First-tier Tribunal (General Regulatory Chamber)

 

 

 

 

First-tier Tribunal

General Regulatory Chamber

Environment

 

Appeal Reference: NV/2020/003/P

 

 

 

 

Between

 

FATHIMA RIYALDEEN

Appellant

and

 

LEICESTER CITY COUNCIL

Respondent

 

 

Before

 

 

Tribunal Judge MOIRA Macmillan

Determined on the papers, the Tribunal sitting in Chambers on 13 May 2020

 

 

 

 

 

Decision

 

 

1.      The appeal is allowed.

 

2.      The Fixed Penalty Notice BH12349 dated 29 November 2019 is withdrawn.

 

 

 

 

 

 

 

MODE OF HEARING

 

3.      The parties and the Tribunal agreed that this matter was suitable for a determination on the papers in accordance with rule 32 of the Chamber Procedure Rules.

 

4.      The Tribunal considered an agreed open bundle of evidence comprising pages 1 to 55.

 

 

Reasons

 

            Background

 

1. This appeal is against a Fixed Penalty imposed by the Respondent in relation to a household waste wheelie bin.

 

2. The bin in question belongs to 63 Tewkesbury Street, Leicester. The Appellant is one of two occupiers of this address.

 

3. The Respondent is a waste collection authority under the Environmental Protection Act 1990. As such it is able to regulate the times at which household waste bins are left out for collection. On 22 October 2019 it served a Notice of Contravention, because a wheelie bin was left on the street outside the permitted time. The Respondent subsequently served a Notice  of Intent on 29 October 2019 and a Fixed Penalty Notice on 29 November 2019.

 

Law

 

4. S. 46 of the Environmental Protection Act 1990 allows a waste collection authority to impose requirements relating to the placement of bins (‘receptacles’) that are used to collect household waste.

 

46 Receptacles for household waste.

 

(1)   Where a waste collection authority has a duty by virtue of section 45(1)(a) above to arrange for the collection of household waste from any premises, the authority may, by notice served on him, require the occupier to place the waste for collection in receptacles of a kind and number specified.

 

(1A) Where—

(a) subsection (1) applies to a waste collection authority, and

(b) a waste reduction scheme under Schedule 2AA to this Act is in operation in the authority's area,

the authority may require the occupier to place the waste for collection in receptacles identified by such means as may be specified.

 

(1B) A requirement under subsection (1A)—

(a)    must be imposed by notice served on the occupier;

(b)    may be imposed instead of, or in addition to, any requirement imposed on the occupier under subsection (1).

 

(2)   …

 

 

(3)   …

 

(4)   In making requirements as respects receptacles under subsection (1) above, the authority may, by the notice under that subsection, make provision with respect to—

(a)    …

(b)    the placing of the receptacles for the purpose of facilitating the emptying of them, and access to the receptacles for that purpose;

(c)    the placing of the receptacles for that purpose on highways or, in Scotland, roads;

(d)   …

(e)    the steps to be taken by occupiers of premises to facilitate the collection of waste from the receptacles.

(f)     The removal of the receptacles placed for the purpose of facilitating the emptying of them; and

(g)   the time when the receptacles must be placed for that purpose and removed.

 

(5)   No requirement shall be made under subsection (1) above for receptacles to be placed on a highway or, as the case may be, road, unless—

(a)    the relevant highway authority or roads authority have given their consent to their being so placed; and

(b)    arrangements have been made as to the liability for any damage arising out of their being so placed.

 

5. Where a person fails without reasonable excuse to comply with a requirement imposed under s. 46, and where the authority assesses that this failure either causes a nuisance, or is detrimental to local amenities, the authority may issue a written warning pursuant to s. 46A. This must be served upon the person; must identify the requirement the person has failed to comply with; and must explain the consequences should they continue not to comply (s. 46A(1),(3) & (4))

 

s. 46A Written warnings and penalties for failure to comply with requirements relating to household waste receptacles: England

E+W+S

(1) This section applies where an authorised officer of a waste collection authority in England is satisfied that—

(a) a person has failed without reasonable excuse to comply with a requirement imposed by the authority under section 46(1), (3)(c) or (d) or (4) (a “section 46 requirement”), and

(b)the person's failure to comply—

(i) has caused, or is or was likely to cause, a nuisance, or

(ii)has been, or is or was likely to be, detrimental to any amenities of the locality.

 

(2) Where this section applies, the authorised officer may give a written warning to the person.

 

(3) A written warning must—

(a) identify the section 46 requirement with which the person has failed to comply,

(b) explain the nature of the failure to comply,

(c) explain how the failure to comply has had, or is or was likely to have, the effect described in subsection (1)(b),

(d) if the failure to comply is continuing, specify the period within which the requirement must be complied with and explain the consequences of the requirement not being complied with within that period, and

(e) whether or not the failure to comply is continuing, explain the consequences of the person subsequently failing to comply with the same or a similar section 46 requirement.

 

6. Should the person not comply with the requirement following a written warning, the authority may impose a Fixed Penalty pursuant to s. 46A(4). The authority must first serve a Notice of Intent, which must explain why the Fixed Penalty is being imposed. The Notice of Intent must allow the person 28 days in which to make representations about why payment of the Fixed Penalty should not be required. The authority must consider any representations made before serving the Penalty Notice, which must be followed by a Final Notice informing the person of their right to appeal.

 

46C Penalties under section 46A: Procedure regarding notices of intent and final notices

E+W+S

(1)   Before requiring a person to pay a fixed penalty under section 46A, an authorised officer must serve on the person notice of intention to do so (a “notice of intent”) in accordance with subsections (2) to (4).

 

(2)   A notice of intent must contain information about—

(a) the grounds for proposing to require payment of a fixed penalty,

(b) the amount of the penalty that the person would be required to pay, and

(c)the right to make representations under subsection (3).

 

(3)   A person on whom a notice of intent is served may make representations to the authorised officer as to why payment of a fixed penalty should not be required.

 

(4)   Representations under subsection (3) must be made within the period of 28 days beginning with the day service of the notice of intent is effected.

 

(5)   In order to require a person to pay a fixed penalty under section 46A, an authorised officer must serve on the person a further notice (the “final notice”) in accordance with subsections (6) to (8).

 

(6) A final notice may not be served on a person by an authorised officer before the expiry of the period of 28 days beginning with the day service of the notice of intent on the person was effected.

 

(7) Before serving a final notice on a person, an authorised officer must consider any representations made by the person under subsection (3).

 

(8) The final notice must contain information about—

(a) the grounds for requiring payment of a fixed penalty,

(b) the amount of the penalty,

(c) how payment may be made,

(d) the period within which payment is required to be made (which must not be less than the period of 28 days beginning with the day service of the final notice is effected),

(e) any provision giving a discount for early payment made by virtue of section 46B(2),

(f) the right to appeal under section 46D, and

(g) the consequences of not paying the penalty.

 

7. The right of appeal is created by s. 46D:

 

46D Appeals against penalties under section 46AE+W+S

 

(1)   A person on whom a final notice is served under section 46C may appeal to the First-tier Tribunal against the decision to require payment of a fixed penalty.

 

(2)   On an appeal under this section the First-tier Tribunal may withdraw or confirm the requirement to pay the fixed penalty.

 

(3) The requirement to pay the fixed penalty is suspended pending the determination or withdrawal of the appeal that is the final appeal made by the person against the decision to require payment of the penalty.

(This is subject to subsection (4).)

 

(4) Where the requirement to pay the fixed penalty is confirmed at any stage in the proceedings on appeal, payment must be made before the end of the period of 28 days beginning with the day on which the requirement is so confirmed unless the person makes a further appeal before the end of that period.

 

(5) The reference in subsection (4) to the requirement to pay the fixed penalty being confirmed on appeal includes a reference to an appeal decision confirming the requirement to pay the fixed penalty being upheld on a further appeal.

 

Facts

 

8. The Respondent has decided that Tewkesbury Street  is detrimentally affected by wheelie bins being left on the pavement outside of normal household waste collection times. The collection day for Tewkesbury Street is Thursday. The Respondent has therefore issued a Notice under s. 46, requiring wheelie bins to be placed at the kerb no earlier than 7pm on Wednesdays and to be removed by 7am on Fridays.

 

9. An officer of the Respondent authority visited Tewkesbury Street on Monday 16 September 2019 and on Monday 21 October 2019, and on both occasions took photographs of a wheelie bin marked with the number ‘63’ on the pavement. On 16 September 2019 the Respondent issued a warning notice to the Appellant’s address. Having consulted council tax records, on 22 October 2019 the Respondent posted a s. 46 Contravention Notice to the Appellant, and a second Notice addressed to her partner, both of which were sent to ’63 Tewkesbury Street, Leicester, LE3 5HQ’.

 

10. On Tuesday 29 October 2019 the Respondent returned to Tewkesbury Street and again photographed the wheelie bin marked ‘63’ on the pavement. On the same date the Respondent sent the Appellant a Notice of Intent, which notified her that she had 28 days to make representations about the imposition of a Fixed Penalty.

 

11. The Appellant contacted the Respondent by telephone and explained that she was unable to remove her wheelie bin from the street. This was because she did not have a key to the gate to a shared alley, which provided the only access from the street to the rear of her house. The Respondent gave the Appellant a telephone number of a council department which might be able to assist in getting a key. The Respondent also advised the Appellant to contact her landlord and neighbours, to ask for a spare key or to make a copy.

 

12. On Tuesday 26 November 2019 the Respondent again photographed the bin marked ‘63’ on the pavement of Tewkesbury Street. On 29 November 2019 the Respondent sent the Appellant a Fixed Penalty Notice.

 

13. No further representations having been received, on 18 December 2019 the Respondent imposed a Fixed Penalty of £80 on the Appellant in connection with the bin for 63 Tewkesbury Street, by way of a Final Notice served by post to the same address.

 

Grounds of Appeal

 

14. In a Notice of Appeal dated 17 January 2020, the Appellant submits that she did not receive the initial warning notice, but contacted the Respondent having received the Compliance Notice to explain that she did not have a key for the gate of the communal alley way. The Appellant submits that all of the gates are kept locked and that she, like the majority of residents, does not have a key, which is why bins are left on the street.

 

15. The Appellant submits that she called the telephone number several times but was unable to contact the council department the Respondent directed her to. She states she also contacted the estate agent, and was told they did not have a key.  The Appellant submits that she also spoke to many of her neighbours, all of whom either refused to lend her a key to copy, or said they did not have one.

 

16. The Appellant states that she has only found the gate unlocked on one occasion, and used the opportunity to take the bin to the rear of her house. Thereafter the gate was locked again, which left the Appellant unable to take the bin out for collection. She eventually resorted to wheeling the bin through her house.

 

17.  The Appellant contends that she has done everything reasonable to rectify the situation. She submits that the bin has become a source of stress, that she keeps it by the wall on the street to minimise the obstruction  and that she would be happy to move the bin after collection if given a means of doing so. She requests the Respondent’s assistance in resolving the issue.

 

18. The Respondent submits that the Appellant was given advice on how to obtain a key for the gate and that there is no record of her contacting the telephone number given.

 

Decision

 

19. The Appellant has explained her difficulty in complying with the Respondent’s requirements. She made similar representations to the Respondent on receipt of the Notice of Intent, and has followed the advice she was given by the Respondent, albeit without success.

 

20. The Appellant submits that she did not receive the Penalty Notice for some weeks as she was away due to a family bereavement. I accept this explanation, and find on the balance of probabilities that this is why the Appellant failed to renew her representations to the Respondent before the Final Notice was issued.

 

21. I have considered whether, in the absence of a key to the gate, it is reasonable to expect the Appellant to wheel her bin through her house. I conclude that it is not.

 

22. Having considered the steps the Appellant has taken to obtain a key, I find that her inability to use the alley way amounts to a reasonable excuse for her failure to comply with a requirement imposed by the Respondent under section 46(3)(d).

 

23. The requirement to pay the Fixed Penalty Notice is therefore withdrawn.

 

 

 

Signed:

Judge Moira Macmillan

 

Date:

13 May 2020