Spitting image – Pickles’ month in the media

You’ve got to hand it to Eric Pickles – he certainly keeps busy, even during the traditionally quiet summer recess. During July he made national news for his advocacy of allowing shoppers to park briefly on double yellow lines without risk of a fine, as a measure to revive town centres – a stance that seems to have earned him an invitation to appear on Top Gear. At the same time, his name has appeared in the waste trade press more frequently than most people’s bins are collected, lending his support to a number of new policy initiatives.

Spitting the difference

Fines have been much on his mind, although interestingly neither of the policies that he has associated his name with originate with his department. On one hand, he has offered DCLG’s backing for a proposed LB Enfield byelaw that would make it an offence to spit in the street “without reasonable excuse”, on pain of a penalty, variously reported at £80 and up to £5,000. On the other, he has come out strongly behind the new draft Deregulation bill (which comes from Ken Clarke’s office). He described the bill as ensuring that “householders are no longer be penalised by their council if they accidentally put their rubbish out early or put the wrong item in the wrong bin”.

Perhaps I’m not the only one to get a sense of déjà vu – didn’t 2011’s Localism Act scrap bin taxes? Well, reading more deeply, the Localism Act only repealed sections of the Climate Change Act 2008 that gave councils the powers to charge families that overfilled their bin, or to set extra tariffs for taking away waste. The new Deregulation bill sets out to apply the pinking shears to s.46 of the venerable if much amended Environmental Protection Act 1990.

Under the bill, it would no longer be a criminal offence to use bins of the wrong size, to put them in the wrong place for collection, or to put the wrong things in them. Instead, councils will be able to issue a civil fixed penalty notice – provided they first issue written warnings, and that the council is satisfied that the householder is causing a nuisance or disamenity to the locality.

Managing expectorations: will Pickles’ backing help Enfield’s proposed new byelaw succeed? Photo by By Joppo Kelin, via Wikimedia Commons.

The contrast with his attitude towards Enfield’s spitters is striking. I don’t want to be thought of as part of a pro-spitting lobby (it’s not something I’d ever do myself) and as ‘civil liberties’ go, the right to spit seems unlikely to be a campaign that will catch on. If 4,000 residents of Enfield have petitioned the council to ban spitting, that in itself is a reason for the council to consider a byelaw. But the council should also consider that the clean-up costs of spitting on the pavement are minimal, the health risks appear vanishingly small, and what people find disgusting is not set in evolutionary stone but the product of some interesting social and linguistic conventions. Perhaps residents may also consider the plight of people who accidentally spit on the street whilst aiming for a handkerchief or tissue in a lawful manner, or whether they wish to be obliged to swallow a fly rather than spit it out! There will often be reasonable – and hard to disprove – excuses that someone accused of unlawful spitting could make.

It is interesting how Pickles’ instincts regarding council penalties push in opposite directions on these issues – why should fines be OK for spitters, but unacceptable for waste system abusers. Unlike spitting, poor waste management by householders imposes real costs on councils.  Enforcing collection policies that help keep costs for all taxpayers down is becoming considerably more complicated for local authorities – which may have rather greater consequences than a bit of phlegm on the pavements of Enfield.

Media studies

Perhaps Mr Pickles’ most notable intervention concerns the “sneaky” practice by some local authorities of charging landlords of student accommodation for waste collections. Under the Controlled Waste Regulations 2012 (CWR2012), waste from “Domestic property used in the course of a business for the provision of self-catering accommodation” is considered commercial waste. It appears that some authorities have interpreted this to apply to student accommodation. Certainly, having spoken with a couple of authorities, Eunomia quickly found evidence of differing approaches, with some authorities much more ready than others to regard waste from properties occupied by students as commercial rather than household waste.

However, in a joint letter to local authorities, ministers Lord de Mauley (of Defra) and Brandon Lewis (DCLG) have said:

“It has never been the Government’s intention to include waste from students, or any privately rented domestic property, in this description of self-catering accommodation….Our intention was to permit charging in cases of the provision of accommodation for individuals whose sole or main residence is elsewhere.”

The letter threatened some dire consequences for authorities that persisted in imposing charges:

“Local authorities who charge may also be liable to legal challenge, investigation by the Local Government Ombudsman and/or a formal complaint to the local auditor for ultra vires charging.”

A welcome clarification? Not quite. Local government representatives have already hit back, complaining of the costs of collecting waste from students, who are exempt from council tax and often characterised as reluctant and haphazard recyclers. They have also branded the rules confusing, and the joint letter doesn’t help much. It correctly observes that council tax status of students is irrelevant to the issue of charging, but then muddies the water by seeking to rest the question of whether charging is allowed on whether the Valuation Office Agency (VOA) classifies premises as domestic or commercial.

Hall or nothing

As I’ve discussed elsewhere, the VOA classification does determine whether a property produces commercial or household waste. However, under the CWR2012, the fact that waste is classified as ‘household’ isn’t the final arbiter of whether it can be charged for. For example, waste from an educational establishment is categorised as part of the household waste stream, but councils can charge for both its collection and disposal. So waste from most university halls of residence can be subject to a charge.

Equally, a privately rented house (of whatever size) occupied by students is a reasonably clear case. Like any other rented house in the street it is domestic premises, and neither the fact that the landlord may run it as a business, nor the exemption of the students from council tax, changes the council’s obligation to collect the waste.

However, if a student hall of residence is run privately, on land not owned by the university, it would appear not to be “part of an educational establishment”. Indeed, it is run privately as a business – just like a holiday let or a hotel. Nevertheless, if classified as domestic property it will be treated exactly the same as the rented house. The joint letter indicates that the waste produced by its residents is classified as household – but is it right to conclude it cannot be charged for?

The situation remains complicated, thanks to our old friend s.46. Subsection (1) allows local authorities to “require the occupier to place the waste for collection in receptacles of a kind and number specified”, while subsection (11), inserted by the Climate Change Act and spared the knife under the Localism Act, says, “A waste collection authority is not obliged to collect household waste that is placed for collection in contravention of a requirement under this section”.

In other words, the council is obligated to collect household waste free of charge – but only the amount that will fit into the normal containers given to households. Any additional amount is discretionary and may be charged for. Oxford City Council seems to adopt this policy in relation to Houses in Multiple Occupation, as well as requiring that all landlords of HMOs must ensure that there are at least as many recycling bins as waste bins available for residents. The joint letter seems not to take account of this.

I’m sure that Eric Pickles will feel he has had a good July, putting himself on the right side of several issues that resonate with large sections of the population (along with Jeremy Clarkson). The truth, as ever, is a bit more complicated. On spitting, he’s backing penalties that may be popular but have few tangible benefits; on bins, his aversion to fines risks undermining recycling performance and imposing extra costs on councils; and on students, his department is issuing advice that misses the point and leaves councils free to charge extra for household waste that exceeds the allotted capacity. Perhaps he should just have gone on holiday…