Environmental Protection Act

Coblcris

Correct. Which is in Part Two. Please click on the link I provided.

Pnx

Thank you Coblcris for the link, after reading section 2 of the act, it all mentions "controlled waste".

I take it that if the councils are referring to section 2 of the act then it does not apply to an individual for what they are seeking a fixed penalty which they claim caused a litter/waste related offence

Coblcris

A fine of up to 40k plus optionally up to two years imprisonment for a breach of part two.

Clearly inapplicable.

See Part Four.

I would take action against the council if they did this to me.

sarahg1969

http://news.bbc.co.uk/1/hi/england/west_midlands/7231231.stm

http://www.mirror.co.uk/news/top-stories/2008/04/17/mum-kate-badger-in-apple-core-victory-115875-20385479/

sarahg1969

So, Coblcris, how does it work? Do the council's try and get the RK to pay a fixed penalty for littering, but if they fail to do so, try and get them under the Evironmental Protection Act re controlled waste?

Coblcris

They use the EPA as a (wrong) vastly oversized hammer to crack a nut.
When the victim of this abuse by the council, for that is what it is, does not fold they normally eventually quietly give up. Before then there is the usual a period of loud declamation by the council that they are right and will pursue vigorously. They normally also claim that 'according to advice' that they are in in the right.
Clearly the methods of bullies.
Quit frankly I am disgusted by this every time I see it. I am sure I am not alone when I say that I would like to see a council take this to court based on Part Two of the EPA.
But they dare not as I am sure the case would generate at least an adverse judicial comment.

The quiet dropping of the case is part of the publicity campaign that councils run around this misuse of the EPA. They hope that those that see these stories will pay up without demur if they get a similar letter.
Once or twice they have been known to to start the legal process only to withdraw before it all gets a bit too sticky for them. further abuse and done solely to get publicity in my opinion.

In the meantime the council want to issue a small FPN poster but have no way to lawfully force the details of who was in the vehicle at the time. This is on a par with the methods used by Private Parking Companies but in my view the sins are much worse. Councils have duties and obligations. Here we see all that cast aside and compounded by deliberate abuse of the law in pursuit of a few pounds. To quote Shaw, well paraphrase actually "We have established what they are. All we are discussing is their price"
It is appalling.

I would not quote Arkell V Pressdram to the council despite the severe tenptation. If it was me I would send a brief letter which would be summed up as 'We disagrre and can only decide this in court'. - and if the council not issue then I would issue against them.

For the poster here I would ignore any and every approach from the council just as I would with a Private Parking Company. If they have a case on the grounds they state then let them bring it. As above it would be wonderful if they did however I fear they will not.
Which further illustrates that the council knows it is abusing its powers and the law.

It is a sad indictment of the state of affairs today and the probity of councils. I use 'probity' in completely the wrong sense of course. Any organisation that does this deserves nothing but the utmost distrust.

Pnx

when i originally posted the first thread, the 14 days to reply was up on that day, so i wrote to the council to stall them while i got advice, i stated that i do not know driver of vehicle and could they supply information to identify who it was.

They wrote back today stating

The driver of the cehicle in question was witnessed depositing cigarette litter from the vehicle. A description of the driver recorded the following details, Male, Med-Large build, croppped short dark hair. I trust that this will assist you in identifying the driver.

and they given me a further 10 days to give them the info they require !

so best cause of action ?

Coblcris

If it was me I would ignore them. See post number 8 for the an outline of thereasons why any attempt by the council under Part Two of the EPA is an abuse of the law.
And please study the Act itself on the statutelaw website.

I would not hesitate to defend against a Part Two approach by the council if they were foolish enough to take me to court, despite the usual caveats of what can can happen at any magistrate's court.

Is it all possible that triviality actually happened on:-
(a) the land on which controlled waste is treated,
(b) the land on which controlled waste is kept,
(c) the land in or on which controlled waste is deposited,
(d) fixed plant by means of which controlled waste is treated

Was this at a location for treating contolled waste ?
Not in the slightest, it was a car park.

The cases linked by sarah seems to me to be a perfect example of poor legal representation coupled with a lack of knowledge and resolve on the part of the victim.
Something councils rely upon all the time to prise money from people and to make PR. Frankly, such behaviour disgusts me, it is reprehensible and a complete abrogation of their duty.

You may not have such confidence and so I advise checking you car insurance ti see if you have legal protection. If you do then use it but make sure the solicitor you speak to, and make sure it is a solicitor not.some cheap 'para-legal', is fully briefed on the EPA.
Never forget that fifty percent of solictors are below average.

Also if it was me being pursued for this event in a car park I would write to the council asking them why they are treating controlled waste in a public car park and ask for a copy of the license etc. they cannot comply of course but it shows the absurdity of their case.
This may also be something you may not wish to do, I would not hesitate.

I welcome comments from my learned colleagues who post on here.

Pnx

Thanks again for your reply Coblcris, Ill take your advice and just leave it be there are several points that im sure will work in my favour, firstly their letter states should i fail without reasonable excuse to comply with the notice. Yes i can ignore it as only section 172 of the road traffic act that says i have to disclose the driver and only to or anyone acting on behalf of chief of police. they are not police also the carpark im sure does not form part of the highways act.

Surely for point 2 they have to inform me which part of the act the alleged offence took part on, they only mention section 71(2) for the identification purpose and 71(3) for the penalty, nowhere does it say for example : you were witnessed dropping a cigarette end which is in breach of EPA section 12 . 3 (b).

Surely if thats the route everything is based on and they try to instigate magistrate court action - can i use section 3.1 of the protocols of the ministry of justice as they not specified an exact breach of act.

http removed from start as cannot post links !!! rest of link correct

justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_protocol.htm

Coblcris

In my opinion they are deliberately avoiding mentioning the 'offending' section. That would expose their shame for what it is.
You cannot apply one Section of a statute to another as they are attempting.
By all means fight on, it is your decision. Take note of my comments about the Magistrate's Courts, what goes on there is often not 'best practice' in my opinion. If it goes to such a venue you will be well advised to have good representation so as to keep the Court 'focussed'. That or let them find what they may and if they find wrongly, by which I mean for the Council,, then appeal to a Court of record. ARe you prepared for this should it be needed ?

What I post on this forum is for discussion puposes only and does not constitute legal advice.