1.       CROSS-CUTTING ISSUES AND IMPLICATIONS

2.    INTRODUCTION AND BACKGROUND

2.      

2.1     The Waste Crime Team are responsible for the investigation and enforcement of all waste related crimes including fly tipping and littering.  

2.2     Enforcement of waste crimes can take various forms from a warning letter to criminal prosecution.  The investigating team determine the action to be taken based on the evidence obtained, the impact of the crime, repeated or multiple offences and any mitigating circumstances. 

2.3     Criminal prosecutions require significant investigative work and compilation of the legal file.  Since the pandemic it also takes a long time for such cases to get to Court.  Any fines determined by the Court go to the Treasury and are therefore not available to support any clear up costs. 

2.4     Fixed Penalty Notices (FPNs) offer offenders the opportunity to avoid prosecution and pay a fine directly to the Council.  The Council retains this charge, which is ring-fenced to support the cleansing and enforcement services.  Therefore, in the first instance the Council will often issue FPNs for the offences and only pursue prosecution if the FPN is not paid or for repeated or large-scale offences.

2.5     The current FPN charges are shown in the table below.  The majority of these are at the statutory maximum, except for littering which was based on local affordability, and graffiti. 

2.6     In 2021-22, the team issued 154 FPNs for waste crime offences including littering, fly tipping and duty of care offences. 

2.7     In July, the Government laid down the Statutory Instrument to increase several of the FPNs, enabling the Council to consider the charges it currently levies.  The table below shows Maidstone’s current value and the new maximum value set by Government.

2.8     The FPN levels are usually set through the annual Fees and Charges report, however given the changes made by Government, it is recommended that the Council consider revising the charges sooner than this process.

3.   AVAILABLE OPTIONS

3.1     Option 1: The Council could decide to retain the current charges and not increase them following the change by Government to the maximum values.

3.2     Option 2: The Council could decide to increase the FPNs to the maximum amount allowed as per the table in 2.7.  This option will create the maximum deterrent for these offences, however there is a significant risk of non-payment due to the high costs which will result in an increase in prosecutions.  Setting the highest charge also does not demonstrate that the local circumstances have been considered.  Court-levied fines are determined on affordability of the offender so there is a risk that these could be lower than the FPN value.  If prosecutions are not sought, this will undermine the FPN process and further increase non-payment.

3.3     Option 3: The Council could decide to increase the FPN’s to a middle value with the option to further increase once the impact of the rise is determined.  This would still act as a deterrent whilst remaining more affordable to maximise payment rates.

3.4     Option 4: The Council could decide to create two levels of FPN charges based on the impact and severity of the offence.  This would require two fly tipping FPNs to be created – one for low level fly tipping such as a single item and one for larger fly tips involving mixed or hazardous waste, or that obstruct access.  The same would be proposed for littering.  The recommended charges are shown in the table below:

3.5     It is also recommended that the current option of early payment discount continues to be offered for the Level 1 offences only.  This would reduce the littering FPN to £200 and fly tipping FPN to £520 if paid within 14 days.

4.        PREFERRED OPTION AND REASONS FOR RECOMMENDATIONS

4.1     It recommended that Option 4 is agreed, including the application of early payment discounts if the FPN is paid within 14 days.

4.2     As set out above, this option ensures the maximum deterrent whilst considering the severity of the offence, impact on the environment and cost to the taxpayer of clearing up the waste.  Offering two levels of FPN for these offences ensures that the consequences are proportionate to the offence.

4.3     Offering the early payment options helps with the affordability of the penalties and encourages payment of the charge, reducing the likelihood of the offence having to be pursued through prosecution.

4.4     Due to the higher risk of legal challenge on the two-tiered approach, given the element of discretion involved and as identified in the risks below, it is recommended that the Waste Crime Fixed Penalty Notice Policy, attached in Appendix 1, is adopted.  This policy provides the basis for the charging, reducing the risk of challenge and ensuring the decisions taken are objective.

5.       RISK

5.1    The sizeable increase in maximum value for waste crime FPNs indicates that the Government is determined to take a tough stance on these offences.  

5.2    There is a risk that the FPNs are increased to such a level that most offenders are unable to afford payment, resulting in more offences going to prosecution which will incur more officer time, cost and doesn’t support the reinvestment of fines in the service.  Securing court time will also be challenging for higher levels of waste crime prosecutions, and if prosecution cannot be achieved it will undermine the enforcement process. 

5.3    However, if the FPNs are not increased sufficiently, particularly for fly tipping, they will not deter offenders.  This will be especially significant if the fines are lower than neighbouring authorities, as the offenders are also likely to consider the risks of getting caught. 

5.4    With the two-tiered approach there is a risk of challenge from offenders as to why they were given the higher FPN as opposed to the lower one.  However, the adoption of a clear policy around the circumstances of the offences and when each level will be applied will remove any element of subjectivity and reduce the risk of challenge.

6.       CONSULTATION RESULTS AND PREVIOUS COMMITTEE FEEDBACK

6.1     Annual updates have been taken to the Communities, Housing and Environment Committee since 2018 when the team was first created.  During this time feedback has been received about the focus of the team and the importance of a “zero-tolerance” approach to waste crime.

6.2     This report has considered previous feedback from the Committee and Ward Members about the impact waste crime has on communities and the need to take a proactive approach to targeting, disrupting and enforcing against fly tippers.

7.       NEXT STEPS: COMMUNICATION AND IMPLEMENTATION OF THE DECISION

7.1     If the recommendation is agreed, the increase in charge and application of the new Waste Crime Fixed Penalty Notice Policy will be applied from 1 October 2023. 

7.2     All current signage does not specify the value of FPNs so this will not require replacement.  However, information available on the website will be updated.

7.3     A communications campaign will be run on social media to highlight the increased fines and promote responsible waste management.  This will include highlighting the need to get duty of care paperwork and check for waste carrier’s licence if using a private contractor to dispose of waste.

8.        REPORT APPENDICES

Appendix A – Waste Crime Fixed Penalty Notice Policy

9.        BACKGROUND PAPERS

None