The Litter Etc. (Transitional Provisions) Regulations 1991

Explanatory Note

(This note is not part of the Regulations)

These Regulations make transitional provision in connection with the work carried out by local authorities in order to perform the duties imposed on local authorities and educational bodies by section 89 of the Environmental Protection Act 1990 (“the 1990 Act”).

Section 89(1) of the 1990 Act makes it the duty of (inter alia) local authorities and educational bodies to ensure that certain land under their control is kept clear of litter and refuse. Section 89(2) makes it the duty of certain local authorities to ensure that highways (or in Scotland, roads) are kept clean.

Part I of the Local Government Act 1988 (“the 1988 Act”) prohibits local authorities from carrying out work falling within certain defined activities unless they have first subjected it to competition. One of these activities – “other cleaning”, which is defined in in paragraph 3 of Schedule 1 to the 1988 Act – includes the removal of litter and the cleaning of streets.

Regulation 3 deals with the case where a local authority has arranged for an independent contractor to carry out the work of removing litter or cleaning a highway or road. In such a case the authority is to be treated as having complied with its duty under section 89 of the 1990 Act if the conditions specified in paragraph (5) are satisfied. Where a local authority has entered into such a contract in respect of the land of an educational body, that body will be similarly treated. The conditions are essentially that the contract is being properly performed and that it is not possible to renegotiate it on reasonable terms.

Regulation 4 applies where a local authority is itself already carrying out litter removal or highway cleaning work after having complied with the requirements of Part I of the 1988 Act, and is required to carry out additional work of that nature in order to comply with its duty under section 89 of the 1990 Act. In such a case, until the relevant date, the authority may carry out any such additional work without subjecting it to competition under the 1988 Act. If the cost of the additional work is more than 20% of the cost of the work already being carried out, the authority is prohibited from carrying out any “other cleaning” work on or after the relevant date, and the relevant date is ascertained in accordance with paragraph (7) by reference to the date as from which section 6 of the 1988 Act first applies to “other cleaning” work. In any other case, the relevant date is the day after the existing arrangements for carrying out “other cleaning” work expire or are otherwise terminated.

Regulations 5 and 6, which apply only to England and Wales, make provision in connection with the transfer under the 1990 Act of the duty to keep highways clean from the highway authority to the local authority.

Regulation 5 applies where the 1990 Act transfers the duty to clean a highway or road to a local authority which did not previously carry out the work of cleaning it. In such a case, until the material date, the local authority may carry out the necessary work without subjecting it to competition under the 1988 Act, but only if it has used its best endeavours to reach agreement with any independent contractor who previously carried out the work. The material date is the day after its existing arrangements for carrying out “other cleaning” work expire or are otherwise terminated.

Regulation 6 permits a local authority which was carrying out highway cleaning work before 1st April 1991 to enter into a contract to carry out that work for the local authority whose duty it is on and after that date to ensure that the highway or road is kept clean without fulfilling the conditions in section 4 of the 1988 Act.

Regulations 4, 5 and 6 also contain certain requirements relating to the accounts which are required to be kept under section 9 of the 1988 Act.