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FPN for littering on private land
jugeshm
post Mon, 30 Jul 2018 - 17:40
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Hi, my father received a FPN from Liverpool City Council for dropping a cigarette end on the floor and I am wondering if I can help him appeal it. We really appreciate any help.

He was at work and went out for a smoke break (our own business, he stands at the side of the building to smoke). Unknowingly, a Litter Officer working on behalf of Liverpool Council was parked on the other side of the main road. After his cigarette, my dad came back inside and back to work. 30 seconds later, the agent crosses the road and storms into our shop and demands to speak to my dad. My dad pleads his innocence, trying to explain its our private land and we are responsible for cleaning it. My dad explained that he was going to clean it. The litter officer gave the £80 fine regardless.

Now, the cigarette end was dropped on our private land. The property used to be a pub and has a Cellar Access/Beer Drop Door at the side of the property. The cigarette was dropped on the beer drop, which belongs to us. Therefore I believe this is private land and could be appealed. In the past, we have had people fly tip at this same location. Everytime I call the council to report it, they refuse to accept and inform my that as it's on private land, we are responsible.

The side of the property is a small dead end road. All our customers use it as car parking. We genuinely clean the side of the property everyday and pick up litter and debris blown here. After my dad had his cig, he came back inside to collect the broom and rubble bag for the rubbish. It was his turn for the daily sweep outside. When the officer entered our shop and issued the fine, my dad had the rubble bag in his hand. I noticed he was wearing GoPro and recording it, so if they view the footage, it will 100% show him holding the bag, with full intention to go outside and sweep the rubbish.

And lastly, the officer entered our private property to issue the fine. Firstly, he did not have permission to enter our premises. Secondly, surely the offence took place outside and any fine should be processed outside "on the spot", not in a different location? For example, if I dropped litter outside a shopping centre and then walked into Tesco, can the officer follow me inside and issue a fine? I would like to think not.

Here's images taken on the day showing location of litter:







We sent the following appeal via email. Please click the link below:

https://postimg.cc/image/tatis3j5z/


We then received the following reply from Liverpool City Council, rejecting the appeal:

https://s15.postimg.cc/mx4fp798r/appeal_reply.jpg


I am now unsure where to go from here. I would appreciate any advice where possible. Thank you for your time
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post Mon, 30 Jul 2018 - 17:40
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southpaw82
post Mon, 30 Jul 2018 - 17:52
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Environmental Protection Act 1990, s 87

QUOTE
(1) A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.

(2) This section applies to any place in the area of a principal litter authority which is open to the air, subject to subsection (3) below.

(3) This section does not apply to a place which is “open to the air” for the purposes of this Part by virtue of section 86(13) above if the public does not have access to it, with or without payment.


So, do the public have access?


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cp8759
post Mon, 30 Jul 2018 - 18:07
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Subsection 4A would appear to be relevant:

"No offence is committed under subsection (1) above where the depositing of the litter is—
(a)authorised by law; or
(b)done by or with the consent of the owner, occupier or other person having control of the place where it is deposited.
"


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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southpaw82
post Mon, 30 Jul 2018 - 18:13
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QUOTE (cp8759 @ Mon, 30 Jul 2018 - 19:07) *
Subsection 4A would appear to be relevant:

"No offence is committed under subsection (1) above where the depositing of the litter is—
(a)authorised by law; or
(b)done by or with the consent of the owner, occupier or other person having control of the place where it is deposited.
"

Indeed, though I like to take it one step at a time.


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Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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Redivi
post Mon, 30 Jul 2018 - 18:29
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Dear Pippa

Ref ****

I have received your reply to my appeal and note your assertion that the Fixed Penalty was issued correctly

I also note your comment that there may be a defence if the alleged litter was left with the prior consent of the owner
I presume that you are referring to the Environmental Protection Act S87(4A)(b) that, in this situation, no offence is committed

I have enclose a confirmation of prior consent from the owner (name), in accordance with S87(4B), and trust that, as there are no longer any grounds for prosecution, the matter is closed

Yours Faithfully


This post has been edited by Redivi: Mon, 30 Jul 2018 - 18:30
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jugeshm
post Mon, 30 Jul 2018 - 18:39
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QUOTE (southpaw82 @ Mon, 30 Jul 2018 - 18:52) *
Environmental Protection Act 1990, s 87

QUOTE
(1) A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.

(2) This section applies to any place in the area of a principal litter authority which is open to the air, subject to subsection (3) below.

(3) This section does not apply to a place which is “open to the air” for the purposes of this Part by virtue of section 86(13) above if the public does not have access to it, with or without payment.


So, do the public have access?


Hi, the beer drop is built into the pavement. So yes, the public technically have access to walk over it? A friend of mine suggested I would need to look into the deeds/land registry and see where the "lines/boundaries are.
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southpaw82
post Mon, 30 Jul 2018 - 18:41
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QUOTE (jugeshm @ Mon, 30 Jul 2018 - 19:39) *
QUOTE (southpaw82 @ Mon, 30 Jul 2018 - 18:52) *
Environmental Protection Act 1990, s 87

QUOTE
(1) A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.

(2) This section applies to any place in the area of a principal litter authority which is open to the air, subject to subsection (3) below.

(3) This section does not apply to a place which is “open to the air” for the purposes of this Part by virtue of section 86(13) above if the public does not have access to it, with or without payment.


So, do the public have access?


Hi, the beer drop is built into the pavement. So yes, the public technically have access to walk over it? A friend of mine suggested I would need to look into the deeds/land registry and see where the "lines/boundaries are.

Not really. It's a matter of fact whether the public have access or not, doesn't really matter where the boundary is.


--------------------


Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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jugeshm
post Mon, 30 Jul 2018 - 18:58
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QUOTE (southpaw82 @ Mon, 30 Jul 2018 - 19:41) *
QUOTE (jugeshm @ Mon, 30 Jul 2018 - 19:39) *
QUOTE (southpaw82 @ Mon, 30 Jul 2018 - 18:52) *
Environmental Protection Act 1990, s 87

QUOTE
(1) A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.

(2) This section applies to any place in the area of a principal litter authority which is open to the air, subject to subsection (3) below.

(3) This section does not apply to a place which is “open to the air” for the purposes of this Part by virtue of section 86(13) above if the public does not have access to it, with or without payment.


So, do the public have access?


Hi, the beer drop is built into the pavement. So yes, the public technically have access to walk over it? A friend of mine suggested I would need to look into the deeds/land registry and see where the "lines/boundaries are.

Not really. It's a matter of fact whether the public have access or not, doesn't really matter where the boundary is.


Ok, so yes it's Private Lane (my beer drop) but public have access.

So does this mean I have no grounds for appeal?

Any grounds for appeal where gov.uk state "Before you enter private land to issue FPNs, you should consider whether to get consent, because you don’t have statutory powers of entry in this situation. This applies to privately owned land which the public can access"

Thanks

This post has been edited by jugeshm: Mon, 30 Jul 2018 - 18:59
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southpaw82
post Mon, 30 Jul 2018 - 19:06
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Posts 3 and 4.


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Any comments made do not constitute legal advice and should not be relied upon. No lawyer/client relationship should be assumed nor should any duty of care be owed.
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notmeatloaf
post Mon, 30 Jul 2018 - 20:41
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If you own that section of pavement then it is probably not an offence under (4).

But you need to check, if it is a former pub it is quite possible there are easements allowing you to use the beer drop even without ownership of the pavement. The fact the council in the past have said it is private land is little indication they are right.

It is not worth worrying about whether they are permitted to enter. There is implied consent that you can enter an open shop. Even if you asked him to leave trespass is a civil matter. It does not affect the validity of the ticket.

And to answer your question, yes he could follow you into Tesco's unless they told him he was not permitted to enter.
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cp8759
post Mon, 30 Jul 2018 - 21:07
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Just to clarify for this type of FPN there is no "appeal", either you pay it or you don't, if you don't the council can prosecute in the Magistrates' Court. In this instance if the defence in subsection 4 applies, you'd plead not guilty on that basis.


--------------------
I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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jugeshm
post Tue, 31 Jul 2018 - 13:28
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QUOTE (Redivi @ Mon, 30 Jul 2018 - 19:29) *
Dear Pippa

Ref ****

I have received your reply to my appeal and note your assertion that the Fixed Penalty was issued correctly

I also note your comment that there may be a defence if the alleged litter was left with the prior consent of the owner
I presume that you are referring to the Environmental Protection Act S87(4A)(b) that, in this situation, no offence is committed

I have enclose a confirmation of prior consent from the owner (name), in accordance with S87(4B), and trust that, as there are no longer any grounds for prosecution, the matter is closed

Yours Faithfully


Many thanks for all the replies.

I am going to reply to them with the above correspondence as advised by Redivi.

With regards to "confirmation of prior consent", what's the best way going about this?
Draft a quick letter on a company business letterhead and attach it to my reply?
If so, what would such a letter say?
What's the best way to write "staff and customers of (business name) can drop litter without consequences..."
But in a professional manner smile.gif

It would be good to have this document at hand for future references. As we get many tradesman at our shop. When they open their vans, rubbish and debris always blows out. These litter officers are bullying everyone around here (shopping park) and following people down the road. I would hate for a customer of mine to be fined £80 like this, when visiting our shop. So if I can draft such a document and have it printed instore, it might be helpful for others.
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cp8759
post Tue, 31 Jul 2018 - 15:55
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Consent can be implied (especially in a small family business) and doesn't need to be given by written notice.

For this FPN, just get whoever was in control of the premises at the time to write a short witness statement saying they consented to the dropping of litter, there's a word template you can use at https://www.justice.gov.uk/courts/procedure...l/forms#Anchor5

something like this (just a rough guide, feel free to reword in your own terms):

"I am Mr so and so and I am the manger/ owner / whatever of the business located at address. On such and such a date Mr (father) deposited litter at (inset time) at the aforementioned address, specifically onto the beer drop located outside of and adjacent to the building. The depositing of the litter on this occasion was done with my consent, and I was the owner/occupier/other person having control of the premises at the time"

As for future instances, it might be simpler to write to the council and advise them that a section 4A defence will be raised in relation to all future FPNs at this location, and inviting them to stop issuing.

This post has been edited by cp8759: Tue, 31 Jul 2018 - 17:11


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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jugeshm
post Tue, 31 Jul 2018 - 16:25
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cp8759 - Thank you very much for your help

I will keep you guys updated with (hopefully) a positive outcome.

Thanks again!
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jugeshm
post Wed, 8 Aug 2018 - 11:24
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*UPDATE*

Just received a reply and the FPN has been cancelled!

"Hi *****

Thank you for your email.

Although the permission needed to be sent to us prior to the offence being committed, on this occasion Liverpool City Council have decided to rescind the Fixed Penalty Notice and no further action will be taken.

Regards

Pippa Jones I Senior Administration Officer
Liverpool City Council

"

Thank you to everyone who replied and offered advice. Very much appreciated! Keep up the good work smile.gif
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DancingDad
post Wed, 8 Aug 2018 - 12:02
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Well done.
Just a note that didn't seem to be mentioned in any detail.
The offence is dropping litter and leaving it.
Dad collecting broom and rubbish bag to sweep up what he had dropped (and other rubbish) is not leaving it.
Usually it is taken that if you walk away it is leaving but walking away to get a broom etc seems like a reasonable defence to me.
Not needed but I though I would mention.
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cp8759
post Wed, 8 Aug 2018 - 12:38
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I would add that it's complete BS that "the permission needed to be sent to us prior to the offence being committed", permission (which can be implied) needs to be given to the person dropping the litter, not the council. Notifying them that this defence would be used in future is purely a matter of courtesy, there was no "need" to send them anything in advance. Still, I imagine they'll leave you in peace from now on.


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I am not on the "motorists's side", nor am I on the "police/CPS/council's" side, I am simply in favour of the rule of law.
No, I am not a lawyer.
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StuartBu
post Wed, 8 Aug 2018 - 12:39
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QUOTE (DancingDad @ Wed, 8 Aug 2018 - 13:02) *
Well done.
Just a note that didn't seem to be mentioned in any detail.
The offence is dropping litter and leaving it.
Dad collecting broom and rubbish bag to sweep up what he had dropped (and other rubbish) is not leaving it.
Usually it is taken that if you walk away it is leaving but walking away to get a broom etc seems like a reasonable defence to me.
Not needed but I though I would mention.


Sensible result but dearie me ....some of the things that go on in this Country !!!!!
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666
post Wed, 8 Aug 2018 - 13:03
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QUOTE (StuartBu @ Wed, 8 Aug 2018 - 13:39) *
Sensible result but dearie me ....some of the things that go on in this Country !!!!!


Incorrect capialisation for a start.
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The Rookie
post Wed, 8 Aug 2018 - 14:05
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QUOTE (jugeshm @ Wed, 8 Aug 2018 - 12:24) *
Although the permission needed to be sent to us prior to the offence being committed

Is that for real? They want everyone who owns some land to send them that permission in advance of any possible littering?

Noting that as no offence occurred then it’s arguable that it was complied with anyway.....

I have visions of Blakey from on the busses!


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