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Legislation and policies

We all have responsibility to keep our land clear of litter but what does the law say?

The Environmental Protection Act 1990 is the main driver for litter and waste on land and others exist to help keep our environment clear of litter.

The littering offence

Section 87 of the Environmental Protection Act 1990 states the offence of littering. It is a crime for anyone to throw down, drop or otherwise deposit something either in, into or from a public open space, and leaves, it to cause, or contribute to, or tend to lead to, litter.

A public open place must be open to the air (minimum open on at least one side), free to access by the public but some exceptions apply – educational land and that by transport operators such as track sides.

Section 88 of the Environmental Protection Act 1990 outlines what happens if someone does litter. A person guilty of a littering offence may be given a Fixed Penalty Notice (FPN) which is a fine of £80. If paid on time, they will not face conviction. However, if the FPN is not paid the case can be submitted to the Procurator Fiscal and the offender taken to court. This can result in a fine up to £2,500 and the chance of a criminal conviction. Children committing an offence worthy of a FPN would generally not be liable for a conviction.

Penalties can be issued by the police, local authorities and public bodies, including Loch Lomond and the Trossachs National Park. The police and SEPA generally get involved in larger scale issues such as flytipping involving organised crime or hazards to health.  

To issue a FPN there must be “reason to believe” the offence has been committed. This generally means that an officer (police, local authority or from Loch Lomond and the Trossachs National Park) must have witnessed it. There should be enough evidence so it can lead to prosecution in court which is why public reported littering is not usually enough for a fine. That said, there are different practices across the country so it may be worth checking your local authority website.

Current approaches to litter enforcement are being reviewed by Scottish Government as part of the work under the National Litter and Flytipping Strategy.

What counts as an offence:

  • Dropped can in a public park - Crime
  • Spat out chewing gum on the pavement – Crime
  • Dropped a ticket but picked it up – Not a crime
  • Thrown bottle out of a car – Crime
  • Left items on a wall in a public place – Crime
  • Left empty packaging in a front garden – Not a crime
  • Banana peel in a bush in a park – Crime
  • Cigarette down a drain – Crime

Dog fouling offence

Leaving dog faeces is slightly different to leaving litter - but illegal all the same.

The Dog Fouling Act 2003 details that if a dog defecates in a public open space and a person who is in charge of the dog at that time fails immediately to remove the faeces that person shall be guilty of an offence.

A public open space is similar to the littering offence. It does not apply to agricultural land but does include any common passage, close, court, stair, back green, garden, yard or other similar common area.

Throwing, depositing, dropping or otherwise putting the faeces onto any other open public place is not sufficient removal – this means bagging dog poo and leaving it on a tree or bush is an offence. Also, being unaware of the defecation (whether it is because the person was in the vicinity or not), or not having a suitable means of removing the faeces, is not a reasonable excuse for failing to remove the faeces.

The only exceptions are if the person has a reasonable excuse for not picking it up, or if the person or authority in control of the land has consented (generally or specifically) to leaving it.

A person guilty of the offence may be given a Fixed Penalty Notice (FPN) which is a fine of £80. If the FPN is not paid by the expiry date it can be increased to £100. If it remains unpaid a warrant can be made to collect the debt.

Penalties can be issued by the police, local authorities, and public bodies including Loch Lomond and the Trossachs National Park.

Litter Control Areas

Local authorities can designate some land as Litter Control Areas under The Litter Control Areas Order 1991 (amended in 1997) Some examples of land that could be designated a Litter Control Area are car parks, retail centres, industrial estates, business parks, entertainment complexes, motorway service stations and camping and caravan sites. This is not an exhaustive list, and some exceptions apply.

Once land has been designated a Litter Control Area it means littering there is now an offence like in open public space. It also means the occupier has a duty to keep the land clear of litter and refuse like public bodies.

Duty to keep land clear of litter

Section 89 of the Environmental Protection Act outlines the duty of certain bodies to ensure land is, so far as is practicable, kept clear of litter and refuse. Practical guidance on this has been issued and in Scotland this is the Code of Practice on Litter and Refuse (Scotland) 2018, sometimes seen as COPLAR. More information on the specific bodies and duties can be found on the page on Responsibilities

Litter Abatement Order

Section 91 of the Environmental Protection Act explains how members of the public can seek a Litter Abatement Order against a body with the duty to keep land clean and clear of refuse. It can be used by someone angry by the lack of cleanliness of land covered by section 89 (above and more detail in the responsibilities page). The person must give the body at least five days' notice of the intention to make the complaint. If the sheriff court deems the land defaced by litter, the Litter Abatement Order will be issued to clear the area unless the defendant provides evidence of compliance with their duty. If the Litter Abatement Order is not met the body would then be guilty of an offence and be fined.

Street litter control notice

Section 93 of the Environmental Protection Act 1990 outlines how local authorities can issue notices to occupiers of premises or land next to a street with requirements to stop litter accumulating. It can be given if there is a recurring issue, and without this notice will likely continue, that causes litter and refuse on streets and open spaces. The requirements are not specific but appropriate to the case and will relate to clearing litter.

Preventing litter with legislation

Legislation is being used to help prevent litter by targeting problem items.

The Environmental Protection (Cotton Buds) (Scotland) Regulations 2019 came into force in October 2019 and made it an offence to manufacture, sell, intend to sell, or be in possession to sell any plastic cotton bud. This was done to prevent plastic pollution, particularly in our marine environment and protect the wildlife from the harmful effects.

Plastic packaging is subject to tax that is used in the supply chain and for single use by consumers. This is based on packaging components and weights. Organisations need to register for the tax if they have imported into the UK or manufactured 10 tonnes or more of finished plastic packaging components over the previous year or expect to import or manufacture 10 tonnes or more over the following 30 days.  

Scotland was the first nation to ban particular single-use plastics. In June 2022 The Environmental Protection (Single-use Plastic Products) (Scotland) Regulations 2021 came into force, banning plastic cutlery (forks, knives, spoons, chopsticks), plates, straws, beverage stirrers and balloon sticks; food containers made of expanded polystyrene; and cups and other beverage containers made of expanded polystyrene, including their covers and lids. It is now an offence for businesses to provide these.

More legislation is due to be introduced targeting other problem items, read more on the page on Current action.

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