david armstrong, ll.b. - east midlands councils · david armstrong 10 ... that may affect its...

David Armstrong, LL.B.Barrister at Law.

[email protected]

[email protected]

David Armstrong www.mallard-consultancy.co.uk 1

mailto:[email protected]

mailto:[email protected]

CRASBO to CBO

ASBO and ASBI to Injunction

DCO, LCN to Community Protection Notice

DCO, LCN, SLCN to Public Space Protection Order


What are we doing?

What is going well?

What snags have we experienced?


LCN1 letters issued: 200


Notices: 25

FPN’s issued: 10




Notices: 39

FPN’s issued: 6


From Nov 2014 - Sept 2015

For the street waste project – mainly high turnover tenancies: 1 S.4 PDPA 379 S.46 EPA 263 S.43 CPWN 26 S.43 CPN

For dog control –

4 S.43 CPWN 1 S.43 CPN

For general ASB (also in partnership with the Police) -

12 S.43 CPWN 5 S.43 CPN

Total = 279 CPWN’s & 32 CPN’sTo date - ZERO breaches


329 x CPW’s

35 x CPN’s

4 x FPN’s

6 CBO’s

21 PSPO’s

1 Closure Order


Dominic Blackburn, Community Safety Manager:

“Dave,

Overzealous?

Enthusiastic!

501 CPW’s 78 CPN’s 7 Prosecutions

That’s 98.6% Success rate

Unbelievable“


Seized a dog on breach of CPN

CBO granted on conviction, requiring dog to be muzzled, etc.


Section 1 - Power to grant injunctions A court may grant an injunction under this section against a person aged 10 or over (“the respondent”) if two conditions are met: ◦ The first condition is that: the court is satisfied on the balance of probabilities, that the

respondent has engaged or threatens to engage in conduct capable of causing - nuisance or annoyance to any person as a resident (“anti-

social behaviour”) – conduct includes failure to act Harassment, alarm or distress (all other cases)

◦ Second condition – “just and convenient”.


The traveller injunction

Business related nuisance


Applicants may be LA, Police, BTP, EA, housing provider, health service or TFL – must inform any body thought appropriate unless without notice

Jurisdiction is with county or high court – or youth court for under 18’s (must inform YOT unless without notice)

Order period must be specified and not exceed 12 months for under 18’s

Order may be for a specified period or until further Order otherwise

May be against individuals or organisations


Court may make a CBO on 2 conditions - (1) the court is satisfied the offender has

engaged in behaviour that caused or was likely to cause harassment, alarm or distress to one or more persons.

(2) the court considers the order will helpin preventing the offender from engaging in such behaviour.

CBO may prohibit doing anything or require the offender to do something.


CBO for under 18 must be for a fixed period of—◦ (a) not less than 1 year, and ◦ (b) not more than 3 years.

CBO over 18 must be for —◦ (a) a fixed period of not less than 2 years, or ◦ (b) an indefinite period (so that the order has effect

until further order).

The Order may specify periods for which particular conditions have effect.


A person who without reasonable excuse— (a) does anything he or she is prohibited from

doing by a criminal behaviour order, or (b) fails to do anything he or she is required

to do by a criminal behaviour order.

commits an offence — Summary: imprisonment for a period not

exceeding 6 months or a fine, or both; Indictment: imprisonment for a period not

exceeding 5 years or a fine, or both.


The defendant must not:

Enter any premises licensed for the receipt of scrap metal.

Request scrap metals from any persons.

Have possession or control of anything that becomes scrap metal, other than incidental to its disposal by way of a waste receptacle provided for that purpose by the principal litter authority.

Carry out collections of waste from residential or commercial premises, whether directly, indirectly, by himself or by or in concert with others.

Cause, directly or indirectly, whether by himself or by or with others harassment, alarm or distress to any person by way of intimidation, violence or threat of violence.


Carrying any waste in any vehicle he controls without the appropriate waste carriers licence.

Advertising any waste clearance services unless he has the appropriate waste carriers licence.

Loading any waste in any vehicle (other than his own waste from his own property) unless he is employed by a licenced company.

Entering a known high risk area.


Authorised person (constable / person appointed by local authority) may issue CPN to person over 16, or a body, if satisfied —

(a) the conduct of the individual or body is having a detrimental effect, of a persistent or continuing nature, on the quality of life of those in the locality, and

(b) the conduct is unreasonable.

CPN may contain: (a) a requirement to stop doing things; (b) a requirement to do specified things; (c) a requirement to take reasonable steps to achieve

specified results.

Must give a written warning first and inform any person or body considered appropriate


1. Secure the removal of all items of waste and other unsightly items from land in the open air at the premises by no later than . The requirement to remove wastes shall not apply to such wastes as are lawfully secured in containers at the premises in accordance with the written requirements of the local waste collection authority.

2. Notwithstanding the first requirement, you shall monitor the premises under your management and control at a frequency of no less than per month / week and secure the removal of wastes found to be present at the premises from all land in the open air as soon as practicable and without delay wherever any such wastes are found to be present. The requirement to remove wastes shall not apply to such wastes as are lawfully secured in containers at the premises in accordance with the written requirements of the local waste collection authority.

3.Do not allow the premises under your control to deteriorate to the extent that such premises become detrimental to the quality of life of others in the locality, whether by reason of presence of waste, unreasonable accumulation of unsightly items, or otherwise.


3. Provide no less than days written notice to the Council, addressed to , specifying any works proposed to be carried out at the premises that may affect its external visual appearance or require the storing of materials on land in the open air at the premises

4. Do not carry out any works not currently being undertaken to the exterior of the premises or to the land at unless prior written notice has been given to the Council in accordance with condition 3 above.


CPN Warning – can it be challenged?

CPN – use to avoid nuisance associated with unlawful business

CPN vs Stat Nuisance – odours not considered to be a statutory nuisance. CPN available?

CPN – use to avoid evidential difficulty in domestic fly tip cases

CPN – getting the drafting right. Watch your conditions and dates


Lord Steyn:“Hearsay evidence will often be of crucial importance. Hearsay evidence, depending on its logical probativeness, is quite capable of satisfying the requirements of Section 1 (BEYOND REASONABLE DOUBT)”

x SOURCES x DIVERSITY x CORROBORATION (LINKAGE)= WEIGHT (logical probativeness)


Dennis Rye Ltd v Bolsover District Council [2013] EWHC 1041 (Admin):

The Administrative Court held that there was evidence of a complaint from someone adversely affected albeit that person had not given oral testimony. Moreover, it was not necessary for the evidence to come directly from a person adversely affected. There were a number of witnesses with the relevant expertise and experience who could draw conclusions as to the effect of burning and the creation of smoke such as would give rise to a nuisance.


The Government reports that 5,500 people convicted in magistrates’ courts of littering in 2013, and the average fine was £140.

However, because of the costs associated with going to court, most local authorities, who are responsible for enforcing this legislation, seek instead to impose a fixed penalty notice (FPN) for littering, which is a civil matter. The current FPN for litter is between £40 and £80, with the average fine being £75.

This compares to estimates of between £717 and £850 million spent on removing litter.


The Anti-Social Behaviour, Crime and Policing Act came into force in October 2014… empowers local authority officers to issue Community Protection Notices (CPNs) against people who drop litter. They can also issue a CPN where litter has accumulated and is considered to be causing a problem for the community. The Government explained:

CPNs are intended to enable these authorities to deal with particular, on-going problems or nuisances, (including accumulations of litter on public or private land) which negatively affect the community’s quality of life, by targeting the person responsible. The notice will direct the individual, business or organisation responsible to stop causing the problem. The test will be that the local authority or police officer believes the behaviour is detrimental to the local community’s quality of life, unreasonable, and persistent.


Section 34, Public Health Act 1961 (1)If it appears to a local authority that there is on any land in the

open air in their area any rubbish which is seriously detrimental to the amenities of the neighbourhood, the local authority may, subject to the provisions of this section, take such steps for removing the rubbish as they may consider necessary in the interests of amenity.

Godfrey v Conwy County Borough Council [2000] EWHC Admin 443 Did it materially and unreasonably detract from their enjoyment of

the property? Was the noise an unreasonable interference with the use and enjoyment by Mr Farey and Miss Coats of their land?” –Held: noise need not exceed background levels if it was intrusive and irritating for any significant time to an objective person.

Statutory Guidance – example: man playing loud music in the park.


Conduct on, or affecting, premises that a particular person—

owns, leases, occupies, controls, operates, or maintains,

is treated as conduct of that person.

Conduct on, or affecting, premises occupied by a government department is treated as conduct of the Minister.

Unless the above cannot reasonably be expected to control or affect that conduct.


That the conduct specified — (a) did not take place, (b) has not had a detrimental effect on the

quality of life of those in the locality, (c) has not been of a persistent or

continuing nature, (d) is not unreasonable, or (e) is conduct that the person cannot

reasonably be expected to control or affect.

Appeal to Magistrate – 21 days – power to quash, uphold or vary


A person issued with a community protection notice who fails to comply with it commits an offence.

A person guilty of an offence under this section is liable on summary conviction to a fine of up to level 4 for an individual or up to £20,000 (now unlimited, as per all offences punishable by £5,000 or more), in the case of a body.


A court before which a person is convicted of an offence may make whatever order the court thinks appropriate for ensuring that what the notice requires to be done is done.

An order under may in particular require — (a) specified work, or (b) person to allow specified work to be

carried out by a local authority.


Court may order forfeiture of any item used in breach of CPN

JP may issue warrant if grounds to suspect — (a) that an offence has been committed, and (b) that there is an item used in the commission of

the offence on premises specified in the information.

Warrant authorises any constable to enter the premises within 14 days from the date of issue of the warrant to seize the item.

A constable may use reasonable force, if necessary, in executing such a warrant.


FPN amount is up to £100 – 2 amounts may be specified for early payment

14 days to pay

Payment is to the relevant local authority, even if issued by constable or PCSO.


Existing LCN and SLCN’s and defacement removal notices are unaffected (as are litter abatement notices but who ever used them?)

New CPN’s may issued in the first 3 months after commencement may be issued in respect of behaviour prior to commencement if its terms could have been included in any of the above


Terms of a CPN issued for nuisance issue arising from business use:

Refrain from parking commercial vehicles, private cars and lorries on the pavements and grass verges to the front of X and on any pavements and / or verges included on the map 1 attached with this warning.

Refrain from the receipt of any commercial deliveries relating to Y and any other business of which you are associated to the address at X, other than small parcels or other such small items in such quantitites that may be expected to be delivered in the ordinary course of post.

Refrain from the burning of any waste on land in the open air at the property at X.

Refrain from allowing excessive build up of business related waste, packaging and any other materials on any land in the open air within the boundary of X.

Ensure that any employees of Y and any other business of which you are associated refrain from parking cars, vans or any other vehicles, in connection with those businesses, on the pavements or verges in the streets surrounding X as included on map 2 attached.


A local authority may make a public spaces protection order if satisfied on reasonable grounds that two conditions are met.

The first condition is that— (a) activities carried on in a public place within the authority’s area

have had a detrimental effect on the quality of life of those in the locality, or

(b) it is likely that activities will be carried on in a public place within that area and that they will have such an effect.

The second condition is that the effect, or likely effect, of the activities—

(a) is, or is likely to be, of a persistent or continuing nature, (b) is, or is likely to be, such as to make the activities unreasonable,

and (c) justifies the restrictions imposed by the notice.


The Order must identify the public place (“the restricted area”) and—(a) prohibit specified things being done in the restricted area, (b) require specified things to be done by persons carrying on specified activities in that area,Or both.

The Order may be framed—(a) so as to apply to all persons, or only to persons in specified categories, or to all persons except those in specified categories; (b) so as to apply at all times, or only at specified times, or at all times except those specified; (c) so as to apply in all circumstances, or only in specified circumstances, or in all circumstances except those specified.


PSPO – using the shift from civil to criminal and re-visiting gating orders

PSPO – can the authority restrict what may be a reasonable excuse?

PSPO - examples


A local authority making a public spaces protection order must before consult—

(a) the chief officer of police, and the local policing body, for the police area that includes the restricted area;

(b) whatever community representatives the local authority thinks it appropriate to consult.

The PSPO must be publicised as required by S of State

The PSPO lasts for a maximum of 3 years and needs to be renewed – there must be continuing grounds and consultation with police and other persons as appropriate

May not prohibit consumption of alcohol for premises where licensing for would apply, and similar conditions reproduced for Orders restricting highway access as previously for Gating Orders


Interested person may apply to the High Court to question the validity of a public spaces protection order.

“Interested person” means an individual who lives in the restricted area or who regularly works in or visits that area.

The grounds are— (a) that the local authority did not have power to make the

order, or to include particular prohibitions or requirements imposed by the order;

(b) that a requirement under this Chapter was not complied with in relation to the order.

An application must be made within the period of 6 weeksbeginning with the date on which the order is made.


It is an offence for a person without reasonable excuse— (a) to do anything that the person is prohibited from doing by

a public spaces protection order, or (b) to fail to comply with a requirement to which the person is

subject under a public spaces protection order.

A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

A person does not commit an offence by failing to comply with a prohibition or requirement that the local authority did not have power to include in the public spaces protection order – appeal type challenge as defence.


FPN up to £100.

Fine up to £1,000.


A police officer of at least the rank of inspector, or the local authority, may issue a closure notice if satisfied on reasonable grounds—

(a) that the use of particular premises has resulted, or (if the notice is not issued) is likely soon to result, in nuisance to members of the public, or

(b) that there has been, or (if the notice is not issued) is likely soon to be, disorder near those premises associated with the use of those premises,

and that the notice is necessary to prevent the nuisance or disorder from continuing, recurring or occurring.

A closure notice is a notice prohibiting access to the premises for a period specified in the notice.


The maximum period that may be specified in a closure notice is 24 hours except –

The maximum period is 48 hours— (a) if, in the case of a notice issued by a police officer, the

officer is of at least the rank of superintendent, or (b) if, in the case of a notice issued by a local authority, the

notice is signed by the chief executive officer of the authority or a person designated by him or her for the purposes of this subsection.


An application must be heard by the magistrates’ court not later than 48 hours after service of the closure notice.

The court may make a closure order if it is satisfied—◦ (a) that a person has engaged, or (if the order is not made) is

likely to engage, in disorderly, offensive or criminal behaviour on the premises, or

◦ (b) that the use of the premises has resulted, or (if the order is not made) is likely to result, in serious nuisance to members of the public, or

◦ (c) that there has been, or (if the order is not made) is likely to be, disorder near those premises associated with the use of those premises,

and that the order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring.

The period may not exceed 3 months.


david armstrong, ll.b. - east midlands councils · david armstrong 10 ... that may affect its...

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