What laws really mean - public access related litter, safety and other law.

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In most countries, as in England, law is mostly created with good intentions though that need not make it all good law. There may be statute laws created by governments as well as case law or common law basically created by courts. But certainly one key function of courts is to try to ensure that governments who can make and amend laws do themselves act strictly within those laws. And often the exact meaning of a law can be unclear and may need to be argued and decided in a court. Some of this is considered below.

So numbers of areas of law may apply only to a 'public place' or only to a 'public space' or only to a 'place open to the air' or only to an 'open air space' or some similar words. This may be combined with a requirement that the law applies only if there is a legal right of 'public access' or some similar words. A law dictionary may not give word definitions that will legally hold in all cases.

Areas of law that can have some of the above requirements may include public order law, indecency law, litter law, safety law and maybe others. And each law may have somewhat different meanings for terms such as 'public'. This can easily give rise to prosecutions that are not legally correct and that may be successfully challenged in court. An interesting example to consider is litter law in England.

LEAVING LITTER IN AN OPEN PUBLIC PLACE

As of November 2008, litter law in England is dealt with by the ENVIRONMENTAL PROTECTION ACT 1990 amended by the CLEAN NEIGHBOURHOODS AND ENVIRONMENT ACT 2005. The chief relevant parts of those Acts are ;

ENVIRONMENTAL PROTECTION ACT 1990

86 Preliminary

(13) A place on land shall be treated as “open to the air” notwithstanding that it is covered if it is open to the air on at least one side.

87 Offence of leaving litter

(1) If any person throws down, drops or otherwise deposits in, into or from any place to which this section applies, and leaves, any thing whatsoever in such circumstances as to cause, or contribute to, or tend to lead to, the defacement by litter of any place to which this section applies, he shall, subject to subsection (2) below, be guilty of an offence.
(2) No offence is committed under this section where the depositing and leaving of the thing was—
(a) authorised by law, or
(b) done with the consent of the owner, occupier or other person or authority having control of the place in or into which that thing was deposited.
(3) This section applies to any public open place and, in so far as the place is not a public open place, also to the following places—
(a) any relevant highway or relevant road and any trunk road which is a special road;
(b) any place on relevant land of a principal litter authority;
(c) any place on relevant Crown land;
(d) any place on relevant land of any designated statutory undertaker;
(e) any place on relevant land of any designated educational institution;
(f) any place on relevant land within a litter control area of a local authority.
(4) In this section “public open place” means a place in the open air to which the public are entitled or permitted to have access without payment; and any covered place open to the air on at least one side and available for public use shall be treated as a public open place.

CLEAN NEIGHBOURHOODS AND ENVIRONMENT ACT 2005

Part 3 Litter and refuse
Offence of dropping litter

17 Extension of litter offence to all open places

In section 87 of the Environmental Protection Act 1990 (c. 43) (offence of leaving litter), for subsections (1) to (4) substitute—
(1) A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.
(2) This section applies to any place in the area of a principal litter authority which is open to the air, subject to subsection (3) below.
(3) This section does not apply to a place which is “open to the air” for the purposes of this Part by virtue of section 86(13) above if the public does not have access to it, with or without payment.
(4) It is immaterial for the purposes of this section whether the litter is deposited on land or in water.
(4A) No offence is committed under subsection (1) above where the depositing of the litter is—
(a) authorised by law; or
(b) done by or with the consent of the owner, occupier or other person having control of the place where it is deposited.
(4B) A person may only give consent under subsection (4A)(b) above in relation to the depositing of litter in a lake or pond or watercourse if he is the owner, occupier or other person having control of—
(a) all the land adjoining that lake or pond or watercourse; and
(b) all the land through or into which water in that lake or pond or watercourse directly or indirectly discharges, otherwise than by means of a public sewer.
(4C) In subsection (4B) above, “lake or pond”, “watercourse” and “public sewer” have the same meanings as in section 104 of the Water Resources Act 1991.


Now in England 'public land' will include most roads and pavements and parks, and on such public lands may be some structures that themselves may be or may not be 'public places' including for example a partly or fully enclosed telephone box, a locked police box, a part enclosed bus shelter, an open roadside drainage ditch, an underground road drain with occasional solid or grill drain covers, or an open-top animal enclosure. And there may be stores on private land that commonly allow the public to enter them.


police box graphic . drain graphic . telephone box graphic

bus shelter graphic . animal enclosure graphic

Different legal issues on the legal meaning of terms can often arise with charges concerning eg litter or safety for some of these kinds of places. It may be reasonable to hold that under the above law an open roadside drainage ditch is an open public place, but not reasonable to hold that an underground road drain is an open public place.

In different cases it may or may not be reasonable to argue that a 'public place' requires that the public must have a legal right to enter that place and be physically able to enter that place safely at least at some reasonable times. It may in some cases also be reasonable to argue that 'open to the air' does not include a place having a door with a keyhole through which air can access, but is really about having open access for the public to enter. And it may in some case be reasonable to argue that 'public access' to a place does not mean the public being able to see into or make some minor legal use of a place into which they do not have a legal right to enter.

It can also be that some law or laws may impact the meaning of a term in another law. Hence regarding a charge under the above law of littering an under-road drain, other laws relating to access to drains and sewers in England and Wales are principally the Water Resources Act 1991, Water Industry Acts 1991 and 1999 and the Water Act 2003.

Hence some charges under one law concerning littering or safety of some things on public land like drains or sewers, have been successfully challenged in courts and some unsuccessfully on the issue of whether the offense properly comes under that law or under another law. It may well not be acceptable to charge a murder under a theft law, or polluting under littering law, and that should be taken as a misuse of law.

NOTE. These sorts of considerations can often apply to laws generally, though of course different countries do have different laws and any law can be changed. A general issue that may also be applicable in some case lies in the fact charges are often laid by government or its agencies, who can make or change laws. Them having such special legal power, means that the proper rule of law requires courts to ensure that they especially must adhere to laws precisely. Government wrongly broadening the meaning of a law term to make more things offenses than was intended when the law was passed is misusing a law.

ARGUING THE MEANING OF A LEGAL TERM.

As the meaning of a word in law may not be its common meaning, it may be possible to argue the meaning of any term in any law. Courts generally should take as the strongest argument an argument based on the words apparent intended meaning in the particular law itself indicated by its context. But it may be reasonable in some cases to argue from a words common use or from its use in other laws - and especially in other closely related laws. In some cases charges may be legally required to use common language, though such requirement may be limited, as for Fixed Penalty Notices for leaving litter in England.

ENVIRONMENTAL PROTECTION ACT 1990
88 Fixed penalty notices for leaving litter
(3) A notice under this section shall give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence and shall state -

PS. The above is offered only as informed advice and not as definitive statement of any law.

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If you rent through a Letting Agent, then they can handle most letting law for you, but if you want more advice on UK letting laws try Landlordzone.

PS. If you are thinking of letting your property yourself, then you could also read Letting Homes USA.


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