Anti-social Behaviour Act 2003

Part 6 The environment

Noise

40 Closure of noisy premises

(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.

41 Closure of noisy premises: supplemental

(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).

42 Dealing with noise at night

(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.

Penalty notices for graffiti and fly-posting

43 Penalty notices for graffiti and fly-posting

(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).

44 Meaning of relevant offence

(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.

45 Penalty receipts

(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.

46 Powers of police civilians

(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”.

47 Interpretation etc

(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.

Removal of graffiti

48 Graffiti removal notices

(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).

49 Recovery of expenditure

(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.

50 Guidance

(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.

51 Appeals

(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.

52 Exemption from liability in relation to graffiti removal notices

(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.

Advertisements

53 Display of advertisements in contravention of regulations

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”.

Aerosol paints

54 Sale of aerosol paint to children

(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.

Waste and litter

55 Unlawfully deposited waste etc

(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.

56 Extension of litter authority powers to take remedial action

(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.