the pupil.

(8) The second condition is that any interference with family life which is likely to result from the attendance of the parent at a residential course is proportionate in all the circumstances.

Commencement Information

I14 S. 20 in force at 27.2.2004 for E. by S.I. 2003/3300, art. 4(b)

21 Parenting orders: supplemental E+W

(1) In deciding whether to make a parenting order under section 20, a court must take into account (amongst other things)—

(a) any refusal by the parent to enter into a parenting contract under section 19 in respect of the pupil in a case falling within subsection (1) of that section, or

(b) if the parent has entered into such a parenting contract, any failure by the parent to comply with the requirements specified in the contract.

(2) Before making a parenting order under section 20 in the case of a pupil under the age of 16, a court must obtain and consider information about the pupil’s family circumstances and the likely effect of the order on those circumstances.

(3) Subsections (3) to (7) of section 9 of the Crime and Disorder Act 1998 (c. 37) (supplemental provisions about parenting orders) are to apply in relation to a parenting order under section 20 as they apply in relation to a parenting order under section 8 of that Act.

(4) The appropriate person may by regulations make provision as to how the costs associated with the requirements of parenting orders under section 20 (including the costs of providing counselling or guidance programmes) are to be borne.

(5) Local education authorities, head teachers and responsible officers must, in carrying out their functions in relation to parenting orders, have regard to any guidance which is issued by the appropriate person from time to time for that purpose.

Commencement Information

I15 S. 21 in force at 27.2.2004 for E. by S.I. 2003/3300, art. 4(c)

22 Parenting orders: appeals E+W

(1) An appeal lies to the Crown Court against the making of a parenting order under section 20.

(2) Subsections (2) and (3) of section 10 of the Crime and Disorder Act 1998 (appeals against parenting orders) are to apply in relation to an appeal under this section as they apply in relation to an appeal under subsection (1)(b) of that section.

Commencement Information

I16 S. 22 in force at 27.2.2004 for E. by S.I. 2003/3300, art. 4(d)

23 Penalty notices for parents in cases of truancy E+W

(1) After section 444 of the Education Act 1996 (c. 56) (failure to secure regular attendance at school of registered pupil) insert—

“444A Penalty notice in respect of failure to secure regular attendance at school of registered pupil

(1) Where an authorised officer has reason to believe—

(a) that a person has committed an offence under section 444(1), and

(b) that the school to which the offence relates is a relevant school in England,

he may give the person a penalty notice in respect of the offence.

(2) A penalty notice is a notice offering a person the opportunity of discharging any liability to conviction for the offence under section 444(1) to which the notice relates by payment of a penalty in accordance with the notice.

(3) Where a person is given a penalty notice, proceedings for the offence to which the notice relates (or an offence under section 444(1A) arising out of the same circumstances) may not be instituted before the end of such period as may be prescribed.

(4) Where a person is given a penalty notice, he cannot be convicted of the offence to which the notice relates (or an offence under section 444(1A) arising out of the same circumstances) if he pays a penalty in accordance with the notice.

(5) Penalties under this section shall be payable to local education authorities in England.

(6) Sums received by a local education authority under this section may be used by the authority for the purposes of any of its functions which may be specified in regulations.

444B Penalty notices: supplemental

(1) Regulations may make—

(a) provision as to the form and content of penalty notices,

(b) provision as to the monetary amount of any penalty and the time by which it is to be paid,

(c) provision for determining the local education authority to which a penalty is payable,

(d) provision as to the methods by which penalties may be paid,

(e) provision as to the records which are to be kept in relation to penalty notices,

(f) provision as to the persons who may be authorised by a local education authority or a head teacher to give penalty notices,

(g) provision limiting the circumstances in which authorised officers of a prescribed description may give penalty notices,

(h) provision for or in connection with the withdrawal, in prescribed circumstances, of a penalty notice, including—

(i) repayment of any amount paid by way of penalty under a penalty notice which is withdrawn, and

(ii) prohibition of the institution or continuation of proceedings for the offence to which the withdrawn notice relates (and any offence under section 444(1A) arising out of the same circumstances),

(i) provision for a certificate—

(i) purporting to be signed by or on behalf of a prescribed person, and

(ii) stating that payment of any amount paid by way of penalty was or, as the case may be, was not received on or before a date specified in the certificate,

to be received in evidence of the matters so stated,

(j) provision as to the action to be taken if a penalty is not paid in accordance with a penalty notice,

(k) provision for or in connection with the preparation of codes of conduct in relation to the giving of penalty notices,

(l) such other provision in relation to penalties or penalty notices as the Secretary of State thinks necessary or expedient.

(2) Without prejudice to the generality of subsection (1) or section 569(4), regulations under subsection (1)(b) may make provision for penalties of different amounts to be payable in different cases or circumstances (including provision for the penalty payable under a penalty notice to differ according to the time by which it is paid).

(3) Local education authorities, head teachers and authorised officers shall, in carrying out their functions in relation to penalty notices, have regard to any guidance which is published by the Secretary of State from time to time in relation to penalty notices.

(4) In this section and section 444A—

• “authorised officer” means—

  (a)

  a constable,

  (b)

  an officer of a local education authority in England who is authorised by the authority to give penalty notices, or

  (c)

  an authorised staff member,

• “authorised staff member” means—

  (a)

  a head teacher of a relevant school in England, or

  (b)

  a member of the staff of a relevant school in England who is authorised by the head teacher of the school to give penalty notices,

• “penalty” means a penalty under a penalty notice,

• “penalty notice” has the meaning given by section 444A(2),

• “relevant school” means—

  (a)

  a maintained school,

  (b)

  a pupil referral unit,

  (c)

  an Academy,

  (d)

  a city technology college, or

  (e)

  a city college for the technology of the arts.”

(2) In section 572 of that Act (service of notices and other documents) for “served on any person may be served” substitute “ served on, or given to, any person may be served or given ”.

(3) In paragraph 1(2) of Schedule 4 to the Police Reform Act 2002 (c. 30) (powers of community support officers to issue fixed penalty notices) after paragraph (a) insert—

“(aa) the power of a constable to give a penalty notice under section 444A of the Education Act 1996 (penalty notice in respect of failure to secure regular attendance at school of registered pupil);”.

(4) After paragraph 1(3) of that Schedule insert—

“(4) In its application to an offence which is an offence by reference to which a notice may be given to a person in exercise of the power mentioned in sub-paragraph (2)(aa), sub-paragraph (1) shall have effect as if for the words from “who he has reason to believe” to the end there were substituted “in the relevant police area who he has reason to believe has committed a relevant fixed penalty offence”.”

(5) In paragraph 2 of that Schedule (power to detain etc) after sub-paragraph (6) insert—

“(7) In its application to an offence which is an offence by reference to which a notice may be given to a person in exercise of the power mentioned in paragraph 1(2)(aa), sub-paragraph (2) of this paragraph shall have effect as if for the words “has committed a relevant offence in the relevant police area” there were substituted “in the relevant police area has committed a relevant offence”.”

(6) In paragraph 1(2) of Schedule 5 to that Act (powers of accredited persons to issue fixed penalty notices) before paragraph (b) insert—

“(ab) the power of a constable to give a penalty notice under section 444A of the Education Act 1996 (penalty notice in respect of failure to secure regular attendance at school of registered pupil);”.

(7) After paragraph 1(3) of that Schedule insert—

“(4) In its application to an offence which is an offence by reference to which a notice may be given to a person in exercise of the power mentioned in sub-paragraph (2)(ab), sub-paragraph (1) shall have effect as if for the words from “who he has reason to believe” to the end there were substituted “in the relevant police area who he has reason to believe has committed or is committing a relevant fixed penalty offence”.”

(8) In paragraph 2 of that Schedule (power to require giving of name and address) after sub-paragraph (3) insert—

“(4) In its application to an offence which is an offence by reference to which a notice may be given to a person in exercise of the power mentioned in paragraph 1(2)(ab), sub-paragraph (1) of this paragraph shall have effect as if for the words “has committed a relevant offence in the relevant police area” there were substituted “in the relevant police area has committed a relevant offence”.”

(9) The National Assembly for Wales may by order amend sections 444A and 444B of the Education Act 1996 (c. 56) by removing the words “in England” in each place where they occur.

(10) Where an order is made under subsection (9), any functions of the Secretary of State under sections 444A and 444B of the Education Act 1996 which by virtue of the order become exercisable in relation to Wales are to be treated as if they had been transferred to the National Assembly for Wales by an Order in Council under section 22 of the Government of Wales Act 1998 (c. 38).

Commencement Information

I17 S. 23 in force at 27.2.2004 by S.I. 2003/3300, art. 3(a)(ii)

24 Interpretation E+W

In this section and sections 19 to 21—

• “the appropriate person” means—

  (a)

  in relation to England, the Secretary of State, and

  (b)

  in relation to Wales, the National Assembly for Wales,

• “child of compulsory school age” has the same meaning as in the 1996 Act, and “child” is to be construed accordingly,

• “head teacher” includes acting head teacher, teacher in charge and acting teacher in charge,

• “local education authority” has the same meaning as in the 1996 Act,

• “parent”, in relation to a pupil or child, is to be construed in accordance with section 576 of the 1996 Act, but does not include a person who is not an individual,

• “pupil” is to be construed in accordance with section 3(1) and (1A) of the 1996 Act,

• “registered pupil” has the meaning given by section 434(5) of the 1996 Act,

• “relevant school” means—

  (a)

  a qualifying school as defined in section 1(3) of the Education Act 2002 (c. 32), or

  (b)

  a pupil referral unit as defined in section 19(2) of the 1996 Act,

• “responsible officer”, in relation to a parenting order, means one of the following who is specified in the order, namely—

  (a)

  an officer of a local education authority, and

  (b)

  a head teacher or a person nominated by a head teacher,

  but a person falling within paragraph (b) may not be specified in the order without his consent,

• “the 1996 Act” means the Education Act 1996 (c. 56).

Commencement Information

I18 S. 24 in force at 27.2.2004 for E. by S.I. 2003/3300, art. 4(e)

Criminal conduct and anti-social behaviour E+W

25 Parenting contracts in respect of criminal conduct and anti-social behaviour E+W

(1) This section applies where a child or young person has been referred to a youth offending team.

(2) The youth offending team may enter into a parenting contract with a parent of the child or young person if a member of that team has reason to believe that the child or young person has engaged, or is likely to engage, in criminal conduct or anti-social behaviour.

(3) A parenting contract is a document which contains—

(a) a statement by the parent that he agrees to comply with such requirements as may be specified in the document for such period as may be so specified, and

(b) a statement by the youth offending team that it agrees to provide support to the parent for the purpose of complying with those requirements.

(4) The requirements mentioned in subsection (3)(a) may include (in particular) a requirement to attend a counselling or guidance programme.

(5) The purpose of the requirements mentioned in subsection (3)(a) is to prevent the child or young person from engaging in criminal conduct or anti-social behaviour or further criminal conduct or further anti-social behaviour.

(6) A parenting contract must be signed by the parent and signed on behalf of the youth offending team.

(7) A parenting contract does not create any obligations in respect of whose breach any liability arises in contract or in tort.

(8) Youth offending teams must, in carrying out their functions in relation to parenting contracts, have regard to any guidance which is issued by the Secretary of State from time to time for that purpose.

Commencement Information

I19 S. 25 in force at 27.2.2004 by S.I. 2003/3300, art. 3(a)(iii)

26 Parenting orders in respect of criminal conduct and anti-social behaviour E+W

(1) This section applies where a child or young person has been referred to a youth offending team.

(2) A member of the youth offending team may apply to a magistrates' court for a parenting order in respect of a parent of the child or young person.

(3) If such an application is made, the court may make a parenting order in respect of a parent of the child or young person if it is satisfied—

(a) that the child or young person has engaged in criminal conduct or anti-social behaviour, and

(b) that making the order would be desirable in the interests of preventing the child or young person from engaging in further criminal conduct or further anti-social behaviour.

(4) A parenting order is an order which requires the parent—

(a) to comply, for a period not exceeding twelve months, with such requirements as are specified in the order, and

(b) subject to subsection (5), to attend, for a concurrent period not exceeding three months, such counselling or guidance programme as may be specified in directions given by the responsible officer.

(5) A parenting order under this section may, but need not, include a requirement mentioned in subsection (4)(b) in any case where a parenting order under this section or any other enactment has been made in respect of the parent on a previous occasion.

(6) A counselling or guidance programme which a parent is required to attend by virtue of subsection (4)(b) may be or include a residential course but only if the court is satisfied that the following two conditions are fulfilled.

(7) The first condition is that the attendance of the parent at a residential course is likely to be more effective than his attendance at a non-residential course in preventing the child or young person from engaging in further criminal conduct or further anti-social behaviour.

(8) The second condition is that any interference with family life which is likely to result from the attendance of the parent at a residential course is proportionate in all the circumstances.

Commencement Information

I20 S. 26 in force at 27.2.2004 by S.I. 2003/3300, art. 3(a)(iii)

27 Parenting orders: supplemental E+W

(1) In deciding whether to make a parenting order under section 26, a court must take into account (amongst other things)—

(a) any refusal by the parent to enter into a parenting contract under section 25 in respect of the child or young person, or

(b) if the parent has entered into such a parenting contract, any failure by the parent to comply with the requirements specified in the contract.

(2) Before making a parenting order under section 26 in the case of a child or a young person under the age of 16, a court must obtain and consider information about the child or young person’s family circumstances and the likely effect of the order on those circumstances.

(3) Subsections (3) to (7) of section 9 of the 1998 Act (supplemental provisions about parenting orders) are to apply in relation to a parenting order under section 26 as they apply in relation to a parenting order under section 8 of that Act.

(4) Members of youth offending teams and responsible officers must, in carrying out their functions in relation to parenting orders, have regard to any guidance which is issued by the Secretary of State from time to time for that purpose.

Commencement Information

I21 S. 27 in force at 27.2.2004 by S.I. 2003/3300, art. 3(a)(iii)

28 Parenting orders: appeals E+W

(1) An appeal lies to the Crown Court against the making of a parenting order under section 26.

(2) Subsections (2) and (3) of section 10 of the 1998 Act (appeals against parenting orders) are to apply in relation to an appeal under this section as they apply in relation to an appeal under subsection (1)(b) of that section.

Commencement Information

I22 S. 28 in force at 27.2.2004 by S.I. 2003/3300, art. 3(a)(iii)

29 Interpretation and consequential amendment E+W

(1) In this section and sections 25 to 28—

• “anti-social behaviour” means behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more other persons not of the same household as the person,

• “child” has the same meaning as in the 1998 Act,

• “criminal conduct” means conduct which—

  (a)

  constitutes a criminal offence, or

  (b)

  in the case of conduct by a person under the age of 10, would constitute a criminal offence if that person were not under that age,

• “guardian” has the same meaning as in the Children and Young Persons Act 1933 (c. 12),

• “parent” includes guardian,

• “responsible officer”, in relation to a parenting order, means a member of a youth offending team who is specified in the order,

• “the 1998 Act” means the Crime and Disorder Act 1998 (c. 37),

• “young person” has the same meaning as in the 1998 Act,

• “youth offending team” means a team established under section 39 of the 1998 Act.

(2) In section 38(4) of the 1998 Act (meaning of “youth justice services”) after paragraph (e) insert—

“(ee) the performance by youth offending teams and members of youth offending teams of functions under sections 25 to 27 of the Anti-social Behaviour Act 2003;”.

Commencement Information

I23 S. 29 in force at 27.2.2004 by S.I. 2003/3300, art. 3(a)(iii)

Part 4 E+W Dispersal of groups etc.

30 Dispersal of groups and removal of persons under 16 to their place of residence E+W

(1) This section applies where a relevant officer has reasonable grounds for believing—

(a) that any members of the public have been intimidated, harassed, alarmed or distressed as a result of the presence or behaviour of groups of two or more persons in public places in any locality in his police area (the “relevant locality”), and

(b) that anti-social behaviour is a significant and persistent problem in the relevant locality.

(2) The relevant officer may give an authorisation that the powers conferred on a constable in uniform by subsections (3) to (6) are to be exercisable for a period specified in the authorisation which does not exceed 6 months.

(3) Subsection (4) applies if a constable in uniform has reasonable grounds for believing that the presence or behaviour of a group of two or more persons in any public place in the relevant locality has resulted, or is likely to result, in any members of the public being intimidated, harassed, alarmed or distressed.

(4) The constable may give one or more of the following directions, namely—

(a) a direction requiring the persons in the group to disperse (either immediately or by such time as he may specify and in such way as he may specify),

(b) a direction requiring any of those persons whose place of residence is not within the relevant locality to leave the relevant locality or any part of the relevant locality (either immediately or by such time as he may specify and in such way as he may specify), and

(c) a direction prohibiting any of those persons whose place of residence is not within the relevant locality from returning to the relevant locality or any part of the relevant locality for such period (not exceeding 24 hours) from the giving of the direction as he may specify;

but this subsection is subject to subsection (5).

(5) A direction under subsection (4) may not be given in respect of a group of persons—

(a) who are engaged in conduct which is lawful under section 220 of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52), or

(b) who are taking part in a public procession of the kind mentioned in section 11(1) of the Public Order Act 1986 (c. 64) in respect of which—

(i) written notice has been given in accordance with section 11 of that Act, or

(ii) such notice is not required to be given as provided by subsections (1) and (2) of that section.

(6) If, between the hours of 9pm and 6am, a constable in uniform finds a person in any public place in the relevant locality who he has reasonable grounds for believing—

(a) is under the age of 16, and

(b) is not under the effective control of a parent or a responsible person aged 18 or over,

he may remove the person to the person’s place of residence unless he has reasonable grounds for believing that the person would, if removed to that place, be likely to suffer significant harm.

(7) In this section any reference to the presence or behaviour of a group of persons is to be read as including a reference to the presence or behaviour of any one or more of the persons in the group.

Commencement Information

I24 S. 30 in force at 20.1.2004 by S.I. 2003/3300, art. 2(b)

31 Authorisations: supplemental E+W

(1) An authorisation—

(a) must be in writing,

(b) must be signed by the relevant officer giving it, and

(c) must specify—

(i) the relevant locality,

(ii) the grounds on which the authorisation is given, and

(iii) the period during which the powers conferred by section 30(3) to (6) are exercisable.

(2) An authorisation may not be given without the consent of the local authority or each local authority whose area includes the whole or part of the relevant locality.

(3) Publicity must be given to an authorisation by either or both of the following methods—

(a) publishing an authorisation notice in a newspaper circulating in the relevant locality,

(b) posting an authorisation notice in some conspicuous place or places within the relevant locality.

(4) An “authorisation notice” is a notice which—

(a) states the authorisation has been given,

(b) specifies the relevant locality, and

(c) specifies the period during which the powers conferred by section 30(3) to (6) are exercisable.

(5) Subsection (3) must be complied with before the beginning of the period mentioned in subsection (4)(c).

(6) An authorisation may be withdrawn by—

(a) the relevant officer who gave it, or

(b) any other relevant officer whose police area includes the relevant locality and whose rank is the same as or higher than that of the relevant officer mentioned in paragraph (a).

(7) Before the withdrawal of an authorisation, consultation must take place with any local authority whose area includes the whole or part of the relevant locality.

(8) The withdrawal of an authorisation does not affect the exercise of any power pursuant to that authorisation which occurred prior to its withdrawal.

(9) The giving or withdrawal of an authorisation does not prevent the giving of a further authorisation in respect of a locality which includes the whole or any part of the relevant locality to which the earlier authorisation relates.

(10) In this section “authorisation” means an authorisation under section 30.

Commencement Information

I25 S. 31 in force at 20.1.2004 by S.I. 2003/3300, art. 2(b)

32 Powers under section 30: supplemental E+W

(1) A direction under section 30(4)—

(a) may be given orally,

(b) may be given to any person individually or to two or more persons together, and

(c) may be withdrawn or varied by the person who gave it.

(2) A person who knowingly contravenes a direction given to him under section 30(4) commits an offence and is liable on summary conviction to—

(a) a fine not exceeding level 4 on the standard scale, or

(b) imprisonment for a term not exceeding 3 months,

or to both.

(3) A constable in uniform may arrest without warrant any person he reasonably suspects has committed an offence under subsection (2).

(4) Where the power under section 30(6) is exercised, any local authority whose area includes the whole or part of the relevant locality must be notified of that fact.

Commencement Information

I26 S. 32 in force at 20.1.2004 by S.I. 2003/3300, art. 2(b)

33 Powers of community support officers E+W

(1) Part 1 of Schedule 4 to the Police Reform Act 2002 (c. 30) (powers of community support officers) is amended as follows.

(2) In paragraph 2 (power to detain etc) after sub-paragraph (6)(a) insert—

“(aa) an offence under section 32(2) of the Anti-social Behaviour Act 2003; or”.

(3) After paragraph 4 insert—

“4A “Power to disperse groups and remove young persons to their place of residence

“4A Where a designation applies this paragraph to any person, that person shall, within the relevant police area, have the powers which, by virtue of an authorisation under section 30 of the Anti-social Behaviour Act 2003, are conferred on a constable in uniform by section 30(3) to (6) of that Act (power to disperse groups and remove persons under 16 to their place of residence).

4B Power to disperse groups and remove young persons to their place of residence

(1) Where a designation applies this paragraph to any person, that person shall, within the relevant police area, have the power of a constable under section 15(3) of the Crime and Disorder Act 1998 (power to remove child to their place of residence).

(2) Section 15(1) of that Act shall have effect in relation to the exercise of that power by that person as if the reference to a constable in that section were a reference to that person.

(3) Where that person exercises that power, the duty in section 15(2) of that Act (duty to inform local authority of contravention of curfew notice) is to apply to him as it applies to a constable.”

Commencement Information

I27 S. 33 in force at 20.1.2004 by S.I. 2003/3300, art. 2(b)

34 Code of practice E+W

(1) The Secretary of State may issue a code of practice about—

(a) the giving or withdrawal of authorisations under section 30, and

(b) the exercise of the powers conferred by section 30(3) to (6).

(2) The Secretary of State may from time to time revise the whole or any part of a code of practice issued under this section.

(3) The Secretary of State must lay any code of practice issued by him under this section, and any revisions of such a code, before Parliament.

(4) In giving or withdrawing an authorisation under section 30, a relevant officer must have regard to any code of practice for the time being in force under this section.

(5) In exercising the powers conferred by section 30(3) to (6), a constable in uniform or community support officer must have regard to any code of practice for the time being in force under this section.

(6) A code of practice under this section may make different provision for different cases.

Commencement Information

I28 S. 34 in force at 20.1.2004 by S.I. 2003/3300, art. 2(b)

35 Authorisations by British Transport Police E+W

(1) For the purposes of the giving of an authorisation under section 30 by a relevant officer who is an officer of the British Transport Police Force, section 30(1) is to have effect as if for “in his police area” there were substituted “which forms part of property in relation to which he has all the powers and privileges of a constable by virtue of section 31(1)(a) to (f) of the Railways and Transport Safety Act 2003”.

(2) Where such an authorisation is given by such an officer, section 31(6)(b) is to have effect as if for “whose police area includes the relevant locality” there were substituted “who is an officer of the British Transport Police Force”.

Commencement Information

I29 S. 35 in force at 20.1.2004 by S.I. 2003/3300, art. 2(b)

36 Interpretation E+W

In this Part—

• “anti-social behaviour” means behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more other persons not of the same household as the person,

• “local authority” means—

  (a)

  in relation to England, a district council, a county council that is the council for a county in which there are no district councils, a London borough council, the Common Council of the City of London or the Council of the Isles of Scilly,

  (b)

  in relation to Wales, a county council or a county borough council,

• “public place” means—

  (a)

  any highway, and

  (b)

  any place to which at the material time the public or any section of the public has access, on payment or otherwise, as of right or by virtue of express or implied permission,

• “relevant locality” has the same meaning as in section 30,

• “relevant officer” means a police officer of or above the rank of superintendent.

Commencement Information

I30 S. 36 in force at 20.1.2004 by S.I. 2003/3300, art. 2(b)

Part 5 E+W+S Firearms

37 Possession of air weapon or imitation firearm in public place E+W+S

(1) In section 19 of the Firearms Act 1968 (c. 27) (offence to carry firearm in public place) for the words from “a loaded shot gun” to the end of the section substitute—

“(a) a loaded shot gun,

(b) an air weapon (whether loaded or not),

(c) any other firearm (whether loaded or not) together with ammunition suitable for use in that firearm, or

(d) an imitation firearm.”

(2) In Part I of Schedule 6 to that Act (punishment) in the entry relating to section 19—

(a) in the second column (general nature of offence) for “loaded firearm” substitute “ firearm or imitation firearm ”, and

(b) in the third column (mode of prosecution) after “not” insert “ in the case of an imitation firearm or ”.

(3) The following shall be inserted after paragraph 5 of Schedule 1A to the Police and Criminal Evidence Act 1984 (c. 60) (arrestable offences)—

“Firearms Act 1968

5A An offence under section 19 of the Firearms Act 1968 (carrying firearm or imitation firearm in public place) in respect of an air weapon or imitation firearm.”

Commencement Information

I31 S. 37 in force at 20.1.2004 by S.I. 2003/3300, art. 2(c)(i)

38 Air weapons: age limits E+W+S

(1) The Firearms Act 1968 shall be amended as follows.

(2) In section 22 (acquisition and possession of firearms by minors)—

(a) in subsection (4) for “fourteen” substitute “ seventeen ”, and

(b) omit subsection (5).

(3) In section 23 (the heading to which becomes “Exceptions from s. 22(4)”)—

(a) in subsection (2) omit “or (5)”, and

(b) after subsection (2) insert—

“(3) It is not an offence under section 22(4) of this Act for a person of or over the age of fourteen to have with him an air weapon or ammunition on private premises with the consent of the occupier.

(4) But where a person has with him an air weapon on premises in circumstances where he would be prohibited from having it with him but for subsection (3), it is an offence for him to use it for firing any missile beyond those premises.”

(4) In section 24(4) (offence to give air weapon or ammunition to person under fourteen)—

(a) in paragraph (a) for “fourteen” substitute “ seventeen ”, and

(b) in paragraph (b) for “that age” substitute “ the age of seventeen ”.

(5) In Part I of Schedule 6 (punishment)—

(a) in the entry relating to section 22(4) in the second column (general nature of offence) for “14” substitute “ 17 ”,

(b) omit the entry relating to section 22(5),

(c) in the entry relating to section 23(1) in the second column for “14” substitute “ 17 ”,

(d) after that entry insert—

“Section 23(4)

Person under 17 making improper use of air weapon on private premises.

Summary

A fine of level 3 on the standard scale.

Paragraphs 7 and 8 of Part II of this Schedule apply.”,

and

(e) in the entry relating to section 24(4) in the second column for “14” substitute “ 17 ”.

(6) In Part II of that Schedule (supplementary)—

(a) in paragraph 7 for “22(4) or (5), 23(1)” substitute “ 22(4), 23(1) or (4) ”, and

(b) in paragraph 8 for “22(3), (4) or (5), 23(1)” substitute “ 22(3) or (4), 23(1) or (4) ”.

Commencement Information

I32 S. 38 in force at 20.1.2004 by S.I. 2003/3300, art. 2(c)(ii)

39 Prohibition of certain air weapons E+W+S

(1) The Firearms Act 1968 (c. 27) shall be amended as follows.

(2) In section 1(3)(b) after “air pistol” insert “ which does not fall within section 5(1) and which is ”.

(3) In section 5 (weapons subject to general prohibition) after subsection (1)(ae) insert—

“(af) any air rifle, air gun or air pistol which uses, or is designed or adapted for use with, a self-contained gas cartridge system;”.

(4) If at the time when subsection (3) comes into force a person has in his possession an air rifle, air gun or air pistol of the kind described in section 5(1)(af) of the Firearms Act 1968 (inserted by subsection (3) above)—

(a) section 5(1) of that Act shall not prevent the person’s continued possession of the air rifle, air gun or air pistol,

(b) section 1 of that Act shall apply, and

(c) a chief officer of police may not refuse to grant or renew, and may not revoke or partially revoke, a firearm certificate under Part II of that Act on the ground that the person does not have a good reason for having the air rifle, air gun or air pistol in his possession.

(5) But subsection (4)(a) to (c) shall not apply to possession in the circumstances described in section 8 of that Act (authorised dealing).

(6) In section 1 of the Firearms (Amendment) Act 1988 (c. 45)—

(a) in subsection (4), omit the word “or” at the end of paragraph (a) and after paragraph (b) insert— “; or

(c) any air rifle, air gun or air pistol which is not for the time being specified in that subsection but appears to him to be specially dangerous,”, and

(b) after subsection (4) insert—

“(4A) An order under subsection (4)—

(a) may provide for a provision of the principal Act to apply with or without modification or exception in relation to anything added to subsection (1) of section 5 by the order,

(b) may impose conditions in respect of any application, modification or exception provided for by the order (which may, in particular, include provision requiring a person to obtain a certificate in accordance with an enactment referred to or applied by the order),

(c) may make provision generally or by reference to a particular purpose or circumstance,

(d) may confer a function on the Secretary of State or another specified person, and

(e) may make transitional, consequential or incidental provision.”

Commencement Information

I33 S. 39(1)(2)(4)-(6) in force at 20.1.2004 by S.I. 2003/3300, art. 2(c)(iii)

I34 S. 39(3) in force at 20.1.2004 for specified purposes by S.I. 2003/3300, art. 2(c)(iii)

Part 6 E+W The environment

Noise E+W

40 Closure of noisy premises E+W

(1) The chief executive officer of the relevant local authority may make a closure order in relation to premises to which this section applies if he reasonably believes that—

(a) a public nuisance is being caused by noise coming from the premises, and

(b) the closure of the premises is necessary to prevent that nuisance.

(2) This section applies to premises if—

(a) a premises licence has effect in respect of them, or

(b) a temporary event notice has effect in respect of them.

(3) In this section “closure order” means an order which requires specified premises to be kept closed during a specified period which—

(a) does not exceed 24 hours, and

(b) begins when a manager of the premises receives written notice of the order.

(4) A person commits an offence if without reasonable excuse he permits premises to be open in contravention of a closure order.

(5) A person guilty of an offence under this section shall be liable on summary conviction to—

(a) imprisonment for a term not exceeding three months,

(b) a fine not exceeding £20,000, or

(c) both.

Commencement Information

I35 S. 40 in force at 31.3.2004 for E. by S.I. 2004/690, art. 3(a)

I36 S. 40 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(a)

41 Closure of noisy premises: supplemental E+W

(1) Where a closure order is made in relation to premises, the chief executive officer of the relevant local authority—

(a) may cancel the closure order by notice in writing to a manager of the premises,

(b) shall cancel the order as soon as is reasonably practicable if he believes that it is no longer necessary in order to prevent a public nuisance being caused by noise coming from the premises, and

(c) shall give notice of the order as soon as is reasonably practicable to the licensing authority for the area in which the premises are situated.

(2) The chief executive officer of a local authority may authorise an environmental health officer of the authority to exercise a power or duty of the chief executive officer under section 40(1) or under subsection (1) above; and—

(a) authority under this subsection may be general or specific, and

(b) a reference in section 40(1) or subsection (1) above to a belief of the chief executive officer includes a reference to a belief of a person authorised under this subsection.

(3) In section 40 and this section—

• “chief executive officer” of an authority means the head of the paid service of the authority designated under section 4 of the Local Government and Housing Act 1989 (c. 42),

• “environmental health officer” of an authority means an officer authorised by the authority for the purpose of exercising a statutory function in relation to pollution of the environment or harm to human health,

• “licensing authority” has the same meaning as in the Licensing Act 2003 (c. 17),

• “manager” in relation to premises means—

  (a)

  a person who holds a premises licence in respect of the premises,

  (b)

  a designated premises supervisor under a premises licence in respect of the premises,

  (c)

  the premises user in relation to a temporary event notice which has effect in respect of the premises, and

  (d)

  any other person who works at the premises in a capacity (paid or unpaid) which enables him to close them,

• “premises licence” has the same meaning as in the Licensing Act 2003,

• “relevant local authority” in relation to premises means an authority which has statutory functions, for the area in which the premises are situated, in relation to minimising or preventing the risk of pollution of the environment or of harm to human health, and

• “temporary event notice” has the same meaning as in the Licensing Act 2003 (and is to be treated as having effect in accordance with section 170(6) of that Act).

Commencement Information

I37 S. 41 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(b)

I38 S. 41 in force at 31.3.2004 for E. by S.I. 2004/690, art. 3(b)

42 Dealing with noise at night E+W

(1) The Noise Act 1996 (c. 37) is amended as follows.

(2) For section 1 (sections 2 to 9 only apply to area of local authority if authority have so resolved or an order by Secretary of State so provides) substitute—

“1 Application of sections 2 to 9

Sections 2 to 9 apply to the area of every local authority in England and Wales.”

(3) For section 2(1) (local authority under duty to investigate complaint of noise from dwelling at night) substitute—

“(1) A local authority in England and Wales may, if they receive a complaint of the kind mentioned in subsection (2), arrange for an officer of the authority to take reasonable steps to investigate the complaint.”

(4) In section 2(7) (power of local authority to act in relation to dwelling within area of other authority) omit the words from “and accordingly” to the end.

(5) In section 9 (section 8: supplementary), for subsection (4) substitute—

“(4) A local authority may use any sums it receives under section 8 (its “penalty receipts”) only for the purposes of functions of its that are qualifying functions.

(4A) The following are qualifying functions for the purposes of this section—

(a) functions under this Act, and

(b) functions of a description specified in regulations made by the Secretary of State.

(4B) Regulations under subsection (4A)(b) may (in particular) have the effect that a local authority may use its penalty receipts for the purposes of any of its functions.

(4C) A local authority must supply the Secretary of State with such information relating to the use of its penalty receipts as the Secretary of State may require.

(4D) The Secretary of State may by regulations—

(a) make provision for what a local authority is to do with its penalty receipts—

(i) pending their being used for the purposes of qualifying functions of the authority;

(ii) if they are not so used before such time after their receipt as may be specified by the regulations;

(b) make provision for accounting arrangements in respect of a local authority’s penalty receipts.

(4E) The provision that may be made under subsection (4D)(a)(ii) includes (in particular) provision for the payment of sums to a person (including the Secretary of State) other than the local authority.

(4F) Before making regulations under this section, the Secretary of State must consult—

(a) the local authorities to which the regulations are to apply, and

(b) such other persons as the Secretary of State considers appropriate.”

(6) In section 11 (interpretation and subordinate legislation), in subsection (3) after “order”, in the first place where it occurs, insert “ or regulations ”.

(7) The reference to the Noise Act 1996 (c. 37) in Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/672) is to be treated as referring to that Act as amended by this section.

Commencement Information

I39 S. 42 in force at 31.3.2004 for E. by S.I. 2004/690, art. 3(c)

I40 S. 42 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(c)

Penalty notices for graffiti and fly-posting E+W

43 Penalty notices for graffiti and fly-posting E+W

(1) Where an authorised officer of a local authority has reason to believe that a person has committed a relevant offence in the area of that authority, he may give that person a notice offering him the opportunity of discharging any liability to conviction for that offence by payment of a penalty in accordance with the notice.

(2) But an authorised officer may not give a notice under subsection (1) if he considers that the commission of the offence—

(a) in the case of a relevant offence falling within section 44(1)(c), also involves the commission of an offence under section 30 of the Crime and Disorder Act 1998 (c. 37), or

(b) in the case of any other relevant offence, was motivated (wholly or partly) by hostility—

(i) towards a person based upon his membership (or presumed membership) of a racial or religious group, or

(ii) towards members of a racial or religious group based on their membership of that group.

(3) In the case of a relevant offence falling within section 44(1)(f), an authorised officer may not give a notice to a person under subsection (1) in relation to the display of an advertisement unless he has reason to believe that that person personally affixed or placed the advertisement to, against or upon the land or object on which the advertisement is or was displayed.

(4) Where a person is given a notice under subsection (1) in respect of an offence—

(a) no proceedings may be instituted for that offence (or any other relevant offence arising out of the same circumstances) before the expiration of the period of fourteen days following the date of the notice, and

(b) he may not be convicted of that offence (or any other relevant offence arising out of the same circumstances) if before the expiration of that period he pays the penalty in accordance with the notice.

(5) A notice under subsection (1) must give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence.

(6) A notice under subsection (1) must also state—

(a) the period during which, by virtue of subsection (4), proceedings will not be instituted for the offence,

(b) the amount of the penalty, and

(c) the person to whom and the address at which the penalty may be paid.

(7) Without prejudice to payment by any other method, payment of a penalty in pursuance of a notice under subsection (1) may be made by pre-paying and posting a letter containing the amount of the penalty (in cash or otherwise) to the person mentioned in subsection (6)(c) at the address so mentioned.

(8) Where a letter is sent in accordance with subsection (7) payment is to be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.

(9) A notice under subsection (1) must be in such form as the appropriate person may by order prescribe.

(10) Subject to subsection (11), the penalty payable in pursuance of a notice under subsection (1) is £50.

(11) The appropriate person may by order substitute a different amount for the amount for the time being specified in subsection (10).

Commencement Information

I41 S. 43 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(d)

I42 S. 43 in force at 31.3.2004 for E. by S.I. 2004/690, art. 3(d)

44 Meaning of relevant offence E+W

(1) “Relevant offence” means—

(a) an offence under paragraph 10 of section 54 of the Metropolitan Police Act 1839 (c. 47) (affixing posters etc),

(b) an offence under section 20(1) of the London County Council (General Powers) Act 1954 (defacement of streets with slogans etc),

(c) an offence under section 1(1) of the Criminal Damage Act 1971 (c. 48) (damaging property etc) which involves only the painting or writing on, or the soiling, marking or other defacing of, any property by whatever means,

(d) an offence under section 131(2) of the Highways Act 1980 (c. 66) (including that provision as applied by section 27(6) of the Countryside Act 1968 (c. 41)) which involves only an act of obliteration,

(e) an offence under section 132(1) of the Highways Act 1980 (painting or affixing things on structures on the highway etc),

(f) an offence under section 224(3) of the Town and Country Planning Act 1990 (c. 8) (displaying advertisement in contravention of regulations).

(2) This section has effect for the purposes of the interpretation of section 43.

Commencement Information

I43 S. 44 in force at 31.3.2004 for E. by S.I. 2004/690, art. 3(e)

I44 S. 44 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(e)

45 Penalty receipts E+W

(1) Penalties which are payable in pursuance of notices under section 43(1) are payable to local authorities.

(2) In any proceedings a certificate which—

(a) purports to be signed by or on behalf of the person responsible for the financial affairs of a local authority, and

(b) states that payment of a penalty payable in pursuance of a notice under section 43(1) was or was not received by a date specified in the certificate,

is evidence of the facts stated.

(3) A local authority may use any sums it receives in respect of penalties payable to it in pursuance of notices under section 43(1) (its “penalty receipts”) only for the purposes of functions of its that are qualifying functions.

(4) The following are qualifying functions for the purposes of this section—

(a) functions under section 43, and

(b) functions of a description specified in regulations made by the appropriate person.

(5) Regulations under subsection (4)(b) may (in particular) have the effect that a local authority may use its penalty receipts for the purposes of any of its functions.

(6) A local authority must supply the appropriate person with such information relating to its use of its penalty receipts as the appropriate person may require.

(7) The appropriate person may by regulations—

(a) make provision for what a local authority is to do with its penalty receipts—

(i) pending their being used for the purposes of qualifying functions of the authority;

(ii) if they are not so used before such time after their receipt as may be specified by the regulations;

(b) make provision for accounting arrangements in respect of a local authority’s penalty receipts.

(8) The provision that may be made under subsection (7)(a)(ii) includes (in particular) provision for the payment of sums to a person (including the appropriate person) other than the local authority.

(9) Before making regulations under this section, the appropriate person must consult—

(a) the local authorities to which the regulations are to apply, and

(b) such other persons as the appropriate person considers appropriate.

Commencement Information

I45 S. 45 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(f)

I46 S. 45 in force at 31.3.2004 for E. by S.I. 2004/690, art. 3(f)

46 Powers of police civilians E+W

(1) In paragraph 1 of Schedule 4 to the Police Reform Act 2002 (c. 30) (powers of community support officers to issue fixed penalty notices)—

(a) at the end of sub-paragraph (2)(c) omit “and”, and

(b) after sub-paragraph (2)(c) insert—

“(ca) the power of an authorised officer of a local authority to give a notice under section 43(1) of the Anti-social Behaviour Act 2003 (penalty notices in respect of graffiti or fly-posting); and”.

(2) In paragraph 1 of Schedule 5 to that Act (powers of accredited persons to issue fixed penalty notices)—

(a) at the end of sub-paragraph (2)(b) omit “and”, and

(b) after sub-paragraph (2)(b) insert—

“(ba) the power of an authorised officer of a local authority to give a notice under section 43(1) of the Anti-social Behaviour Act 2003 (penalty notices in respect of graffiti or fly-posting); and”.

Commencement Information

I47 S. 46 in force at 31.3.2004 by S.I. 2004/690, art. 2(a)(i)

47 Interpretation etc E+W

(1) In this section and sections 43 and 45—

• “advertisement” and “land” have the meanings given by section 336(1) of the Town and Country Planning Act 1990 (c. 8),

• “appropriate person” means—

  (a)

  in relation to England, the Secretary of State, and

  (b)

  in relation to Wales, the National Assembly for Wales,

• “authorised officer” means an officer of a local authority who is authorised in writing by the authority for the purpose of giving notices under section 43(1),

• “local authority” means an authority in England and Wales which is a litter authority for the purposes of section 88 of the Environmental Protection Act 1990 (c. 43),

• “racial group” and “religious group” have the meanings given by section 28(4) and (5) of the Crime and Disorder Act 1998 (c. 37).

(2) Section 28(2) of the Crime and Disorder Act 1998 is to apply for the purposes of section 43(2)(b)(i) as it applies for the purposes of section 28(1)(a) of that Act.

(3) The appropriate person may issue guidance—

(a) about the exercise of the discretion to give notices under section 43(1), and

(b) about the giving of such notices.

Commencement Information

I48 S. 47 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(g)

I49 S. 47 in force at 31.3.2004 for E. by S.I. 2004/690, art. 3(g)

Removal of graffiti E+W

48 Graffiti removal notices E+W

(1) This section applies where a local authority is satisfied—

(a) that a relevant surface in an area has been defaced by graffiti, and

(b) that the defacement is detrimental to the amenity of the area or is offensive.

(2) The authority may serve a notice (a “graffiti removal notice”) upon any person who is responsible for the surface imposing the requirement mentioned in subsection (3).

(3) That requirement is a requirement that the defacement be removed, cleared or otherwise remedied within a period specified in the notice being not less than 28 days beginning with the day on which the notice is served.

(4) If the requirement mentioned in subsection (3) is not complied with, the authority or any person authorised by the authority may remove, clear or otherwise remedy the defacement.

(5) In exercising the power under subsection (4) the authority or any person authorised by the authority may enter any land to the extent reasonably necessary for that purpose.

(6) A graffiti removal notice must explain the effect of subsections (4) and (5) and sections 49 and 51.

(7) Subject to subsection (8), section 160 of the Environmental Protection Act 1990 (c. 43) has effect in relation to graffiti removal notices as if they were notices within subsection (2) of that section.

(8) Where after reasonable enquiry a local authority is unable to ascertain the name or proper address of any person who is responsible for a relevant surface, the authority may—

(a) affix a graffiti removal notice to the surface, and

(b) enter any land to the extent reasonably necessary for that purpose;

and that notice shall be treated as having been served upon a person responsible for the surface.

(9) In this section a “relevant surface” is any of the following surfaces, whether internal or external or open to the air or not—

(a) the surface of any street or of any building, structure, apparatus, plant or other object in or on any street;

(b) the surface of any land owned, occupied or controlled by a statutory undertaker or of any building, structure, apparatus, plant or other object in or on any such land;

(c) the surface of any land owned, occupied or controlled by an educational institution (including its governing body) or of any building, structure, apparatus, plant or other object in or on any such land.

(10) But a surface is not a relevant surface unless—

(a) in the case of a surface within subsection (9)(a), the street is public land;

(b) in the case of a surface within subsection (9)(b) or (c)—

(i) the land is public land,

(ii) the surface is visible from public land, or

(iii) the surface is otherwise visible to members of the public using the services or facilities of the statutory undertaker or educational institution in question or any other statutory undertaker or educational institution.

(11) A person is responsible for a relevant surface if—

(a) where it is the surface of any land (including a street), he owns, leases, occupies, controls, operates or maintains the land, and

(b) where it is the surface of any other thing mentioned in subsection (9), he owns, leases, occupies, controls, operates or maintains the thing.

(12) In this section and in sections 49 to 52—

• “educational institution” has the meaning given by section 98(2) of the Environmental Protection Act 1990,

• “graffiti” includes painting, writing, soiling, marking or other defacing by whatever means,

• “graffiti removal notice” has the meaning given by subsection (2),

• “local authority” means an authority in England and Wales which is a litter authority for the purposes of section 88 of the Environmental Protection Act 1990 (c. 43),

• “proper address” is to be read in accordance with section 160(4) and (5) of the Environmental Protection Act 1990,

• “public land” means land to which the public are entitled or permitted to have access with or without payment (including any street to which the public are so entitled or permitted),

• “statutory undertaker” has the meaning given by section 98(6) of the Environmental Protection Act 1990,

• “street” has the meaning given by section 48(1) of the New Roads and Street Works Act 1991 (c. 22).

Commencement Information

I50 S. 48 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(h)

I51 S. 48 in force at 31.3.2004 for E. for specified purposes by S.I. 2004/690, art. 4(1)(a)

49 Recovery of expenditure E+W

(1) A local authority may recover from the person on whom a graffiti removal notice was served expenditure reasonably incurred in exercise of the power under section 48(4).

(2) A local authority may not recover expenditure from a person under subsection (1) unless it has served on that person a notice which sets out the amount of, and details of, the expenditure which it proposes to recover.

(3) Section 160 of the Environmental Protection Act 1990 has effect in relation to notices under subsection (2) as if they were notices within subsection (2) of that section.

Commencement Information

I52 S. 49 in force at 31.3.2004 for E. for specified purposes by S.I. 2004/690, art. 4(1)(b)

I53 S. 49 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(i)

50 Guidance E+W

(1) The Secretary of State must issue guidance to local authorities in England for the purposes of sections 48 and 49.

(2) The National Assembly for Wales must issue guidance to local authorities in Wales for the purposes of sections 48 and 49.

(3) A local authority must have regard to any guidance issued to it under this section.

Commencement Information

I54 S. 50 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(j)

I55 S. 50 in force at 31.3.2004 for E. for specified purposes by S.I. 2004/690, art. 4(1)(c)

51 Appeals E+W

(1) A person on whom a graffiti removal notice is served may, within the period of 21 days beginning with the day on which it is served, appeal against the notice to a magistrates' court on any of the following grounds.

(2) They are—

(a) that the defacement is neither detrimental to the amenity of the area nor offensive,

(b) that there is a material defect or error in, or in connection with, the notice,

(c) that the notice should be served on another person.

(3) Where an appeal under subsection (1) is brought, the graffiti removal notice shall be of no effect pending the final determination or withdrawal of the appeal.

(4) On the determination of such an appeal, the magistrates' court must do one of the following—

(a) quash the notice,

(b) modify the notice,

(c) dismiss the appeal.

(5) Where the court modifies the notice or dismisses the appeal, it may extend the period specified in the notice.

(6) A person on whom a notice under section 49(2) is served may, within the period of 21 days beginning with the day on which it is served, appeal to a magistrates' court on the grounds that the expenditure which the authority is proposing to recover is excessive.

(7) On the determination of an appeal under subsection (6), the magistrates' court must do either of the following—

(a) confirm that the amount which the authority is proposing to recover is reasonable, or

(b) substitute a lower amount as the amount which the authority is entitled to recover.

Commencement Information

I56 S. 51 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(k)

I57 S. 51 in force at 31.3.2004 for E. for specified purposes by S.I. 2004/690, art. 4(1)(d)

52 Exemption from liability in relation to graffiti removal notices E+W

(1) None of the persons mentioned in subsection (2) is to have any liability to any person responsible for the relevant surface for damages or otherwise (whether at common law or otherwise) arising out of anything done or omitted to be done in the exercise or purported exercise of—

(a) the power under subsection (4) of section 48 (including as provided for in subsection (5) of that section), or

(b) the power under subsection (8) of that section.

(2) Those persons are—

(a) in the case of the power mentioned in subsection (1)(a)—

(i) the local authority and any employee of the authority, and

(ii) any person authorised by the authority under section 48(4) and the employer or any employee of that person, and

(b) in the case of the power mentioned in subsection (1)(b), the local authority and any employee of the authority.

(3) Subsection (1) does not apply—

(a) if the act or omission is shown to have been in bad faith;

(b) to liability arising out of a failure to exercise due care and attention;

(c) so as to prevent an award of damages made in respect of an act or omission on the ground that the act or omission was unlawful by virtue of section 6(1) of the Human Rights Act 1998 (c. 42).

(4) This section does not affect any other exemption from liability (whether at common law or otherwise).

(5) Section 48(11) is to apply for the purposes of this section as it applies for the purposes of that section.

Commencement Information

I58 S. 52 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(l)

I59 S. 52 in force at 31.3.2004 for E. for specified purposes by S.I. 2004/690, art. 4(1)(e)

Advertisements E+W

53 Display of advertisements in contravention of regulations E+W

In section 224(3) of the Town and Country Planning Act 1990 (c. 8) (offence of displaying advertisement in contravention of regulations) for “level 3”, in both places where it occurs, substitute “ level 4 ”.

Commencement Information

I60 S. 53 in force at 20.1.2004 by S.I. 2003/3300, art. 2(d)

Aerosol paints E+W

54 Sale of aerosol paint to children E+W

(1) A person commits an offence if he sells an aerosol paint container to a person under the age of sixteen.

(2) In subsection (1) “aerosol paint container” means a device which—

(a) contains paint stored under pressure, and

(b) is designed to permit the release of the paint as a spray.

(3) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 4 on the standard scale.

(4) It is a defence for a person charged with an offence under this section in respect of a sale to prove that—

(a) he took all reasonable steps to determine the purchaser’s age, and

(b) he reasonably believed that the purchaser was not under the age of sixteen.

(5) It is a defence for a person charged with an offence under this section in respect of a sale effected by another person to prove that he (the defendant) took all reasonable steps to avoid the commission of an offence under this section.

Commencement Information

I61 S. 54 in force at 31.3.2004 by S.I. 2004/690, art. 2(a)(ii)

Waste and litter E+W

55 Unlawfully deposited waste etc E+W

(1) The Control of Pollution (Amendment) Act 1989 (c. 14) is amended in accordance with subsections (2) and (3).

(2) In subsection (1) of section 7 (further enforcement provisions) for “relevant authority” substitute “ waste regulation authority ”.

(3) After subsection (1) of section 9 (interpretation) insert—

“(1A) In sections 5 to 7 above “regulation authority” also means a waste collection authority falling within section 30(3)(a), (b) or (bb) of the Environmental Protection Act 1990.”

(4) After section 59 of the Environmental Protection Act 1990 (c. 43) insert—

“59A Directions in relation to exercise of powers under section 59

(1) The Secretary of State may issue directions setting out categories of waste to which a waste regulation authority or waste collection authority in England and Wales should give priority for the purposes of exercising its powers under section 59 above.

(2) Priorities set out in directions under subsection (1) above may be different for different authorities or areas.

(3) But nothing in this section or in any directions issued under it affects any power of an authority under section 59 above.”

(5) In section 71 of the Environmental Protection Act 1990 (c. 43) (obtaining information from persons and authorities), after subsection (3) insert—

“(4) The Secretary of State may, by notice in writing, require a waste regulation authority or waste collection authority in England and Wales to supply to him, or to such other person as may be specified in the notice, such information as may be so specified in respect of—

(a) cases where the authority has exercised any powers under section 59 above, and

(b) cases where the authority has taken action under any other enactment in respect of any deposit or other disposal of controlled waste in contravention of section 33(1) above.”

(6) Subsection (15) of section 108 of the Environment Act 1995 (c. 25) (powers of enforcing authorities and persons authorised by them) is amended in accordance with subsections (7) to (9).

(7) In the definition of “enforcing authority” after paragraph (b) insert—

“(ba) a waste collection authority;”.

(8) After the definition of “pollution control functions” in relation to the Agency or SEPA insert—

• ““pollution control functions”, in relation to a waste collection authority, means the functions conferred on it by section 59 of the Environmental Protection Act 1990;”.

(9) After the definition of “premises” insert—

““waste collection authority” shall be construed in accordance with section 30(3)(a), (b) and (bb) of the Environmental Protection Act 1990.”

(10) The reference to the Environmental Protection Act 1990 in Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/ 672) is to be treated as referring to that Act as amended by this section.

Commencement Information

I62 S. 55 in force at 31.3.2004 for E. by S.I. 2004/690, art. 3(h)

I63 S. 55 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(m)

56 Extension of litter authority powers to take remedial action E+W

(1) For section 92(10) of the Environmental Protection Act 1990 (restriction on remedial action by litter authorities) substitute—

“(10) Subsection (9) above does not apply in relation to any land to which subsection (11) or (12) below applies.

(11) This subsection applies to any relevant Crown land which is occupied for naval, military or air force purposes.

(12) This subsection applies to any relevant land of a statutory undertaker in relation to which the Secretary of State has specified, by order, that it is requisite or expedient that, in the national interest, subsection (9) above should not apply.”

(2) The reference to the Environmental Protection Act 1990 (c. 43) in Schedule 1 to the National Assembly for Wales (Transfer of Functions) Order 1999 (S.I. 1999/ 672) is to be treated as referring to that Act as amended by this section.

Commencement Information

I64 S. 56 in force at 31.3.2004 for E. by S.I. 2004/690, art. 3(i)

I65 S. 56 in force at 31.3.2004 for W. by S.I. 2004/999, art. 2(n)

Part 7 E+W Public order and trespass

57 Public assemblies E+W

In section 16 of the Public Order Act 1986 (c. 64) (which defines “public assembly” for the purposes of the power in section 14 of that Act to impose conditions on public assemblies), in the definition of “public assembly” for “20” substitute “ 2 ”.

Commencement Information

I66 S. 57 in force at 20.1.2004 by S.I. 2003/3300, art. 2(e)(i)

58 Raves E+W

(1) Section 63 of the Criminal Justice and Public Order Act 1994 (c. 33) (powers in relation to raves) is amended as follows.

(2) In subsection (1) for “100” substitute “ 20 ”.

(3) After subsection (1) insert—

“(1A) This section also applies to a gathering if—

(a) it is a gathering on land of 20 or more persons who are trespassing on the land; and

(b) it would be a gathering of a kind mentioned in subsection (1) above if it took place on land in the open air.”

(4) In subsection (2) omit “in the open air”.

(5) In subsection (7) for “this section” substitute “ subsection (6) above ”.

(6) After subsection (7) insert—

“(7A) A person commits an offence if—

(a) he knows that a direction under subsection (2) above has been given which applies to him, and

(b) he makes preparations for or attends a gathering to which this section applies within the period of 24 hours starting when the direction was given.

(7B) A person guilty of an offence under subsection (7A) above is liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 4 on the standard scale, or both.”

Commencement Information

I67 S. 58 in force at 20.1.2004 by S.I. 2003/3300, art. 2(e)(ii)

59 Aggravated trespass E+W

(1) The Criminal Justice and Public Order Act 1994 is amended as follows.

(2) In section 68 (offence of aggravated trespass), in subsection (1) (which defines the offence by reference to trespass on land in the open air and lawful activity on land in the open air) omit “in the open air” in both places where those words appear.

(3) In section 69 (powers to remove persons committing or participating in aggravated trespass), in subsection (1) (which confers the power by reference to trespass on land in the open air) omit “in the open air” in both places where those words appear.

Commencement Information

I68 S. 59 in force at 20.1.2004 by S.I. 2003/3300, art. 2(e)(iii)

60 Power to remove trespassers: alternative site available E+W

After section 62 of the Criminal Justice and Public Order Act 1994 (c. 33) insert—

“62A Power to remove trespassers: alternative site available

(1) If the senior police officer present at a scene reasonably believes that the conditions in subsection (2) are satisfied in relation to a person and land, he may direct the person—

(a) to leave the land;

(b) to remove any vehicle and other property he has with him on the land.

(2) The conditions are—

(a) that the person and one or more others (“the trespassers”) are trespassing on the land;

(b) that the trespassers have between them at least one vehicle on the land;

(c) that the trespassers are present on the land with the common purpose of residing there for any period;

(d) if it appears to the officer that the person has one or more caravans in his possession or under his control on the land, that there is a suitable pitch on a relevant caravan site for that caravan or each of those caravans;

(e) that the occupier of the land or a person acting on his behalf has asked the police to remove the trespassers from the land.

(3) A direction under subsection (1) may be communicated to the person to whom it applies by any constable at the scene.

(4) Subsection (5) applies if—

(a) a police officer proposes to give a direction under subsection (1) in relation to a person and land, and

(b) it appears to him that the person has one or more caravans in his possession or under his control on the land.

(5) The officer must consult every local authority within whose area the land is situated as to whether there is a suitable pitch for the caravan or each of the caravans on a relevant caravan site which is situated in the local authority’s area.

(6) In this section—

• “caravan” and “caravan site” have the same meanings as in Part 1 of the Caravan Sites and Control of Development Act 1960;

• “relevant caravan site” means a caravan site which is—

  (a)

  situated in the area of a local authority within whose area the land is situated, and

  (b)

  managed by a relevant site manager;

• “relevant site manager” means—

  (a)

  a local authority within whose area the land is situated;

  (b)

  a registered social landlord;

• “registered social landlord” means a body registered as a social landlord under Chapter 1 of Part 1 of the Housing Act 1996.

(7) The Secretary of State may by order amend the definition of “relevant site manager” in subsection (6) by adding a person or description of person.

(8) An order under subsection (7) must be made by statutory instrument and is subject to annulment in pursuance of a resolution of either House of Parliament.”

Commencement Information

I69 S. 60 in force at 27.2.2004 by S.I. 2003/3300, art. 3(b)

61 Failure to comply with direction: offences E+W

After section 62A of the Criminal Justice and Public Order Act 1994 (c. 33) (inserted by section 60) insert—

“62B Failure to comply with direction under section 62A: offences

(1) A person commits an offence if he knows that a direction under section 62A(1) has been given which applies to him and—

(a) he fails to leave the relevant land as soon as reasonably practicable,or

(b) he enters any land in the area of the relevant local authority as a trespasser before the end of the relevant period with the intention of residing there.

(2) The relevant period is the period of 3 months starting with the day on which the direction is given.

(3) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 3 months or a fine not exceeding level 4 on the standard scale or both.

(4) A constable in uniform who reasonably suspects that a person is committing an offence under this section may arrest him without a warrant.

(5) In proceedings for an offence under this section it is a defence for the accused to show—

(a) that he was not trespassing on the land in respect of which he is alleged to have committed the offence, or

(b) that he had a reasonable excuse—

(i) for failing to leave the relevant land as soon as reasonably practicable, or

(ii) for entering land in the area of the relevant local authority as a trespasser with the intention of residing there, or

(c) that, at the time the direction was given, he was under the age of 18 years and was residing with his parent or guardian.”

Commencement Information

I70 S. 61 in force at 27.2.2004 by S.I. 2003/3300, art. 3(b)

62 Failure to comply with direction: seizure E+W

(1) After section 62B of the Criminal Justice and Public Order Act 1994 (inserted by section 61) insert—

“62C Failure to comply with direction under section 62A: seizure

(1) This section applies if a direction has been given under section 62A(1) and a constable reasonably suspects that a person to whom the direction applies has, without reasonable excuse—

(a) failed to remove any vehicle on the relevant land which appears to the constable to belong to him or to be in his possession or under his control; or

(b) entered any land in the area of the relevant local authority as a trespasser with a vehicle before the end of the relevant period with the intention of residing there.

(2) The relevant period is the period of 3 months starting with the day on which the direction is given.

(3) The constable may seize and remove the vehicle.”

(2) In section 67(1) (retention and charges for seized vehicles) after “section 62(1)” insert “ , 62C(3) ”.

Commencement Information

I71 S. 62 in force at 27.2.2004 by S.I. 2003/3300, art. 3(b)

63 Common land: modifications E+W

After section 62C of the Criminal Justice and Public Order Act 1994 (c. 33) (inserted by section 62) insert—

“62D Common land: modifications

(1) In their application to common land sections 62A to 62C have effect with these modifications.

(2) References to trespassing and trespassers have effect as if they were references to acts, and persons doing acts, which constitute—

(a) a trespass as against the occupier, or

(b) an infringement of the commoners' rights.

(3) References to the occupier—

(a) in the case of land to which the public has access, include the local authority and any commoner;

(b) in any other case, include the commoners or any of them.

(4) Subsection (1) does not—

(a) require action by more than one occupier, or

(b) constitute persons trespassers as against any commoner or the local authority if they are permitted to be there by the other occupier.

(5) In this section “common land”, “commoner” and “the local authority” have the meanings given by section 61.”

Commencement Information

I72 S. 63 in force at 27.2.2004 by S.I. 2003/3300, art. 3(b)

64 Interpretation E+W

After section 62D of the Criminal Justice and Public Order Act 1994 (inserted by section 63) insert—

“62E Sections 62A to 62D: interpretation

(1) Subsections (2) to (8) apply for the interpretation of sections 62A to 62D and this section.

(2) “Land” does not include buildings other than—

(a) agricultural buildings within the meaning of paragraphs 3 to 8 of Schedule 5 to the Local Government Finance Act 1988, or

(b) scheduled monuments within the meaning of the Ancient Monuments and Archaeological Areas Act 1979.

(3) “Local authority” means—

(a) in Greater London, a London borough or the Common Council of the City of London;

(b) in England outside Greater London, a county council, a district council or the Council of the Isles of Scilly;

(c) in Wales, a county council or a county borough council.

(4) “Occupier”, “trespass”, “trespassing” and “trespasser” have the meanings given by section 61 in relation to England and Wales.

(5) “The relevant land” means the land in respect of which a direction under section 62A(1) is given.

(6) “The relevant local authority” means—

(a) if the relevant land is situated in the area of more than one local authority (but is not in the Isles of Scilly), the district council or county borough council within whose area the relevant land is situated;

(b) if the relevant land is situated in the Isles of Scilly, the Council of the Isles of Scilly;

(c) in any other case, the local authority within whose area the relevant land is situated.

(7) “Vehicle” has the meaning given by section 61.

(8) A person may be regarded as having a purpose of residing in a place even if he has a home elsewhere.”

Commencement Information

I73 S. 64 in force at 27.2.2004 by S.I. 2003/3300, art. 3(b)

Valid from 01/10/2004

Part 8 E+W High hedges

Valid from 31/12/2004

Introductory E+W

65 Complaints to which this Part applies E+W

(1) This Part applies to a complaint which—

(a) is made for the purposes of this Part by an owner or occupier of a domestic property; and

(b) alleges that his reasonable enjoyment of that property is being adversely affected by the height of a high hedge situated on land owned or occupied by another person.

(2) This Part also applies to a complaint which—

(a) is made for the purposes of this Part by an owner of a domestic property that is for the time being unoccupied, and

(b) alleges that the reasonable enjoyment of that property by a prospective occupier of that property would be adversely affected by the height of a high hedge situated on land owned or occupied by another person,

as it applies to a complaint falling within subsection (1).

(3) In relation to a complaint falling within subsection (2), references in sections 68 and 69 to the effect of the height of a high hedge on the complainant’s reasonable enjoyment of a domestic property shall be read as references to the effect that it would have on the reasonable enjoyment of that property by a prospective occupier of the property.

(4) This Part does not apply to complaints about the effect of the roots of a high hedge.

(5) In this Part, in relation to a complaint —

• “complainant” means—

  (a)

  a person by whom the complaint is made; or

  (b)

  if every person who made the complaint ceases to be an owner or occupier of the domestic property specified in the complaint, any other person who is for the time being an owner or occupier of that property;

  and references to the complainant include references to one or more of the complainants;

• “the neighbouring land” means the land on which the high hedge is situated; and

• “the relevant authority” means the local authority in whose area that land is situated.

66 High hedges E+W

(1) In this Part “high hedge” means so much of a barrier to light or access as—

(a) is formed wholly or predominantly by a line of two or more evergreens; and

(b) rises to a height of more than two metres above ground level.

(2) For the purposes of subsection (1) a line of evergreens is not to be regarded as forming a barrier to light or access if the existence of gaps significantly affects its overall effect as such a barrier at heights of more than two metres above ground level.

(3) In this section “evergreen” means an evergreen tree or shrub or a semi-evergreen tree or shrub.

67 Domestic property E+W

(1) In this Part “domestic property” means—

(a) a dwelling; or

(b) a garden or yard which is used and enjoyed wholly or mainly in connection with a dwelling.

(2) In subsection (1) “dwelling” means any building or part of a building occupied, or intended to be occupied, as a separate dwelling.

(3) A reference in this Part to a person’s reasonable enjoyment of domestic property includes a reference to his reasonable enjoyment of a part of the property.

Valid from 31/12/2004

Complaints procedure E+W

68 Procedure for dealing with complaints E+W

(1) This section has effect where a complaint to which this Part applies—

(a) is made to the relevant authority; and

(b) is accompanied by such fee (if any) as the authority may determine.

(2) If the authority consider—

(a) that the complainant has not taken all reasonable steps to resolve the matters complained of without proceeding by way of such a complaint to the authority, or

(b) that the complaint is frivolous or vexatious,

the authority may decide that the complaint should not be proceeded with.

(3) If the authority do not so decide, they must decide—

(a) whether the height of the high hedge specified in the complaint is adversely affecting the complainant’s reasonable enjoyment of the domestic property so specified; and

(b) if so, what action (if any) should be taken in relation to that hedge, in pursuance of a remedial notice under section 69, with a view to remedying the adverse effect or preventing its recurrence.

(4) If the authority decide under subsection (3) that action should be taken as mentioned in paragraph (b) of that subsection, they must as soon as is reasonably practicable—

(a) issue a remedial notice under section 69 implementing their decision;

(b) send a copy of that notice to the following persons, namely—

(i) every complainant; and

(ii) every owner and every occupier of the neighbouring land; and

(c) notify each of those persons of the reasons for their decision.

(5) If the authority—

(a) decide that the complaint should not be proceeded with, or

(b) decide either or both of the issues specified in subsection (3) otherwise than in the complainant’s favour,

they must as soon as is reasonably practicable notify the appropriate person or persons of any such decision and of their reasons for it.

(6) For the purposes of subsection (5)—

(a) every complainant is an appropriate person in relation to a decision falling within paragraph (a) or (b) of that subsection; and

(b) every owner and every occupier of the neighbouring land is an appropriate person in relation to a decision falling within paragraph (b) of that subsection.

(7) A fee determined under subsection (1)(b) must not exceed the amount prescribed in regulations made—

(a) in relation to complaints relating to hedges situated in England, by the Secretary of State; and

(b) in relation to complaints relating to hedges situated in Wales, by the National Assembly for Wales.

(8) A fee received by a local authority by virtue of subsection (1)(b) may be refunded by them in such circumstances and to such extent as they may determine.

69 Remedial notices E+W

(1) For the purposes of this Part a remedial notice is a notice—

(a) issued by the relevant authority in respect of a complaint to which this Part applies; and

(b) stating the matters mentioned in subsection (2).

(2) Those matters are—

(a) that a complaint has been made to the authority under this Part about a high hedge specified in the notice which is situated on land so specified;

(b) that the authority have decided that the height of that hedge is adversely affecting the complainant’s reasonable enjoyment of the domestic property specified in the notice;

(c) the initial action that must be taken in relation to that hedge before the end of the compliance period;

(d) any preventative action that they consider must be taken in relation to that hedge at times following the end of that period while the hedge remains on the land; and

(e) the consequences under sections 75 and 77 of a failure to comply with the notice.

(3) The action specified in a remedial notice is not to require or involve—

(a) a reduction in the height of the hedge to less than two metres above ground level; or

(b) the removal of the hedge.

(4) A remedial notice shall take effect on its operative date.

(5) “The operative date” of a remedial notice is such date (falling at least 28 days after that on which the notice is issued) as is specified in the notice as the date on which it is to take effect.

(6) “The compliance period” in the case of a remedial notice is such reasonable period as is specified in the notice for the purposes of subsection (2)(c) as the period within which the action so specified is to be taken; and that period shall begin with the operative date of the notice.

(7) Subsections (4) to (6) have effect in relation to a remedial notice subject to—

(a) the exercise of any power of the relevant authority under section 70; and

(b) the operation of sections 71 to 73 in relation to the notice.

(8) While a remedial notice has effect, the notice—

(a) shall be a local land charge; and

(b) shall be binding on every person who is for the time being an owner or occupier of the land specified in the notice as the land where the hedge in question is situated.

(9) In this Part—

• “initial action” means remedial action or preventative action, or both;

• “remedial action” means action to remedy the adverse effect of the height of the hedge on the complainant’s reasonable enjoyment of the domestic property in respect of which the complaint was made; and

• “preventative action” means action to prevent the recurrence of the adverse effect.

70 Withdrawal or relaxation of requirements of remedial notices E+W

(1) The relevant authority may—

(a) withdraw a remedial notice issued by them; or

(b) waive or relax a requirement of a remedial notice so issued.

(2) The powers conferred by this section are exercisable both before and after a remedial notice has taken effect.

(3) Where the relevant authority exercise the powers conferred by this section, they must give notice of what they have done to—

(a) every complainant; and

(b) every owner and every occupier of the neighbouring land.

(4) The withdrawal of a remedial notice does not affect the power of the relevant authority to issue a further remedial notice in respect of the same hedge.

Appeals E+W

71 Appeals against remedial notices and other decisions of relevant authorities E+W

(1) Where the relevant authority—

(a) issue a remedial notice,

(b) withdraw such a notice, or

(c) waive or relax the requirements of such a notice,

each of the persons falling within subsection (2) may appeal to the appeal authority against the issue or withdrawal of the notice or (as the case may be) the waiver or relaxation of its requirements.

(2) Those persons are—

(a) every person who is a complainant in relation to the complaint by reference to which the notice was given; and

(b) every person who is an owner or occupier of the neighbouring land.

(3) Where the relevant authority decide either or both of the issues specified in section 68(3) otherwise than in the complainant’s favour, the complainant may appeal to the appeal authority against the decision.

(4) An appeal under this section must be made before—

(a) the end of the period of 28 days beginning with the relevant date; or

(b) such later time as the appeal authority may allow.

(5) In subsection (4) “the relevant date”—

(a) in the case of an appeal against the issue of a remedial notice, means the date on which the notice was issued; and

(b) in the case of any other appeal under this section, means the date of the notification given by the relevant authority under section 68 or 70 of the decision in question.

(6) Where an appeal is duly made under subsection (1), the notice or (as the case may be) withdrawal, waiver or relaxation in question shall not have effect pending the final determination or withdrawal of the appeal.

(7) In this Part “the appeal authority” means—

(a) in relation to appeals relating to hedges situated in England, the Secretary of State; and

(b) in relation to appeals relating to hedges situated in Wales, the National Assembly for Wales.

72 Appeals procedure E+W

(1) The appeal authority may by regulations make provision with respect to—

(a) the procedure which is to be followed in connection with appeals to that authority under section 71; and

(b) other matters consequential on or connected with such appeals.

(2) Regulations under this section may, in particular, make provision—

(a) specifying the grounds on which appeals may be made;

(b) prescribing the manner in which appeals are to be made;

(c) requiring persons making appeals to send copies of such documents as may be prescribed to such persons as may be prescribed;

(d) requiring local authorities against whose decisions appeals are made to send to the appeal authority such documents as may be prescribed;

(e) specifying, where a local authority are required by virtue of paragraph (d) to send the appeal authority a statement indicating the submissions which they propose to put forward on the appeal, the matters to be included in such a statement;

(f) prescribing the period within which a requirement imposed by the regulations is to be complied with;

(g) enabling such a period to be extended by the appeal authority;

(h) for a decision on an appeal to be binding on persons falling within section 71(2) in addition to the person by whom the appeal was made;

(i) for incidental or ancillary matters, including the awarding of costs.

(3) Where an appeal is made to the appeal authority under section 71 the appeal authority may appoint a person to hear and determine the appeal on its behalf.

(4) The appeal authority may require such a person to exercise on its behalf any functions which—

(a) are conferred on the appeal authority in connection with such an appeal by section 71 or 73 or by regulations under this section; and

(b) are specified in that person’s appointment;

and references to the appeal authority in section 71 or 73 or in any regulations under this section shall be construed accordingly.

(5) The appeal authority may pay a person appointed under subsection (3) such remuneration as it may determine.

(6) Regulations under this section may provide for any provision of Schedule 20 to the Environment Act 1995 (c. 25) (delegation of appellate functions) to apply in relation to a person appointed under subsection (3) with such modifications (if any) as may be prescribed.

(7) In this section, “prescribed” means prescribed by regulations made by the appeal authority.

Valid from 31/12/2004

73 Determination or withdrawal of appeals E+W

(1) On an appeal under section 71 the appeal authority may allow or dismiss the appeal, either in whole or in part.

(2) Where the appeal authority decides to allow such an appeal to any extent, it may do such of the following as it considers appropriate—

(a) quash a remedial notice or decision to which the appeal relates;

(b) vary the requirements of such a notice; or

(c) in a case where no remedial notice has been issued, issue on behalf of the relevant authority a remedial notice that could have been issued by the relevant authority on the complaint in question.

(3) On an appeal under section 71 relating to a remedial notice, the appeal authority may also correct any defect, error or misdescription in the notice if it is satisfied that the correction will not cause injustice to any person falling within section 71(2).

(4) Once the appeal authority has made its decision on an appeal under section 71, it must, as soon as is reasonably practicable—

(a) give a notification of the decision, and

(b) if the decision is to issue a remedial notice or to vary or correct the requirements of such a notice, send copies of the notice as issued, varied or corrected,

to every person falling within section 71(2) and to the relevant authority.

(5) Where, in consequence of the appeal authority’s decision on an appeal, a remedial notice is upheld or varied or corrected, the operative date of the notice shall be—

(a) the date of the appeal authority’s decision; or

(b) such later date as may be specified in its decision.

(6) Where the person making an appeal under section 71 against a remedial notice withdraws his appeal, the operative date of the notice shall be the date on which the appeal is withdrawn.

(7) In any case falling within subsection (5) or (6), the compliance period for the notice shall accordingly run from the date which is its operative date by virtue of that subsection (and any period which may have started to run from a date preceding that on which the appeal was made shall accordingly be disregarded).

Valid from 31/12/2004

Powers of entry E+W

74 Powers of entry for the purposes of complaints and appeals E+W

(1) Where, under this Part, a complaint has been made or a remedial notice has been issued, a person authorised by the relevant authority may enter the neighbouring land in order to obtain information required by the relevant authority for the purpose of determining—

(a) whether this Part applies to the complaint;

(b) whether to issue or withdraw a remedial notice;

(c) whether to waive or relax a requirement of a remedial notice;

(d) whether a requirement of a remedial notice has been complied with.

(2) Where an appeal has been made under section 71, a person authorised—

(a) by the appeal authority, or

(b) by a person appointed to determine appeals on its behalf,

may enter the neighbouring land in order to obtain information required by the appeal authority, or by the person so appointed, for the purpose of determining an appeal under this Part.

(3) A person shall not enter land in the exercise of a power conferred by this section unless at least 24 hours' notice of the intended entry has been given to every occupier of the land.

(4) A person authorised under this section to enter land—

(a) shall, if so required, produce evidence of his authority before entering; and

(b) shall produce such evidence if required to do so at any time while he remains on the land.

(5) A person who enters land in the exercise of a power conferred by this section may—

(a) take with him such other persons as may be necessary;

(b) take with him equipment and materials needed in order to obtain the information required;

(c) take samples of any trees or shrubs that appear to him to form part of a high hedge.

(6) If, in the exercise of a power conferred by this section, a person enters land which is unoccupied or from which all of the persons occupying the land are temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry as he found it.

(7) A person who intentionally obstructs a person acting in the exercise of the powers under this section is guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

Valid from 31/12/2004

Enforcement powers etc. E+W

75 Offences E+W

(1) Where—

(a) a remedial notice requires the taking of any action, and

(b) that action is not taken in accordance with that notice within the compliance period or (as the case may be) by the subsequent time by which it is required to be taken,

every person who, at a relevant time, is an owner or occupier of the neighbouring land is guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(2) In subsection (1) “relevant time”—

(a) in relation to action required to be taken before the end of the compliance period, means a time after the end of that period and before the action is taken; and

(b) in relation to any preventative action which is required to be taken after the end of that period, means a time after that at which the action is required to be taken but before it is taken.

(3) In proceedings against a person for an offence under subsection (1) it shall be a defence for him to show that he did everything he could be expected to do to secure compliance with the notice.

(4) In any such proceedings against a person, it shall also be a defence for him to show, in a case in which he—

(a) is not a person to whom a copy of the remedial notice was sent in accordance with a provision of this Part, and

(b) is not assumed under subsection (5) to have had knowledge of the notice at the time of the alleged offence,

that he was not aware of the existence of the notice at that time.

(5) A person shall be assumed to have had knowledge of a remedial notice at any time if at that time—

(a) he was an owner of the neighbouring land; and

(b) the notice was at that time registered as a local land charge.

(6) Section 198 of the Law of Property Act 1925 (c. 20) (constructive notice) shall be disregarded for the purposes of this section.

(7) Where a person is convicted of an offence under subsection (1) and it appears to the court—

(a) that a failure to comply with the remedial notice is continuing, and

(b) that it is within that person’s power to secure compliance with the notice,

the court may, in addition to or instead of imposing a punishment, order him to take the steps specified in the order for securing compliance with the notice.

(8) An order under subsection (7) must require those steps to be taken within such reasonable period as may be fixed by the order.

(9) Where a person fails without reasonable excuse to comply with an order under subsection (7) he is guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(10) Where a person continues after conviction of an offence under subsection (9) (or of an offence under this subsection) to fail, without reasonable excuse, to take steps which he has been ordered to take under subsection (7), he is guilty of a further offence and shall be liable, on summary conviction, to a fine not exceeding one-twentieth of that level for each day on which the failure has so continued.

76 Power to require occupier to permit action to be taken by owner E+W

Section 289 of the Public Health Act 1936 (c. 49) (power of court to require occupier to permit work to be done by owner) shall apply with any necessary modifications for the purpose of giving an owner of land to which a remedial notice relates the right, as against all other persons interested in the land, to comply with the notice.

77 Action by relevant authority E+W

(1) This section applies where—

(a) a remedial notice requires the taking of any action; and

(b) that action is not taken in accordance with that notice within the compliance period or (as the case may be) after the end of that period when it is required to be taken by the notice.

(2) Where this section applies—

(a) a person authorised by the relevant authority may enter the neighbouring land and take the required action; and

(b) the relevant authority may recover any expenses reasonably incurred by that person in doing so from any person who is an owner or occupier of the land.

(3) Expenses recoverable under this section shall be a local land charge and binding on successive owners of the land and on successive occupiers of it.

(4) Where expenses are recoverable under this section from two or more persons, those persons shall be jointly and severally liable for the expenses.

(5) A person shall not enter land in the exercise of a power conferred by this section unless at least 7 days' notice of the intended entry has been given to every occupier of the land.

(6) A person authorised under this section to enter land—

(a) shall, if so required, produce evidence of his authority before entering; and

(b) shall produce such evidence if required to do so at any time while he remains on the land.

(7) A person who enters land in the exercise of a power conferred by this section may—

(a) use a vehicle to enter the land;

(b) take with him such other persons as may be necessary;

(c) take with him equipment and materials needed for the purpose of taking the required action.

(8) If, in the exercise of a power conferred by this section, a person enters land which is unoccupied or from which all of the persons occupying the land are temporarily absent, he must on his departure leave it as effectively secured against unauthorised entry as he found it.

(9) A person who wilfully obstructs a person acting in the exercise of powers under this section to enter land and take action on that land is guilty of an offence and shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

78 Offences committed by bodies corporate E+W

(1) Where an offence under this Part committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) a director, manager, secretary or other similar officer of the body corporate, or

(b) any person who was purporting to act in any such capacity,

he, as well as the body corporate, shall be guilty of that offence and be liable to be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Valid from 31/12/2004

Supplementary E+W

79 Service of documents E+W

(1) A notification or other document required to be given or sent to a person by virtue of this Part shall be taken to be duly given or sent to him if served in accordance with the following provisions of this section.

(2) Such a document may be served—

(a) by delivering it to the person in question;

(b) by leaving it at his proper address; or

(c) by sending it by post to him at that address.

(3) Such a document may—

(a) in the case of a body corporate, be served on the secretary or clerk of that body;

(b) in the case of a partnership, be served on a partner or a person having the control or management of the partnership business.

(4) For the purposes of this section and of section 7 of the Interpretation Act 1978 (c. 30) (service of documents by post) in its application to this section, a person’s proper address shall be his last known address, except that—

(a) in the case of a body corporate or their secretary or clerk, it shall be the address of the registered or principal office of that body; and

(b) in the case of a partnership or person having the control or the management of the partnership business, it shall be the principal office of the partnership.

(5) For the purposes of subsection (4) the principal office of—

(a) a company registered outside the United Kingdom, or

(b) a partnership carrying on business outside the United Kingdom,

shall be their principal office within the United Kingdom.

(6) If a person has specified an address in the United Kingdom other than his proper address within the meaning of subsection (4) as the one at which he or someone on his behalf will accept documents of a particular description, that address shall also be treated for the purposes of this section and section 7 of the Interpretation Act 1978 as his proper address in connection with the service on him of a document of that description.

(7) Where—

(a) by virtue of this Part a document is required to be given or sent to a person who is an owner or occupier of any land, and

(b) the name or address of that person cannot be ascertained after reasonable inquiry,

the document may be served either by leaving it in the hands of a person who is or appears to be resident or employed on the land or by leaving it conspicuously affixed to some building or object on the land.

80 Documents in electronic form E+W

(1) A requirement of this Part—

(a) to send a copy of a remedial notice to a person, or

(b) to notify a person under section 68(4) of the reasons for the issue of a remedial notice,

is not capable of being satisfied by transmitting the copy or notification electronically or by making it available on a web-site.

(2) The delivery of any other document to a person (the “recipient”) may be effected for the purposes of section 79(2)(a)—

(a) by transmitting it electronically, or

(b) by making it available on a web-site,

but only if it is transmitted or made available in accordance with subsection (3) or (5).

(3) A document is transmitted electronically in accordance with this subsection if—

(a) the recipient has agreed that documents may be delivered to him by being transmitted to an electronic address and in an electronic form specified by him for that purpose; and

(b) the document is a document to which that agreement applies and is transmitted to that address in that form.

(4) A document which is transmitted in accordance with subsection (3) by means of an electronic communications network shall, unless the contrary is proved, be treated as having been delivered at 9 a.m. on the working day immediately following the day on which it is transmitted.

(5) A document is made available on a web-site in accordance with this subsection if—

(a) the recipient has agreed that documents may be delivered to him by being made available on a web-site;

(b) the document is a document to which that agreement applies and is made available on a web-site;

(c) the recipient is notified, in a manner agreed by him, of—

(i) the presence of the document on the web-site;

(ii) the address of the web-site; and

(iii) the place on the web-site where the document may be accessed.

(6) A document made available on a web-site in accordance with subsection (5) shall, unless the contrary is proved, be treated as having been delivered at 9a.m. on the working day immediately following the day on which the recipient is notified in accordance with subsection (5)(c).

(7) In this section—

• “electronic address” includes any number or address used for the purposes of receiving electronic communications;

• “electronic communication” means an electronic communication within the meaning of the Electronic Communications Act 2000 (c. 7) the processing of which on receipt is intended to produce writing;

• “electronic communications network” means an electronic communications network within the meaning of the Communications Act 2003 (c. 21);

• “electronically” means in the form of an electronic communication;

• “working day” means a day which is not a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971 (c. 80).

81 Power to make further provision about documents in electronic form E+W

(1) Regulations may amend section 80 by modifying the circumstances in which, and the conditions subject to which, the delivery of a document for the purposes of section 79(2)(a) may be effected by—

(a) transmitting the document electronically; or

(b) making the document available on a web-site.

(2) Regulations may also amend section 80 by modifying the day on which and the time at which documents which are transmitted electronically or made available on a web-site in accordance with that section are to be treated as having been delivered.

(3) Regulations under this section may make such consequential amendments of this Part as the person making the regulations considers appropriate.

(4) The power to make such regulations shall be exercisable—

(a) in relation to documents relating to complaints about hedges situated in England, by the Secretary of State; and

(b) in relation to documents relating to complaints about hedges situated in Wales, by the National Assembly for Wales.

(5) In this section “electronically” has the meaning given in section 80.

82 Interpretation E+W

In this Part—

• “the appeal authority” has the meaning given by section 71(7);

• “complaint” shall be construed in accordance with section 65;

• “complainant” has the meaning given by section 65(5);

• “the compliance period” has the meaning given by section 69(6);

• “domestic property” has the meaning given by section 67;

• “high hedge” has the meaning given by section 66;

• “local authority”, in relation to England, means—

  (a)

  a district council;

  (b)

  a county council for a county in which there are no districts;

  (c)

  a London borough council; or

  (d)

  the Common Council of the City of London;

  and, in relation to Wales, means a county council or a county borough council;

• “the neighbouring land” has the meaning given by section 65(5);

• “occupier”, in relation to any land, means a person entitled to possession of the land by virtue of an estate or interest in it;

• “the operative date” shall be construed in accordance with sections 69(5) and 73(5) and (6);

• “owner”, in relation to any land, means a person (other than a mortgagee not in possession) who, whether in his own right or as trustee for any person—

  (a)

  is entitled to receive the rack rent of the land, or

  (b)

  where the land is not let at a rack rent, would be so entitled if it were so let;

• “preventative action” has the meaning given by section 69(9);

• “the relevant authority” has the meaning given by section 65(5);

• “remedial notice” shall be construed in accordance with section 69(1);

• “remedial action” has the meaning given by section 69(9).

83 Power to amend sections 65 and 66 E+W

(1) Regulations may do one or both of the following—

(a) amend section 65 for the purpose of extending the scope of complaints relating to high hedges to which this Part applies; and

(b) amend section 66 (definition of “high hedge”).

(2) The power to make such regulations shall be exercisable—

(a) in relation to complaints about hedges situated in England, by the Secretary of State; and

(b) in relation to complaints about hedges situated in Wales, by the National Assembly for Wales.

(3) Regulations under this section may make such consequential amendments of this Part as the person making the regulations considers appropriate.

84 Crown application E+W

(1) This Part and any provision made under it bind the Crown.

(2) This section does not impose criminal liability on the Crown.

(3) Subsection (2) does not affect the criminal liability of persons in the service of the Crown.

Part 9 E+W Miscellaneous powers

85 Anti-social behaviour orders E+W

(1) The Crime and Disorder Act 1998 (c. 37) is amended as follows.

(2) In section 1(1A) (authorities who may apply for anti-social behaviour orders)—

(a) after paragraph (a) there is inserted—

“(aa) in relation to England, a county council;”;

(b) after paragraph (c) “or” is omitted;

(c) after paragraph (d) there is inserted “or

(e) a housing action trust established by order in pursuance of section 62 of the Housing Act 1988.”

(3) In section 1(1B) (persons requiring protection from anti-social acts)—

(a) after paragraph (a) there is inserted—

“(aa) in relation to a relevant authority falling within paragraph (aa) of subsection (1A), persons within the county of the county council;”;

(b) in paragraph (d) after “paragraph (d)” there is inserted “ or (e) ”.

(4) In section 1 after subsection (10) (penalty for breach of anti-social behaviour order) there are inserted the following subsections—

“(10A) The following may bring proceedings for an offence under subsection (10)—

(a) a council which is a relevant authority;

(b) the council for the local government area in which a person in respect of whom an anti-social behaviour order has been made resides or appears to reside.

(10B) If proceedings for an offence under subsection (10) are brought in a youth court section 47(2) of the Children and Young Persons Act 1933 (c. 12) has effect as if the persons entitled to be present at a sitting for the purposes of those proceedings include one person authorised to be present by a relevant authority.”

(5) In section 1B (anti-social behaviour orders in county court proceedings) after subsection (3) there are inserted the following subsections—

“(3A) Subsection (3B) applies if a relevant authority is a party to the principal proceedings and considers—

(a) that a person who is not a party to the proceedings has acted in an anti-social manner, and

(b) that the person’s anti-social acts are material in relation to the principal proceedings.

(3B) The relevant authority may—

(a) make an application for the person mentioned in subsection (3A)(a) to be joined to the principal proceedings to enable an order under subsection (4) to be made in relation to that person;

(b) if that person is so joined, apply for an order under subsection (4).

(3C) But a person must not be joined to proceedings in pursuance of subsection (3B) unless his anti-social acts are material in relation to the principal proceedings.”

(6) In section 1B(5) for “party to the principal proceedings” there is substituted “ person ”.

(7) In section 1E (consultation requirements) after subsection (4) there is inserted—

“(5) Subsection (4)(a) does not apply if the relevant authority is a county council for a county in which there are no districts.”

(8) In section 9 (which makes supplemental provision about parenting orders) after subsection (1A) there is inserted the following subsection—

“(1B) If an anti-social behaviour order is made in respect of a person under the age of 16 the court which makes the order—

(a) must make a parenting order if it is satisfied that the relevant condition is fulfilled;

(b) if it is not so satisfied, must state in open court that it is not and why it is not.”

(9) An order under section 93 below made in relation to subsection (5) above may make provision for that subsection to come into force—

(a) for such period as is specified in the order;

(b) on different days in respect of persons of different ages.

(10) Subsection (9) does not affect section 94(2) below.

(11) The making of an order as mentioned in subsection (9)(a) does not prevent the making of a further order under section 93 below—

(a) whether for the same or a different purpose, or

(b) in relation to the same area.

Commencement Information

I74 S. 85(9)-(11) in force at Royal Assent, see s. 93(1)

I75 S. 85(1)-(3) (7) in force at 20.1.2004 by S.I. 2003/3300, art. 2(f)(i)

I76 S. 85(4) in force at 20.1.2004 for specified purposes by S.I. 2003/3300, art. 2(f)(i)

I77 S. 85(4) in force at 31.3.2004 in so far as not already in force by S.I. 2004/690, art. 2(b)(i)

I78 S. 85(5)(6) in force at 31.3.2004 for specified purposes by S.I. 2004/690, art. 2(b)(ii)

I79 S. 85(8) in force at 27.2.2004 by S.I. 2003/3300, art. 3(c)

86 Certain orders made on conviction of offences E+W

(1) In section 1C of the Crime and Disorder Act 1998 (c. 37) (orders on conviction of an offence to prevent anti-social acts) in subsection (3) for the words from “whether or not” to the end there is substituted “—

(a) if the prosecutor asks it to do so, or

(b) if the court thinks it is appropriate to do so.”

(2) After subsection (3) of that section there are inserted the following subsections—

“(3A) For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence.

(3B) It is immaterial whether evidence led in pursuance of subsection (3A) would have been admissible in the proceedings in which the offender was convicted.”

(3) After subsection (9) of that section there are inserted the following subsections—

“(9A) The council for the local government area in which a person in respect of whom an anti-social behaviour order has been made resides or appears to reside may bring proceedings under section 1(10) (as applied by subsection (9) above) for breach of an order under subsection (2) above.

(9B) Subsection (9C) applies in relation to proceedings in which an order under subsection (2) is made against a child or young person who is convicted of an offence.

(9C) In so far as the proceedings relate to the making of the order—

(a) section 49 of the Children and Young Persons Act 1933 (c. 12) (restrictions on reports of proceedings in which children and young persons are concerned) does not apply in respect of the child or young person against whom the order is made;

(b) section 39 of that Act (power to prohibit publication of certain matter) does so apply.”

(4) In subsection (10) of that section before the entry relating to “the commencement date” there is inserted—

““child” and “young person” have the same meaning as in the Children and Young Persons Act 1933 (c. 12);”.

(5) In section 14A of the Football Spectators Act 1989 (c. 37) after subsection (3) there are inserted the following subsections—

“(3A) For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence.

(3B) It is immaterial whether evidence led in pursuance of subsection (3A) would have been admissible in the proceedings in which the offender was convicted.”

(6) In section 3(2) of the Prosecution of Offences Act 1985 (c. 23) (functions of the Director of Public Prosecutions) after paragraph (f) the word “and” is omitted and there is inserted the following paragraph—

“(fa) to have the conduct of applications for orders under section 1C of the Crime and Disorder Act 1998 (orders made on conviction of certain offences) and section 14A of the Football Spectators Act 1989 (banning orders made on conviction of certain offences);”.

Commencement Information

I80 S. 86(1)(2) in force at 31.3.2004 by S.I. 2004/690, art. 2(b)(iii)

I81 S. 86(3) in force at 20.1.2004 for specified purposes by S.I. 2003/3300, art. 2(f)(i)

I82 S. 86(3) in force at 31.3.2004 in so far as not already in force by S.I. 2004/690, art. 2(b)(iii)

I83 S. 86(4)-(6) in force at 20.1.2004 by S.I. 2003/3300, art. 2(f)(ii)

87 Penalty notices for disorderly behaviour by young persons E+W

(1) The Criminal Justice and Police Act 2001 (c. 16) is amended as follows.

(2) In section 2(1) (penalty notices for disorderly behaviour by persons aged 18 or over) for “18” substitute “ 16 ”.

(3) After section 2(5) insert—

“(6) The Secretary of State may by order—

(a) amend subsection (1) by substituting for the age for the time being specified in that subsection a different age which is not lower than 10, and

(b) if that different age is lower than 16, make provision as follows—

(i) where a person whose age is lower than 16 is given a penalty notice, for a parent or guardian of that person to be notified of the giving of the notice, and

(ii) for that parent or guardian to be liable to pay the penalty under the notice.

(7) The provision which may be made by virtue of subsection (6)(b) includes provision amending, or applying (with or without modifications), this Chapter or any other enactment (whenever passed or made).

(8) The power conferred by subsection (6) is exercisable by statutory instrument.

(9) No order shall be made under subsection (6) unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.”

(4) After section 3(1) (amount of penalty) insert—

“(1A) The Secretary of State may specify different amounts for persons of different ages.”

Commencement Information

I84 S. 87 in force at 20.1.2004 by S.I. 2003/3300, art. 2(f)(iii)

Valid from 30/09/2004

88 Curfew orders and supervision orders E+W

Schedule 2 (which relates to curfew orders and supervision orders under the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)) shall have effect.

89 Extension of powers of community support officers etc. E+W

(1) The Police Reform Act 2002 (c. 30) is amended as follows.

(2) In section 105 (powers of Secretary of State to make orders and regulations) in subsection (3)(b) after “99(6)” insert “ or paragraph 15A(2) of Schedule 4 or paragraph 9A(2) of Schedule 5 ”.

(3) In Part 1 of Schedule 4 (powers exercisable by community support officers) after paragraph 11 insert—

“Power to stop cycles

11A (1) Subject to sub-paragraph (2), where a designation applies this paragraph to any person, that person shall, within the relevant police area, have the power of a constable in uniform under section 163(2) of the Road Traffic Act 1988 to stop a cycle.

(2) The power mentioned in sub-paragraph (1) may only be exercised by that person in relation to a person who he has reason to believe has committed an offence under section 72 of the Highway Act 1835 (riding on a footway) by cycling.”

(4) In Part 1 of that Schedule, after paragraph 15 insert—

“Power to modify paragraph 1(2)(a)

15A (1) The Secretary of State may by order provide that paragraph 1(2)(a) is to have effect as if the reference to the powers there mentioned did not include those powers so far as they relate to an offence under any provision for the time being mentioned in the first column of the Table in section 1(1) of the Criminal Justice and Police Act 2001 which is specified in the order.

(2) The Secretary of State shall not make an order containing (with or without any other provision) any provision authorised by this paragraph unless a draft of that order has been laid before Parliament and approved by a resolution of each House.”

(5) In paragraph 1(2) of Schedule 5 (powers of accredited persons to issue fixed penalty notices) after paragraph (a) insert—

“(aa) the powers of a constable in uniform to give a penalty notice under Chapter 1 of Part 1 of the Criminal Justice and Police Act 2001 (fixed penalty notices in respect of offences of disorder) except in respect of an offence under section 12 of the Licensing Act 1872 or section 91 of the Criminal Justice Act 1967;”.

(6) After paragraph 8 of that Schedule insert—

“Power to stop cycles

8A (1) Subject to sub-paragraph (2), a person whose accreditation specifies that this paragraph applies to him shall, within the relevant police area, have the power of a constable in uniform under section 163(2) of the Road Traffic Act 1988 to stop a cycle.

(2) The power mentioned in sub-paragraph (1) may only be exercised by that person in relation to a person who he has reason to believe has committed an offence under section 72 of the Highway Act 1835 (riding on a footway) by cycling.”

(7) After paragraph 9 of that Schedule insert—

“Power to modify paragraph 1(2)(aa)

9A (1) The Secretary of State may by order provide that paragraph 1(2)(aa) is to have effect as if the reference to the powers there mentioned did not include those powers so far as they relate to an offence under any provision for the time being mentioned in the first column of the Table in section 1(1) of the Criminal Justice and Police Act 2001 which is specified in the order.

(2) The Secretary of State shall not make an order containing (with or without any other provision) any provision authorised by this paragraph unless a draft of that order has been laid before Parliament and approved by a resolution of each House.”

Commencement Information

I85 S. 89(1)-(4) (6) (7) in force at 20.1.2004 by S.I. 2003/3300, art. 2(f)(iv)

I86 S. 89(5) in force at 31.3.2004 in so far as not already in force by S.I. 2004/690, art. 2(b)(iv)

Valid from 31/07/2004

90 Report by local authority in certain cases where person remanded on bail E+W

After section 23A of the Children and Young Persons Act 1969 (c. 54) there is inserted—

“23B Report by local authority in certain cases where person remanded on bail

(1) Subsection (2) below applies where a court remands a person aged 10 or 11 on bail and either—

(a) the person is charged with or has been convicted of a serious offence, or

(b) in the opinion of the court the person is a persistent offender.

(2) The court may order a local authority to make an oral or written report specifying where the person is likely to be placed or maintained if he is further remanded to local authority accommodation.

(3) An order under subsection (2) above must designate the local authority which is to make the report; and that authority must be the local authority which the court would have designated under section 23(2) of this Act if the person had been remanded to local authority accommodation.

(4) An order under subsection (2) above must specify the period within which the local authority must comply with the order.

(5) The maximum period that may be so specified is seven working days.

(6) If the Secretary of State by order so provides, subsection (2) above also applies where—

(a) a court remands on bail any person who has attained the age of 12 and is under the age of 17,

(b) the requirement in section 23AA(3) of this Act is fulfilled, and

(c) in a case where he is remanded after conviction, the court is satisfied that the behaviour which constituted the offence was due, to a significant extent, to the circumstances in which the offender was living.

(7) In this section—

• “serious offence” means an offence punishable in the case of an adult with imprisonment for a term of two years or more.

• “working day” means any day other than—

  (a)

  a Saturday or a Sunday,

  (b)

  Christmas day or Good Friday, or

  (c)

  a bank holiday in England and Wales under the Banking and Financial Dealings Act 1971.”.

Valid from 30/06/2004

91 Proceedings under section 222 of the Local Government Act 1972: power of arrest attached to injunction E+W

(1) This section applies to proceedings in which a local authority is a party by virtue of section 222 of the Local Government Act 1972 (c. 70) (power of local authority to bring, defend or appear in proceedings for the promotion or protection of the interests of inhabitants of their area).

(2) If the court grants an injunction which prohibits conduct which is capable of causing nuisance or annoyance to a person it may, if subsection (3) below applies, attach a power of arrest to any provision of the injunction.

(3) This subsection applies if the local authority applies to the court to attach the power of arrest and the court thinks that either—

(a) the conduct mentioned in subsection (2) consists of or includes the use or threatened use of violence, or

(b) there is a significant risk of harm to the person mentioned in that subsection.

(4) Harm includes serious ill-treatment or abuse (whether physical or not).

(5) Local authority has the same meaning as in section 222 of the Local Government Act 1972.

Part 10 E+W+S General

92 Repeals E+W+S

Schedule 3 contains repeals.

Commencement Information

I87 S. 92 in force at 20.1.2004 for specified purposes by S.I. 2003/3300, art. 2(g)(i)

I88 S. 92 in force at 31.3.2004 for specified purposes by S.I. 2004/690, art. 2(c)(i)

93 Commencement E+W+S

(1) Except as provided in subsections (2) and (3), the preceding provisions of this Act (other than subsections (9) to (11) of section 85) come into force in accordance with provision made by the Secretary of State by order.

(2) Part 2 and sections 19 to 22, 24, 40 to 45, 47 to 52, 55, 56 and 91—

(a) so far as relating to England, come into force in accordance with provision made by the Secretary of State by order;

(b) so far as relating to Wales, come into force in accordance with provision made by the National Assembly for Wales by order.

(3) Part 8 comes into force—

(a) in relation to complaints about hedges situated in England, in accordance with provision made by the Secretary of State by order;

(b) in relation to complaints about hedges situated in Wales, in accordance with provision made by the National Assembly for Wales by order.

94 Orders and regulations E+W+S

(1) References in this section to subordinate legislation are to—

(a) an order of the Secretary of State or the National Assembly for Wales under this Act;

(b) regulations under this Act.

(2) Subordinate legislation—

(a) may make different provision for different purposes, different cases and different areas;

(b) may include incidental, supplemental, consequential, saving or transitional provisions (including provisions applying, with or without modification, provision contained in an enactment).

(3) A power to make subordinate legislation is exercisable by statutory instrument.

(4) A statutory instrument is subject to annulment in pursuance of a resolution of either House of Parliament if it contains subordinate legislation made by the Secretary of State other than—

(a) regulations under section 81 or 83; or

(b) an order under section 93.

(5) No regulations shall be made by the Secretary of State under section 81 or 83 (whether alone or with other provisions) unless a draft of the statutory instrument containing the regulations has been laid before, and approved by a resolution of, each House of Parliament.

95 Money E+W+S

There shall be paid out of money provided by Parliament any increase attributable to this Act in the sums payable out of money so provided under any other enactment.

96 Extent E+W+S

(1) Parts 1 to 4 and 6 to 9 extend to England and Wales only.

(2) Part 5 and this Part do not extend to Northern Ireland.

97 Short title E+W+S

This Act may be cited as the Anti-social Behaviour Act 2003.

SCHEDULES

Valid from 30/06/2004

Section 14

SCHEDULE 1 E+W Demoted tenancies

1 E+W In the Housing Act 1996 (c. 52) after section 143 the following sections are inserted as Chapter 1A of Part 5—

“General provisions E+W

Demoted tenancies E+W

143A Demoted tenancies

(1) This section applies to a periodic tenancy of a dwelling-house if each of the following conditions is satisfied.

(2) The first condition is that the landlord is either a local housing authority or a housing action trust.

(3) The second condition is that the tenant condition in section 81 of the Housing Act 1985 is satisfied.

(4) The third condition is that the tenancy is created by virtue of a demotion order under section 82A of that Act.

(5) In this Chapter—

(a) a tenancy to which this section applies is referred to as a demoted tenancy;

(b) references to demoted tenants must be construed accordingly.

Duration of demoted tenancy E+W

143B Duration of demoted tenancy

(1) A demoted tenancy becomes a secure tenancy at the end of the period of one year (the demotion period) starting with the day the demotion order takes effect; but this is subject to subsections (2) to (5).

(2) A tenancy ceases to be a demoted tenancy if any of the following paragraphs applies—

(a) either of the first or second conditions in section 143A ceases to be satisfied;

(b) the demotion order is quashed;

(c) the tenant dies and no one is entitled to succeed to the tenancy.

(3) If at any time before the end of the demotion period the landlord serves a notice of proceedings for possession of the dwelling-house subsection (4) applies.

(4) The tenancy continues as a demoted tenancy until the end of the demotion period or (if later) until any of the following occurs—

(a) the notice of proceedings is withdrawn by the landlord;

(b) the proceedings are determined in favour of the tenant;

(c) the period of 6 months beginning with the date on which the notice is served ends and no proceedings for possession have been brought.

(5) A tenancy does not come to an end merely because it ceases to be a demoted tenancy.

Change of landlord E+W

143C Change of landlord

(1) A tenancy continues to be a demoted tenancy for the duration of the demotion period if—

(a) at the time the demoted tenancy is created the interest of the landlord belongs to a local housing authority or a housing action trust, and

(b) during the demotion period the interest of the landlord transfers to another person who is a local housing authority or a housing action trust.

(2) Subsections (3) and (4) apply if—

(a) at the time the demoted tenancy is created the interest of the landlord belongs to a local housing authority or a housing action trust, and

(b) during the demotion period the interest of the landlord transfers to a person who is not such a body.

(3) If the new landlord is a registered social landlord or a person who does not satisfy the landlord condition the tenancy becomes an assured shorthold tenancy.

(4) If the new landlord is not a registered social landlord and does satisfy the landlord condition the tenancy becomes a secure tenancy.

(5) The landlord condition must be construed in accordance with section 80 of the Housing Act 1985.

Proceedings for possession E+W

Proceedings for possession E+W

143D Proceedings for possession

(1) The landlord may only bring a demoted tenancy to an end by obtaining an order of the court for possession of the dwelling-house.

(2) The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed.

(3) If the court makes such an order the tenancy comes to an end on the date on which the tenant is to give up possession in pursuance of the order.

Notice of proceedings for possession E+W

143E Notice of proceedings for possession

(1) Proceedings for possession of a dwelling-house let under a demoted tenancy must not be brought unless the landlord has served on the tenant a notice of proceedings under this section.

(2) The notice must—

(a) state that the court will be asked to make an order for the possession of the dwelling-house;

(b) set out the reasons for the landlord’s decision to apply for the order;

(c) specify the date after which proceedings for the possession of the dwelling-house may be begun;

(d) inform the tenant of his right to request a review of the landlord’s decision and of the time within which the request must be made.

(3) The date specified under subsection (2)(c) must not be earlier than the date on which the tenancy could (apart from this Chapter) be brought to an end by notice to quit given by the landlord on the same date as the notice of proceedings.

(4) The court must not entertain proceedings begun on or before the date specified under subsection (2)(c).

(5) The notice must also inform the tenant that if he needs help or advice—

(a) about the notice, or

(b) about what to do about the notice,

he must take the notice immediately to a Citizen’s Advice Bureau, a housing aid centre, a law centre or a solicitor.

Review of decision to seek possession E+W

143F Review of decision to seek possession

(1) Before the end of the period of 14 days beginning with the date of service of a notice for possession of a dwelling-house let under a demoted tenancy the tenant may request the landlord to review its decision to seek an order for possession.

(2) If a request is made in accordance with subsection (1) the landlord must review the decision.

(3) The Secretary of State may by regulations make provision as to the procedure to be followed in connection with a review under this section.

(4) The regulations may include provision—

(a) requiring the decision on review to be made by a person of appropriate seniority who was not involved in the original decision;

(b) as to the circumstances in which the tenant is entitled to an oral hearing, and whether and by whom he may be represented at the hearing.

(5) The landlord must notify the tenant—

(a) of the decision on the review;

(b) of the reasons for the decision.

(6) The review must be carried out and notice given under subsection (5) before the date specified in the notice of proceedings as the date after which proceedings for possession of the dwelling-house may be begun.

Effect of proceedings for possession E+W

143G Effect of proceedings for possession

(1) This section applies if the landlord has begun proceedings for the possession of a dwelling-house let under a demoted tenancy and—

(a) the demotion period ends, or

(b) any of paragraphs (a) to (c) of section 143B(2) applies (circumstances in which a tenancy ceases to be a demoted tenancy).

(2) If any of paragraphs (a) to (c) of section 143B(2) applies the tenancy ceases to be a demoted tenancy but the landlord (or the new landlord as the case may be) may continue the proceedings.

(3) Subsection (4) applies if in accordance with subsection (2) a tenancy ceases to be a demoted tenancy and becomes a secure tenancy.

(4) The tenant is not entitled to exercise the right to buy unless—

(a) the proceedings are finally determined, and

(b) he is not required to give up possession of the dwelling-house.

(5) The proceedings must be treated as finally determined if—

(a) they are withdrawn;

(b) any appeal is abandoned;

(c) the time for appealing expires without an appeal being brought.

Succession E+W

Succession to demoted tenancy E+W

143H Succession to demoted tenancy

(1) This section applies if the tenant under a demoted tenancy dies.

(2) If the tenant was a successor, the tenancy—

(a) ceases to be a demoted tenancy, but

(b) does not become a secure tenancy.

(3) In any other case a person is qualified to succeed the tenant if—

(a) he occupies the dwelling-house as his only or principal home at the time of the tenant’s death,

(b) he is a member of the tenant’s family, and

(c) he has resided with the tenant throughout the period of 12 months ending with the tenant’s death.

(4) If only one person is qualified to succeed under subsection (3) the tenancy vests in him by virtue of this section.

(5) If there is more than one such person the tenancy vests by virtue of this section in the person preferred in accordance with the following rules—

(a) the tenant’s spouse or (if the tenant has no spouse) the person mentioned in section 143P(1)(b) is to be preferred to another member of the tenant’s family;

(b) if there are two or more other members of the tenant’s family the person preferred may be agreed between them or (if there is no such agreement) selected by the landlord.

No successor tenant: termination E+W

143I No successor tenant: termination

(1) This section applies if the demoted tenant dies and no person is qualified to succeed to the tenancy as mentioned in section 143H(3).

(2) The tenancy ceases to be a demoted tenancy if either subsection (3) or (4) applies.

(3) This subsection applies if the tenancy is vested or otherwise disposed of in the course of the administration of the tenant’s estate unless the vesting or other disposal is in pursuance of an order under—

(a) section 23A or 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings);

(b) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, etc);

(c) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents).

(4) This subsection applies if it is known that when the tenancy is vested or otherwise disposed of in the course of the administration of the tenant’s estate it will not be in pursuance of an order mentioned in subsection (3).

(5) A tenancy which ceases to be a demoted tenancy by virtue of this section cannot subsequently become a secure tenancy.

Successor tenants E+W

143J Successor tenants

(1) This section applies for the purpose of sections 143H and 143I.

(2) A person is a successor to a secure tenancy which is terminated by a demotion order if any of subsections (3) to (6) applies to him.

(3) The tenancy vested in him—

(a) by virtue of section 89 of the Housing Act 1985 or section 133 of this Act;

(b) under the will or intestacy of the preceding tenant.

(4) The tenancy arose by virtue of section 86 of the Housing Act 1985 and the original fixed term was granted—

(a) to another person, or

(b) to him jointly with another person.

(5) He became the tenant on the tenancy being assigned to him unless—

(a) the tenancy was assigned in proceedings under section 23A or 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings) or section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, etc), and

(b) neither he nor the other party to the marriage was a successor.

(6) He became the tenant on assignment under section 92 of the Housing Act 1985 if he himself was a successor to the tenancy which he assigned in exchange.

(7) A person is the successor to a demoted tenancy if the tenancy vested in him by virtue of section 143H(4) or (5).

(8) A person is the successor to a joint tenancy if he has become the sole tenant.

Assignment E+W

Restriction on assignment E+W

143K Restriction on assignment

(1) A demoted tenancy is not capable of being assigned except as mentioned in subsection (2).

(2) The exceptions are assignment in pursuance of an order made under—

(a) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings);

(b) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, etc.);

(c) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents).

Repairs E+W

Right to carry out repairs E+W

143L Right to carry out repairs

The Secretary of State may by regulations under section 96 of the Housing Act 1985 (secure tenants: right to carry out repairs) apply to demoted tenants any provision made under that section in relation to secure tenants.

Provision of information E+W

Provision of information E+W

143M Provision of information

(1) This section applies to a local housing authority or a housing action trust if it is the landlord of a demoted tenancy.

(2) The landlord must from time to time publish information about the demoted tenancy in such form as it thinks best suited to explain in simple terms and so far as it considers appropriate the effect of—

(a) the express terms of the demoted tenancy;

(b) the provisions of this Chapter;

(c) the provisions of sections 11 to 16 of the Landlord and Tenant Act 1985 (landlord’s repairing obligations).

(3) The landlord must ensure that information published under subsection (2) is, so far as is reasonably practicable, kept up to date.

(4) The landlord must supply the tenant with—

(a) a copy of the information published under subsection (2);

(b) a written statement of the terms of the tenancy, so far as they are neither expressed in the lease or written tenancy agreement (if any) nor implied by law.

(5) The statement required by subsection (4)(b) must be supplied on the grant of the tenancy or as soon as practicable afterwards.

Supplementary E+W

Jurisdiction of county court E+W

143N Jurisdiction of county court

(1) A county court has jurisdiction—

(a) to determine questions arising under this Chapter;

(b) to entertain proceedings brought under this Chapter;

(c) to determine claims (for whatever amount) in connection with a demoted tenancy.

(2) The jurisdiction includes jurisdiction to entertain proceedings as to whether a statement supplied in pursuance of section 143M(4)(b) (written statement of certain terms of tenancy) is accurate.

(3) For the purposes of subsection (2) it is immaterial that no relief other than a declaration is sought.

(4) If a person takes proceedings in the High Court which, by virtue of this section, he could have taken in the county court he is not entitled to recover any costs.

(5) The Lord Chancellor may make such rules and give such directions as he thinks fit for the purposes of giving effect to this section.

(6) The rules and directions may provide—

(a) for the exercise by a district judge of a county court of any jurisdiction exercisable under this section;

(b) for the conduct of proceedings in private.

(7) The power to make rules must be exercised by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.

Meaning of dwelling house E+W

143O Meaning of dwelling house

(1) For the purposes of this Chapter a dwelling-house may be a house or a part of a house.

(2) Land let together with a dwelling-house must be treated for the purposes of this Chapter as part of the dwelling-house unless the land is agricultural land which would not be treated as part of a dwelling-house for the purposes of Part 4 of the Housing Act 1985.

Members of a person’s family E+W

143P Members of a person’s family

(1) For the purposes of this Chapter a person is a member of another’s family if—

(a) he is the spouse of that person;

(b) he and that person live together as a couple in an enduring family relationship, but he does not fall within paragraph (c);

(c) he is that person’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.

(2) For the purposes of subsection (1)(b) it is immaterial that two persons living together in an enduring family relationship are of the same sex.

(3) For the purposes of subsection (1)(c)—

(a) a relationship by marriage must be treated as a relationship by blood;

(b) a relationship of the half-blood must be treated as a relationship of the whole blood;

(c) a stepchild of a person must be treated as his child.”

2 (1) The Housing Act 1985 (c. 68) is amended as follows. E+W

(2) In section 105 (requirement to consult secure tenants on certain housing management matters) after subsection (6) there is inserted the following subsection—

“(7) For the purposes of this section—

(a) secure tenants include demoted tenants within the meaning of section 143A of the Housing Act 1996;

(b) secure tenancies include demoted tenancies within the meaning of that section.”

(3) In section 171B (extent of preserved right to buy) after subsection (1) there is inserted the following subsection—

“(1A) A person to whom this section applies ceases to have the preserved right to buy if the tenancy of a relevant dwelling-house becomes a demoted tenancy by virtue of a demotion order under section 6A of the Housing Act 1988.”

(4) In Schedule 1 (tenancies which are not secure tenancies) after paragraph 1A (introductory tenancies) there is inserted the following paragraph—

“1B A tenancy is not a secure tenancy if it is a demoted tenancy within the meaning of section 143A of the Housing Act 1996.”

(5) In Schedule 4 (qualifying period for right to buy and discount) after paragraph 9 (the tenant condition) there is inserted the following paragraph—

“9A The tenant condition is not met during any period when a tenancy is a demoted tenancy by virtue of section 20B of the Housing Act 1988 or section 143A of the Housing Act 1996.”

Valid from 30/09/2004

Section 88

SCHEDULE 2 E+W Curfew orders and supervision orders

Interpretation E+W

1 E+W In this Schedule “the 2000 Act” means the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6).

Curfew orders E+W

2 (1) Section 37 of the 2000 Act (curfew orders) is amended as follows. E+W

(2) Subsection (4) (which limits to three months the duration of a curfew order made in respect of a person aged under 16 on conviction) is omitted.

(3) For subsection (12) there is substituted—

“(12) In this Act, “responsible officer”, in relation to an offender subject to a curfew order, means—

(a) where the offender is also subject to a supervision order, the person who is the supervisor in relation to the supervision order, and

(b) in any other case, the person who is responsible for monitoring the offender’s whereabouts during the curfew periods specified in the order.”

Supervision orders E+W

3 E+W After section 64 of the 2000 Act there is inserted—

“64A Supervision orders and curfew orders

Nothing in this Chapter prevents a court which makes a supervision order in respect of an offender from also making a curfew order in respect of him.”

4 (1) Schedule 6 to the 2000 Act (requirements which may be included in supervision orders) is amended as follows. E+W

(2) In paragraph 2(5) (total number of days during which offender may be required to comply with directions of supervisor not to exceed 90), for “90” there is substituted “ 180 ”.

(3) In paragraph 3 (requirements as to activities, reparation, night restrictions etc)—

(a) sub-paragraph (2)(e) (night restriction) is omitted, and

(b) in sub-paragraph (3) (total number of days in respect of which an offender may be subject to requirements imposed by virtue of any of sub-paragraph (2)(a) to (e) not to exceed 90)—

(i) for the words “, (d) or (e)” there is substituted “ or (d) ”, and

(ii) for “90” there is substituted “ 180 ”.

(4) Paragraph 4 (night restrictions) is omitted.

(5) After paragraph 5 there is inserted—

“Requirement to live for specified period with local authority foster parent E+W

5A (1) Where the conditions mentioned in sub-paragraph (2) below are satisfied, a supervision order may impose a requirement (“a foster parent residence requirement”) that the offender shall live for a specified period with a local authority foster parent.

(2) The conditions are that—

(a) the offence is punishable with imprisonment in the case of an offender aged 18 or over;

(b) the offence, or the combination of the offence and one or more offences associated with it, was so serious that a custodial sentence would normally be appropriate (or, where the offender is aged 10 or 11, would normally be appropriate if the offender were aged 12 or over); and

(c) the court is satisfied that—

(i) the behaviour which constituted the offence was due to a significant extent to the circumstances in which the offender was living, and

(ii) the imposition of a foster parent residence requirement will assist in his rehabilitation.

(3) A foster parent residence requirement shall designate the local authority who are to place the offender with a local authority foster parent under section 23(2)(a) of the Children Act 1989, and that authority shall be the authority in whose area the offender resides.

(4) A court shall not impose a foster parent residence requirement unless—

(a) the court has been notified by the Secretary of State that arrangements for implementing such a requirement are available in the area of the designated authority;

(b) the notice has not been withdrawn; and

(c) the court has consulted the designated authority.

(5) Subject to paragraph 5(2A) of Schedule 7 to this Act, the maximum period which may be specified in a foster parent residence requirement is twelve months.

(6) A court shall not impose a foster parent residence requirement in respect of an offender who is not legally represented at the relevant time in that court unless—

(a) he was granted a right to representation funded by the Legal Services Commission as part of the Criminal Defence Service for the purposes of the proceedings but the right was withdrawn because of his conduct; or

(b) he has been informed of his right to apply for such representation for the purposes of the proceedings and has had opportunity to do so, but nevertheless refused or failed to apply.

(7) In sub-paragraph (6) above—

(a) “the relevant time” means the time when the court is considering whether or not to impose the requirement, and

(b) “the proceedings” means—

(i) the whole proceedings, or

(ii) the part of the proceedings relating to the imposition of the requirement.

(8) A supervision order imposing a foster parent residence requirement may also impose any of the requirements mentioned in paragraphs 2, 3, 6 and 7 of this Schedule.

(9) If at any time while a supervision order imposing a foster parent residence requirement is in force, the supervisor notifies the offender—

(a) that no suitable local authority foster parent is available, and

(b) that the supervisor has applied or proposes to apply under paragraph 5 of Schedule 7 for the variation or revocation of the order,

the foster parent residence requirement shall, until the determination of the application, be taken to require the offender to live in local authority accommodation (as defined by section 163 of this Act).

(10) This paragraph does not affect the power of a local authority to place with a local authority foster parent an offender to whom a local authority residence requirement under paragraph 5 above relates.

(11) In this paragraph “local authority foster parent” has the same meaning as in the Children Act 1989.”

Consequential amendments E+W

5 E+W In section 21 of the Children Act 1989 (c. 41) (provision of accommodation for children in police protection or detention or on remand, etc.) in subsection (2)(c)(ii) after “2000” there is inserted “ or a foster parent residence requirement under paragraph 5A of that Schedule ”.

6 (1) Schedule 7 to the 2000 Act (breach, revocation and amendment of supervision orders) is amended as follows. E+W

(2) In paragraph 2 (breach of requirement of supervision order)—

(a) in sub-paragraph (1), after “5” there is inserted “ , 5A ”,

(b) in sub-paragraph (2)(a)(ii) after “subject to” there is inserted “ sub-paragraph (2A) below and ”, and

(c) after sub-paragraph (2) there is inserted—

“(2A) The court may not make a curfew order under sub-paragraph (2)(a)(ii) above in respect of an offender who is already subject to a curfew order.”

(3) In paragraph 5 (revocation and amendment of supervision order)—

(a) after sub-paragraph (2) there is inserted—

“(2A) In relation to a supervision order imposing a foster parent residence requirement under paragraph 5A of Schedule 6 to this Act, the power conferred by sub-paragraph (1)(b)(ii) above includes power to extend the period specified in the requirement to a period of not more than 18 months beginning with the day on which the requirement first had effect.”, and

(b) sub-paragraph (3)(b) and the word “or” immediately preceding it are omitted.

Section 92

SCHEDULE 3 E+W+S Repeals

Commencement Information

I89 Sch. 3 in force at 20.1.2004 for specified purposes by S.I. 2003/3300, art. 2(g)(ii)

I90 Sch. 3 in force at 31.3.2004 for specified purposes by S.I. 2004/690, art. 2(c)(ii)

Short title and chapter	Extent of repeal
Firearms Act 1968 (c. 27)	Section 22(5). In section 23(2) the words “or (5)”. In Part 1 of Schedule 6, the entry relating to section 22(5).
Prosecution of Offences Act 1985 (c. 23)	In section 3(2), the word “and” after paragraph (f).
Firearms (Amendment) Act 1988 (c. 45)	In section 1(4), the word “or” at the end of paragraph (a).
Criminal Justice and Public Order Act 1994 (c. 33)	In section 63(2), “in the open air”. In section 68(1), “in the open air” in both places. In section 69(1), “in the open air” in both places.
Noise Act 1996 (c. 37)	In section 2(7) the words from “and accordingly” to the end.
Housing Act 1996 (c. 52)	Sections 152 and 153. In section 158— (a) in subsection (1), the entries relating to “child”, “harm”, “health” and “ill-treatment”; (b) subsection (2).
Crime and Disorder Act 1998 (c. 37)	In section 1(1A), the word “or” after paragraph (c).
Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)	Section 37(4). In Schedule 6— (a) in paragraph 3(2), the words “and paragraph 4 below” and paragraph (e), and (b) paragraph 4. In Schedule 7, paragraph 5(3)(b) and the word “or” immediately preceding it.
Police Reform Act 2002 (c. 30)	In Schedule 4, the word “and” at the end of paragraph 1(2)(c). In Schedule 5, the word “and” at the end of paragraph 1(2)(b).