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The legal response to safeguarding local environmental quality

  • Victoria Jenkins (a1)
Abstract

Local environmental quality is best understood as a measure of the aesthetic complexion of public space in the urban environment. Anti‐social acts causing damage to the physical environment of local communities have, traditionally, attracted little moral opprobrium; and the role of local authorities in safeguarding local environmental quality has been undervalued. However, this is an issue that has been proven to have a significant impact on the quality of life of local communities, particularly those in deprived neighbourhoods. This paper argues, therefore, that we need to develop a comprehensive legal framework to safeguard local environmental quality in the future. This problem has so far been tackled as nuisance, local environmental crime or anti‐social behaviour. The paper concludes that an approach based on measures to tackle incivility in society is to be preferred; thus, the Anti‐social Behaviour, Crime and Policing Act 2014 will be particularly significant in this regard. However, some amendments to this legislation will be required to ensure its effective application to the problems of local environmental quality. Further measures should also be taken to support citizen participation and education as part of a comprehensive legal framework for safeguarding the local environment.

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Corresponding author
Victoria Jenkins, College of Law, Swansea University, Singleton Park, Swansea SA8 2PP, UK. Email: v.a.jenkins@swansea.ac.uk
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I would like to thank Stuart Macdonald, Mark Stallworthy, Andrew Millie, Patrick Bishop and the anonymous referees for their comments on previous drafts of this paper. However, I take full responsibility for any errors or omissions.

Footnotes
References
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1. This is based on a definition in Living Places: Cleaner, Safer, Greener. Eleventh Report of Session 2002–03 HC 673-1 (London: Department of the Environment, Food and Rural Affairs, 2002) p 9. This is discussed in detail below, but the definition used in this paper includes places in which we play as well as those in which we live and work.

2. The United Nations calculates that 54% of the world's population lives in urban areas: ‘World's population increasingly urban with more than half living in urban areas’ (New York: United Nations, 10 July 2014). In the UK that figure was 81.5% in 2011: 2011 Census Analysis – Comparing Rural and Urban Areas in England and Wales (London: Office for National Statistics, 2013).

3. See further the Labour government's Neighbourhood Renewal Strategy Bringing Britain Together: A National Strategy for Neighbourhood Renewal Cm 4045 (London: Social Exclusion Unit, 1998) and Millie on anti-social behaviour: Millie, A Anti-Social Behaviour (Oxford: Oxford University Press, 2009) ch 2.

4. The Word on Our Street: A National Survey Measuring the Public's Perceptions of their Local Environment (London: Keep Britain Tidy, 2011).

5. Ibid.

6. Earth Summit Agenda 21: The United Nations Programme of Action from Rio (United Nations, 1993).

7. See further Agyeman, J Sustainable Communities and the Challenge of Environmental Justice (New York: New York University Press, 2005). In the UK context, see further Securing our Future (London: Department of Food and Rural Affairs, 2005) ch 6, and in Wales, Jenkins, VSustainable communities in Wales: developing a new governance approach to local sustainable development in Wales's most deprived areas’ in Bishop, P and Stallworthy, M (eds) Environmental Law and Policy in Wales: Responding to Local and Global Challenges (Cardiff: University of Wales Press, 2013) pp 123143.

8. Although the exact origins of the phrase ‘Think globally, act locally’ are unknown, it was widely adopted as a mantra for the local environmental movement in the 1990s. See further Ward, S“Think globally, act locally”: British local authorities and their environmental plans’ (1993) 2(3) Envtl Pol 453478. On the importance of local action for global sustainable development, see further O'Riordan, T Globalism, Localism and Identity: New Perspectives on the Transition to Sustainability (Oxford: Routledge, 2002).

9. Kelling, G and Wilson, JBroken windows: the police and neighbourhood safety’ (1982) 249(3) Atlantic Monthly 29.

10. It has been described as ‘more in the nature of an interesting hypothesis than an empirically proven causal axiom.’ Roberts, PPenal offences in question’ in Von Hirsch, A and Simester, A (eds) Incivilities Regulating Offensive Behaviour (Oxford: Hart Publishing, 2006) ch 1 at p 36. There is also evidence, for example, that ‘place-oriented police ‘crackdowns’, based on the Broken Windows principle, can significantly increase the probability of local residents feeling unsafe, and ‘accordingly any fear reduction benefits gained by reducing disorder may be offset by the fact that the policing strategies employed simultaneously increase fear of crime’; quoted in S Mackenzie et al ‘The drivers of perceptions of anti-social behaviour’, Research Report 34 (London: Home Office, 2010); with reference to Hinkle, J and Weisburd, DThe irony of broken windows policing: a micro-place study of the relationship between disorder, focused police crackdowns and fear of crime’ (2008) 36 J Crim Just 503512 .

11. The House of Commons Environmental Audit Committee found evidence of the operation of this theory in practice. Environmental Audit Committee Environmental Crime: Fly-tipping, Fly-posting, Litter Graffiti and Noise. Ninth Report of Session 2003–04 HC 445 (London: The Stationery Office) para 44. For evidence of the continuing significance of the theory, and some proof of these connections, see statistics included in the most recent survey of local environmental quality in England: How Clean is England? The Local Environmental Quality Survey of England 2013–2014 (London: Keep Britain Tidy, 2014). This concludes that the ‘overall presence of crime is far greater on streets where litter, graffiti and fly-posting are present compared to those without these issues’ (p 27).

12. See below 0015.

13. See further Warburton, D Community and Sustainable Development: Participation in the Future (London: Earthscan, 2009).

14. Mackenzie et al, above 10.

15. The Public Health Act 1936, s 77 provided local authorities with a power to carry out street cleansing and a duty to do so if directed by central government. This duty was replaced by the Environmental Protection Act 1990, s 89.

16. In the early twentieth century, these duties were pursued alongside wider responsibilities for natural resource management in the supply of utilities, control of water resources and land-use planning.

17. Statutory nuisances are defined as follows:

  • Any premises in such a state as to be prejudicial to health or a nuisance.

  • Smoke, fumes or gases, dust, steam, smell or other effluvia emitted from any premises such as to be prejudicial to health or a nuisance.

  • Any accumulation or deposit or any animal kept in such a place or manner such as to be prejudicial to health or a nuisance.

  • Any insects emanating from relevant trade or business premises or artificial light emitted from premises such as to be prejudicial to health or a nuisance.

  • Noise (including from a vehicle) such as to be prejudicial to health or a nuisance.

Environmental Protection Act 1990, s 79(1). There is also the possibility however, of an individual action under the Environmental Protection Act 1990, s 80.

18. St Helens Smelting Company v Tipping (1865) 11 E.R. 1483.

19. See further Lowry, J and Edmunds, R Environmental Protection and the Common Law (Oxford: Hart Publishing, 2000). More recently, these cases have become known as ‘toxic tort’ cases. In certain cases, nuisance law may be invoked even where planning permission has been granted for the activity in question. See further Coventry v Lawrence [2014] 4 All E.R. 517.

20. Etherington, LStatutory nuisance and hybrid orders: true crime stories?’ (2012) 33(3) Statute L Rev 390. Dennis also notes that preventive orders have been used successfully in other fields. See further Dennis, ISecurity, risk and preventive orders’ in Sullivan, S and Dennis, I (eds) Seeking Security: Pre-empting the Commission of Criminal Harms (Oxford: Hart Publishing, 2012).

21. Etherington, above 20, at 406.

22. It should also be noted that the possibility of effective action against amenity nuisance in an urban environment is curtailed by the locality doctrine, which dictates that ‘what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey’. LJ Thesiger , Sturges v Bridgman (1879) 11 Ch. D.852, 856. Although this would not preclude a nuisance action in cases of property damage and is not relevant to the ‘prejudicial to health’ limb of statutory nuisance.

23. Furthermore, the role of statutory nuisance is considered to have been unnecessarily restricted by the judiciary in their approach to the interpretation of the legislation. Malcolm, R and Pointing, JStatutory nuisance: the sanitary paradigm and judicial conservatism’ (2006) 18(1) J Envtl L 37 at 40.

24. Pontin, B Nuisance Law and Environmental Protection: A Study of Nuisance Injunctions in Practice (Witney: Lawtext Publishing, 2013) p 176.

25. Ibid, p 177. Pontin discusses the American literature on the exclusion of aesthetic nuisance and considers this to be a key area of criticism of nuisance law in England and Wales.

26. Spencer, JPublic nuisance – a critical examination’ (1989) 48 Cambridge L J 55. Public nuisance actions can also be instigated by the Attorney General or by an individual with the Attorney General's permission, termed a ‘relator action’.

27. R v Shorrock [1993] 3 All E.R. 917.

28. Spencer, above 26.

29. Attorney General v P.Y.A. Quarries Ltd [1957] 2 QB 169.

30. See further Sagar, TPublic Nuisance Injunctions against on-street sex workers?’ (2008) Crim L Rev 353.

31. Ibid.

32. The use of PNIs is considered to undermine the type of multi-agency approaches now adopted to address such behaviour. See further Sagar, above 30. It has also been argued that PNIs should be obsolete anyway, because according to Rimmington v Goldstein [2005] UKHL 63, there is a presumption that individuals will be prosecuted for a relevant statutory offence where it exists. Spencer, above 26.

33. The Control of Pollution Act 1974 provided a duty for local authorities to create a strategy for tackling litter (s 24); a power to issue notices in respect of the maintenance of waste land (defined as a garden or vacant site of open land the condition of which was causing serious injury to the amenity of the area) (s 65); and for the removal of waste from land (s 16). Local authorities could also enter into arrangements with owner/occupiers of land to facilitate street cleaning (s 22). The Litter Act 1983 introduced penalties for leaving litter while the Town and Country Planning Act 1971, s 109 included an offence of fly-posting.

34. Local Government Act 1972, s 235. The penalty for this offence on summary conviction was a fine, which could include a daily charge for a continuing offence (s 237). The Local Government Act 1972 also gave local authorities powers to prosecute in any legal proceedings where they considered it expedient for the promotion or protection of the interests of the inhabitants of their area (Local Government Act 1972, s 222).

35. This Common Inheritance: Britain's Environmental Strategy Cm 1200 (London: Department of the Environment, 1990) p 114.

36. Environmental Protection Act 1990, pts I and II, respectively.

37. Harris, RThe Environmental Protection Act 1990 – penalising the polluter’ (1992) J Planning L 515 at 515.

38. This Common Inheritance, above 35, p 197. The growing problems of litter were attributed to smokers, fast food packaging and plastic carrier bags.

39. Ibid.

40. Environmental Protection Act 1990, s 88. The option of a court hearing still applies for more serious offences. The offence of littering is to throw down, drop or otherwise deposit litter in a place open to the air and to which the public have access (s 87(1)–(3)). The Act also explicitly states that convictions for this offence could be publicised by the local authority to help in the abatement of this problem (s 87(6)). Section 33 of the Act provided for the offence of the unlawful deposit of waste. This was clearly directed at corporations involved in fly-tipping, as waste from domestic properties is specifically excluded in s 33(2).

41. Environmental Protection Act 1990, s 90. Contravention of an abatement notice was a summary offence resulting in a level 4 fine, but could also include further payment at 1/20 of this fine for every day that the offence continued after conviction (s 92). An application could also be made to the Magistrates' Court by an individual aggrieved by litter (s 91). This mirrors the provision in respect of statutory nuisance under s 80, see above 17.

42. Environmental Protection Act 1990, s 93. Street litter control notices could be imposed on premises with a frontage on the street where the pavement outside, or adjacent to open land, was continually defaced by litter resulting from the activities of those premises.

43. See further Environmental Audit Committee Environmental Crime and the Courts. Sixth Report of Session 2003–04 HC 126 (London: The Stationery Office).

44. Ashworth, A and Zedner, LDefending the criminal law: reflections on the changing character of crime, procedure and sanctions’ (2008) 2(1) Crim L & Phil 2151.

45. Local Environmental Enforcement – Guidance on the Use of Fixed Penalty Notices (London: Department of the Environment, Food and Rural Affairs, 2007) p 47.

46. Ashworth, A Principles of Criminal Law (Oxford: Oxford University Press, 2013).

47. See further Macrory, R Regulatory Justice: Making Sanctions Effective (London: Better Regulation Executive, 2006).

48. Party, Labour Protecting our Communities: Labour's Plans for Tackling Criminal, Anti-social Behaviour in Neighbourhoods (London: Labour Party, 1996).

49. Burney, E Making People Behave: Anti-social Behaviour, Politics and Policy (Cullompton, UK: Willan, 2005) p 19.

50. Millie, above 3, ch 2.

51. Labour Party A Quiet Life: Tough Action on Criminal Neighbours (London: Labour Party, 1995).

52. The Housing Act 1996, s 152 defines anti-social behaviour as follows: ‘Engaging in conducting, causing or likely to cause a nuisance or annoyance to a person residing in, visiting or otherwise engaging in lawful activity in residential premises …’ (emphasis added).

53. Crime and Disorder Act 1998, s 1.

54. This is punishable by up to 5 years' imprisonment (in the case of adults) or a detention and training order of up to 24 months' duration (in the case of under-18s).

55. See further A Clarke et al Describing and Assessing Interventions to Address Anti-social Behaviour Research Report 51 (London: Home Office, 2011).

56. See further Home Office A Guide to Anti-Social Behaviour Orders and Acceptable Behaviour Contracts (London: Home Office Communication Directorate, 2003); available at http://www.homeoffice.gov.uk/anti-social-behaviour/penalties/acceptable-behaviour-contracts (accessed 29 April 2015).

57. Crime and Disorder Act 1998, s 1C(3), introduced under the Police Reform Act 2002.

58. Of all orders issued between 1999 and 2013, 60% were CrASBOs. Statutory Notice: Anti-social Behaviour Order Statistics: England and Wales 2013 (London: Ministry of Justice, 2014).

59. Crime and Disorder Act 1998, s 5.

60. Crawford, A The Local Governance of Crime (Oxford: Oxford University Press, 1999) p 34.

61. Crime and Disorder Act 1998, s 6. Section 6(2) states that before formulating a strategy, local authorities must ‘(a) carry out a review of the levels and patterns of crime and disorder in the area (taking due account of the knowledge and experience of persons in the area); (b) prepare an analysis of the results of that review; (c) publish in the area a report of that analysis; and (d) obtain the views on that report of persons or bodies in the area … whether by holding public meetings or otherwise’. The provisions for the involvement of local people are now made in regulations (Crime and Disorder (Formulation and Implementation of Strategy) Regulations 2007/1830). See further below 0112.

62. Criminal Justice and Police Act 2001, s 1.

63. Anti-social Behaviour Act 2003, s 30.

64. See above 17, 0041, 0042.

65. This was the conclusion of the House of Commons Environmental Audit Committee on the crimes of fly-tipping, fly-posting, litter graffiti and noise. These were described as ‘low level’ crimes that nevertheless have ‘an enormous impact upon the local environment’ and that are ‘seen as a particular area of concern by very many communities across the country’. Environmental Audit Committee, above 11, p 7.

66. Respect and Responsibility – Taking a Stand Against Anti-social Behaviour Cm 5778 (London: Home Office, 2003). This also later became an essential element of its policy on sustainable communities. See further Securing our Future (London: Department of Food and Rural Affairs, 2005) ch 6.

67. Bringing Britain Together, above 3.

68. See above 13.

69. A New Commitment to Neighbourhood Renewal: National Strategy Action Plan (London: Social Exclusion Unit, 2001) p 8. The SNR was later supported by the New Deal for Communities scheme (NDC), an area-based funding programme to which the improvement of the physical environment was also central: ‘The scheme adopted a wide range of initiatives to improve and develop the physical environment which included, inter alia, supporting the modernisation of social housing and improving the residential environment, including cleaning up public spaces, remodelling residential environments in a bid to design out crime, and introducing more green spaces, improving gardens and alleyways.’ Stanton, JLocal sustainable development: lessons learned from the New Deal for Communities’ (2012) 14(1) Envtl L Rev 26 at 37.

70. Living Places, above 1.

71. Ibid, Foreword.

72. Ibid, p 11.

73. Ibid.

74. Living Places, above 1. This review and the increase in local authority regulatory powers in this area were welcomed by the House of Commons Select Committee on Housing Planning Local Government and the Regions.

75. Respect and Responsibility , above 66.

76. Environmental Audit Committee, above 11. These issues were highlighted in the more general report by the Environmental Audit Committee, above 43.

77. The act of graffiti was an offence under a number of different pieces of legislation, primarily the Criminal Damage Act 1971 and the Highways Act 1980. Fly-posting was an offence under the Town and Country Planning Act 1990 and statutory offences relating to noise date back to the Noise Abatement Act 1960.

78. The Anti-social Behaviour Act 2003 extended the use of FPNs to graffiti and fly-posting (s 43).

79. Anti-social Behaviour Act 2003, s 48 and Clean Neighbourhoods and Environment Act 2005 ss 31 and 43, respectively.

80. See further Padfield, NThe Anti-social Behaviour Act 2003: the ultimate nanny state act?’ (2004) Crim L Rev 712.

81. The Clean Neighbourhoods and Environment Act 2005, ss 96 and 97. The House of Commons Select Committee on Housing Planning Local Government provided significant support for the retention of the receipts of FPNs by local authorities – measures that were included in later legislation with respect to litter. House of Commons Select Committee on Housing, Planning, Local Government and the Regions Living Places, Cleaner, Safer, Greener Eleventh Report of Session 202-2003 HC 673-I. The offence of littering was also extended to all open places (s 18), a new system of litter clearing notices was introduced to replace litter abatement notices (s 20) and the power to issue street litter control notices was extended to vehicles and stalls (s 71).

82. See further Clean Neighbourhoods and Environment Act 2005: dog control orders (ss 55–67), abandoned vehicles (ss 10–14) and audible intruder alarms (ss 69–81). FPNs were later also applied to offences committed under local authority by-laws by the Local Government and Public Involvement in Health Act 2007.

83. See Home Office website, in 2010; available at http://webarchive.nationalarchives.gov.uk/20100405140447/http://asb.homeoffice.gov.uk (accessed 29 April 2015).

84. See, for example, the use of CCTV by Preston Council, where images were posted on the Internet in the hope that local people would ‘shop’ those filmed littering. ‘Crackdown on litter outs reaps success’ Lancashire Evening Post 3 February 2014. Another example is the time-limited ‘crackdown’ by Swansea City Council involving a private enforcement company rather than their own officers. ‘Swansea's crackdown on dog fouling and litter’ South Wales Evening Post 16 September 2013.

85. Crime and Disorder Act 1998, s 6.

86. Crime and Disorder Act 1998, s 1. See 0053 above.

87. The phrase ‘alarm, distress or harassment’ was initially used in Public Order Act 1986, s 5. This section has the title ‘Harassment, alarm and distress’ and the offence under s5(1)(a) is to use threatening, abusive or insulting words or behaviour, or disorderly behaviour. This replaced a previous offence under the Public Order Act 1936 aimed at addressing the use of threatening, abusive or insulting words or behaviour with intent to provoke a breach of the peace.

88. For example, the work of Banksy now demands great sums of money. Furthermore, some academics have lamented the demise of posters in advertising as an important art form. Frost, M et al The Rise and Fall of the Poster: Street Talk (Mulgrave, Victoria: Images Publishing Group, 2006) p 32.

89. Ramsay, PWhat is anti-social behaviour’ (2004) Crim L Rev 908 at 911.

90. Ibid, at 910.

91. Gosport BC v Fareham Magistrates' Court [2006] EWHC 3047. This case involved an Anti-social Behaviour Order made against someone riding a jet-ski at excessive speed. The order was quashed because there were no swimmers in the water at the time. The court found that to satisfy the term ‘likely to cause’ harassment, alarm or distress, it was necessary to establish not only the presence of others, but that the behaviour had actually caused such feelings (para 20).

92. This includes the imposition of ASBOs for wildlife offences. For example, the first wildlife ASBO was imposed on a person convicted for the theft of rare bird eggs, preventing him from travelling to Scotland for 10 years. ‘Egg collector given ASBO preventing travel to Scotland’ BBC News 24 February 2012; available at http://www.bbc.co.uk/news/uk-scotland-17160830 (accessed 19 April 2015). An ASBO was also imposed on a man involved in a number of poaching and hare coursing incidents. ‘Stokesley poacher is given an ASBO’ Gazette Live 4 August 2011; available at http://www.gazettelive.co.uk/news/local-news/stokesley-poacher-given-asbo-3691582 (accessed 29 April 2015). They have also been sought in cases of off-road motorcycling in the countryside. See further Jenkins, V and Macdonald, SKeeping off-roaders on track: addressing the misuse of off-road vehicles in urban and rural settings’ (2010) J Planning & Envtl L 1124 .

93. The use of ASBOs in tackling graffiti was assisted by the introduction of a power for transport authorities, as well as local authorities and the police, to impose such orders. Crime and Disorder Act 1998 (Relevant Authorities and Relevant Persons) Order 2006/2137.

94. Fly-tipping: Causes, Incentives and Solutions: A Good Practice Guide for Local Authorities (London: University College London, 2006). The first ASBO to be issued for fly-tipping on the application of a local council was made against a man found dumping rubbish in a private capacity, in 2005. ‘First ASBO issued for fly-tipping’ BBC News 28 January 2005; available at http://news.bbc.co.uk/1/hi/england/kent/4217477.stm (accessed 29 April 2015).

95. The power was extended to the Environment Agency by the Crime and Disorder Act 1998 (Relevant Authorities and Relevant Persons) Order 2006/2137. It was estimated that the Agency would seek 50 stand-alone ASBOs and 50 CrASBOs per annum. Final Public Sector Regulatory Impact Assessment: Giving the Environment Agency the Power to Apply for ASBOs (London: Home Office, 2006), However, between 2006 and 2009 only four CrASBOs were imposed in waste cases (Information from the Environment Agency, National Enforcement Database). Nevertheless, CrASBOs continue to be targeted to the small number of serial organised fly-tippers. For example, a 10-year CrASBO was imposed on a prolific fly-tipper in Bristol, banning him from having anything to do with waste disposal: ‘Bristol's biggest fly-tipper jailed’ Bristol Post 2 May 2009; available at http://www.bristolpost.co.uk/Bristol-s-biggest-fly-tipper-jailed/story-11308695-detail/story.html (accessed 29 April 2015).

96. See for example, the Sony case in which the company was forced to stop illegal fly-posting to advertise its artists after two of its executives were threatened with Anti-social Behaviour Orders. ‘Sony backs down in fly-posting row with council’ Telegraph 15 June 2004. The potential application of ASBOs to the corporate sector is an issue that has, so far, attracted little academic attention, but there are clearly important implications for the wider regulatory agenda.

97. Burney, above 49, p 167.

98. Labour Party, above 48.

99. The penalty for breach of an ASBO is up to 5 years' imprisonment, but custodial sentences cannot be imposed for breach of SNOs or litter orders.

100. Garland, D The Culture of Control: Crime and Social Order in Contemporary Society (Oxford: Oxford University Press, 2001).

101. Crawford, AGoverning through anti-social behaviour: regulatory challenges to criminal justice’ (2009) 49 Br J Crim 810.

102. See further Ashworth, above 46, ch 3; and for a more detailed consideration in the context of anti-social behaviour, Ashworth, ASocial control and “anti-social behaviour”: the subversion of human rights?’ (2004) 120 L Q Rev 263.

103. MacDonald, SA suicidal woman, roaming pigs and a noisy trampolinist: refining the ASBO's definition of “anti-social behaviour” ’ (2006) 69(2) Mod L Rev 183.

104. Duff, R and Marshall, SHow offensive can you get?’ in Von Hirsch and Simester, above 10, pp 5790 .

105. See further Millie, AAnti-social behaviour, behavioural expectations and an urban aesthetic’ (2008) 48(3) Br J Crim 379; and Baker, DA critical evaluation of the historical and contemporary justifications for criminalising begging’ (2009) 73(3) J Crim L 212.

106. See eg Macdonald, S and Telford, MThe use of ASBOs against young people in England and Wales: lessons from Scotland’ (2007) 27(4) Legal Stud 604629; and Squires, P and Stephen, D Rougher Justice: Anti-Social Behaviour and Young People (Cullompton, UK: Willan, 2005).

107. Statutory Notice, above 58.

108. See, for example, in a recent case of fly-tipping, a company banned from transporting controlled waste in England and Wales following a previous conviction was found guilty of dumping 3000 tyres within the same year. ‘Fly-tipping gang sentenced’ (2010) ENDS report 427, at 8.

109. Hodgkinson, S and Tilley, NTackling anti-social behaviour: lessons from New Labour for the Coalition government’ (2011) 11(4) Criminology & Crim Just 283.

110. Rogers, C Crime and Reduction Partnerships (Oxford: Oxford University Press, 2006).

111. Crime and Disorder (Formulation and Implementation of Strategy) Regulations 2007/1830, Reg 7(e).

112. Ibid., Reg 12.

113. This is a reference to the terminology used by Crawford, above 60.

114. See, for example, the requirement in the Local Government Act 2000, s 4 for local authorities, in England, to create a sustainable communities strategy after consulting and seeking the participation of other relevant parties. See further Jenkins, VLearning from the past: achieving sustainable development in the reform of local government’ (2002) Pub L 130151.

115. See further Crawford, above 60.

116. Burney, above 49, p 140.

117. For example, local authorities were given wide powers with respect to waste regulation by the EPA 1990 (see further Pugh-Smith, JThe local authority as a regulator of pollution in the 1990s’ (1992) J Planning L 103), but when the Environment Agency was formed in 1996 (to take a holistic approach to the problems of environmental pollution), these powers were also transferred to it (Environment Act 1995, s 2). However, local authorities do retain some control of the clean-up of contaminated land and air quality monitoring.

118. ‘Moving beyond the ASBO’ Speech by Theresa May 28 July 2010.

119. Putting Victims First: More Effective Responses to Anti-Social Behaviour Cm 8367 (London: Home Office, 2012).

120. See 0051 above.

121. These are examples of orders with reference to public space, but others were directed at activities on premises, such as closure orders and crack house closure orders. Putting Victims First, above 120, p 24.

122. Ibid. Also of some significance to local environmental quality were dog control orders and noisy premises closure orders.

123. Anti-social Behaviour, Crime and Policing Act 2014, s 43(1). The individual must be over 16. CPNs must state that the individual stop doing, or do, specified things or take reasonable steps to achieve specified results (s 43(3)). They must also be aimed at preventing or reducing the effect of recurring behaviour or the risk of this (s 43(4)).

124. A PPSO can prohibit specified things being done in the restricted area, and be directed at all people or specific categories of people; and can also be time limited if necessary. Anti-social Behaviour, Crime and Policing Act 2014, s 59.

125. See discussion at 0105 above onward.

126. Although the possible fines for contravention of CPNs are higher in relation to individuals and can be substantially higher for businesses. The fine in respect of individuals contravening CPNs is up to level 4, but for a company the limit is £20,000 (Anti-social Behaviour, Crime and Policing Act 2014, s 48). It is clearly envisaged, therefore, that CPNs might also be applied to businesses, which is important in addressing, for example, fly-posting and fly-tipping. The fine for contravention of PPSOs is up to level 3. Anti-social Behaviour, Crime and Policing Act 2014, s 67.

127. Anti-social Behaviour, Crime and Policing Act 2014, s 47.

128. See above 21.

129. See above 34. The power to issue by laws under the Local Government Act 1972 is made with reference to the need to ensure the ‘good rule and governance ‘of the local area.

130. Anti-social Behaviour, Crime and Policing Act 2014, ss 59 and 70, respectively.

131. Explanatory Notes to the Anti-social Behaviour, Crime and Policing Act 2014.

132. Anti-social Behaviour, Crime and Policing Act 2014, s 53.

133. See above 85.

134. See above 21. Note, however, that SNOs can be sought before the courts by individuals, whereas CPNs cannot. See above 17.

135. See further Lowndes, V and Pratchett, LLocal governance under the Coalition government: austerity, localism and the “Big Society” ’ (2012) 38(1) Local Gov't Stud 21. The centrepiece of this policy is the Localism Act 2011, which provides new ‘community rights’ with respect to neighbourhood planning, buying local assets and even challenging local government to provide services.

136. Mainstreaming Sustainable Development: The Government's Vision of What this Means in Practice (London: Department of the Environment, Food and Rural Affairs, 2011) p 6.

137. See further Empowering Communities, Protecting Victims: Summary Report on the Community Trigger Trials (London: Home Office, 2013).

138. Anti-social Behaviour, Crime and Policing Act 2014, s 104(1).

139. Ibid, s 104(4)–(5).

140. This was considered particularly important by the Home Affairs Select Committee in their pre-legislative scrutiny of the Act ( Home Affairs House of Commons Select Committee The Draft Anti-social Behaviour Bill: Pre-legislative Scrutiny. Twelfth Report of Session 2012–13 HC 836-I (London: The Stationery Office, 2013).

141. See further Empowering Communities, above 138.

142. Anti-social Behaviour, Crime and Policing Act 2014: Reform Of Anti-Social Behaviour Powers: Statutory Guidance for Frontline Professionals (London: Home Office, 2014).

143. Anti-social Behaviour, Crime and Policing Act 2014, s 101(2). The sanctions must have the purpose of: (a) assisting in the person's rehabilitation; (b) ensuring that the person makes reparation for the behaviour or offence in question; or (c) punishing the person (Anti-social Behaviour, Crime and Policing Act 2014, s 101(3)).

144. Anti-social Behaviour, Crime and Policing Act 2014, s 101(5). A community representative is defined as any individual or body appearing to represent the views of people who live in, work in or visit the area (s 101(9)).

145. Anti-social Behaviour, Crime and Policing Act 2014, s 102(1)–(2).

146. Ibid, s 102(3).

147. Ibid, s 102(6).

148. Marshall, T Restorative Justice: An Overview (London: Home Office, 1999) p 6.

149. See further Braithwaite, J Restorative Justice and Responsive Regulation (Oxford: Oxford University Press, 2002).

150. See, for example, Ashworth, who demands ‘further debate about and the division of functions between state, victims, offenders and communities: and far greater emphasis upon procedural safeguards’. Ashworth, AResponsibilities, rights and restorative justice’ (2002) Br J Criminology 578. Duff also argues that ‘offenders should suffer retribution for their crimes: but the essential purpose of such punishment should be to achieve restoration’. Duff, RRestorative punishment and punitive restoration’ in Walgrave, L (ed) Restorative Justice and the Law (Cullompton, UK: Willan, 2002) p 82.

151. Burney, ETalking tough, acting coy: what happened to ASBOs?’ (2002) 41(5) Howard J Crim Just 469.

152. See further Boyd, CExpanding the arsenal for sentencing environmental crimes: would therapeutic jurisprudence and restorative justice work?’ (2007) 32 Wm & Mary Envtl L & Pol'y Rev 483.

153. See further Crawford, A and Todd, RCommunity justice’: transforming communities through restorative justice’ in McLaughlin, E et al (eds) Restorative Justice: Critical Issues (London: SAGE Publishing, 2003) p 215, at p 216.

154. See eg Crawford, above 60.

155. A Crawford ‘The state, community and restorative justice: heresy, nostalgia and butterfly collecting’ in Walgrave, above 151, p 101, at p 120.

156. See further Braithwaite, above 150.

157. Anti-social Behaviour, Crime and Policing Act 2014, s 102(5). In this subsection, it is recognised that there may be more than one victim and they may have differing views on the appropriate remedy.

158. Anti-social Behaviour, Crime and Policing Act 2014, s 1.

159. This was argued by Macdonald, S and Hoffman, SShould ASBOs be civilized?’ (2010) 6 Crim L Rev 457.

160. That is, as conduct that has caused, or is likely to cause, harassment, alarm or distress to any person. Anti-social Behaviour, Crime and Policing Act 2014, s 2. The Coalition government was committed to defining anti-social behaviour in broad terms stating that ‘(it) remains a useful concept that focuses the police and other local agencies on the issues that matter most to people's daily lives …’ More Effective Responses to Anti-Social Behaviour (London: Home Office, 2011) p 8.

161. Anti-social Behaviour, Crime and Policing Act 2014, s 22.

162. Ibid, s 30.

163. Ibid, ss 3 and 24. In deciding what requirements to include in the order, the court must consult this individual/organisation as to their suitability and enforceability.

164. Hodgkinson and Tilley, above 109, at 295.

165. Ireland, SASBOs are dead, long live ASBOs’ (2011) 86 Crim Just Matters 26.

166. Ibid, p 27.

167. Anti-social Behaviour, Crime and Policing Act 2014, s 1. They may also be sought by Natural Resources Wales, in Wales.

168. See above 91.

169. See above 85.

170. See further Crawford, above 60.

171. See further Stanton, J Democratic Sustainability in a New Era of Localism (London: Routledge, 2014). There is also wide-ranging commitment the importance of participation in decision making on more mainstream concerns in environmental protection, such as pollution. In this context, participation is considered important in improving the quality of decision making by eliciting public values to inform decisions in an age of scientific uncertainty and adopt a problem solving approach. Lee, M and Abbot, CThe usual suspects? Public participation under the Aarhus Convention’ (2003) 66 Mod L Rev 80.

172. See further Stanton, above n 172.

173. On restorative justice as a deliberative process, see further Braithwaite, above 150, p 45. On the educative nature of such deliberative processes see further Young, ICommunication and the other’ in Benhabib, S (ed) Democracy and Difference (Princeton, NJ: Princeton University Press, 1996) p 34 .

174. This quote is taken from Holder, who discusses the concept in relation to the deliberative process involved in environmental assessment. Holder, J Environmental Assessment: The Regulation of Decision Making (Oxford: Oxford University Press, 2004) p 197.

175. This was the conclusion of the House of Commons Select Committee on Housing Planning Local Government and the Regions in 2003. The Committee therefore encouraged support for groups such as Groundwork. Living Places, above 1.

176. As outlined above, the response to local environmental crime also drew on the experience of using FPNs for motoring offences. See above 44.

177. See further Stephenson, C et al Road Safety Research Report No. 115 (London: Department of Transport, 2010); and McKenna, F Behavioural Research in Road Safety: Seventeenth Seminar 2007 (London: Department of Transport, 2009).

178. Historically, some receipts from FPNs have also been retained by local authorities. See above 81.

179. See above 84.

* I would like to thank Stuart Macdonald, Mark Stallworthy, Andrew Millie, Patrick Bishop and the anonymous referees for their comments on previous drafts of this paper. However, I take full responsibility for any errors or omissions.

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Legal Studies
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