Jayantikaben G Patel v Leicester City Council

The Appellant appeals against the requirement to pay a fixed penalty of £80 imposed by the Respondent in relation to an alleged failure to comply with a notice served under section 46 of the Environmental Protection Act 1990 (“the Act”). 

Section 46 of the Act provides that a waste collection authority may serve a notice (a section 46 notice) requiring an occupier to place waste for collection in receptacles of a kind and number specified. It may also impose requirements as to the placing of receptacles and steps to be taken by the occupier to facilitate waste collection. 

Section 46A of the Act provides that where a waste collection authority is satisfied that a person has without reasonable excuse failed to comply with a section 46 notice and the person’s failure to comply has caused or is likely to cause a nuisance or has been or is likely to be detrimental to any amenities of the locality, they may give a written warning to the occupier of the relevant property. Subsection (3) makes provision as to the content of the written warning. 

Subsection (4) provides that where a written warning has been served, the waste collection authority may require the person to pay a fixed penalty to the authority if satisfied that the person has failed to comply with the section 46 requirement identified in the warning within the period specified. Subsection (7) provides that where a written warning has been given a requirement to pay a fixed penalty may be imposed if within one year of the date the written warning was given, the person has again failed without reasonable excuse to comply with the section 46 requirement identified in the warning and the failure to comply has had or is likely to have the consequences described. 

Section 46C of the Act requires that before a requirement to pay a fixed penalty can be issued, a notice of intent must be served. This must set out the grounds for requiring payment of a fixed penalty; the amount that would be required to be paid; and the right to make representations as to why payment of a fixed penalty should not be required. It provides that a final notice must be served not before 28 days after the notice of intent. The final notice must contain the grounds for requiring payment of a fixed penalty; the amount of the fixed penalty; details of how payment should be made; notice of the right of appeal; and the consequences of not paying the fixed penalty. 

Pursuant to section 46D a person served with a fixed penalty final notice may appeal to the First-tier Tribunal. On appeal the tribunal may withdraw or confirm the requirement to pay a fixed penalty. The requirement to pay the fixed penalty is suspended pending determination of any appeal. 

It is for the respondent to show on the balance of probabilities that subsection 46A(1) is satisfied. If so, the appellant may raise a reasonable excuse. If one is shown, it is then for the respondent to show that the excuse is not reasonable or should not be accepted. 

The Respondent issued a final notice to pay a fixed penalty dated 30 April 2025.  It stated that the Appellant had failed to comply with the terms of a notice issued under section 46 of the Act. The reasons given for the penalty were that the Appellant: 

The notice also included advice about the consequences of failure to pay the fixed penalty, the right of appeal and an opportunity to pay a fixed penalty notice. 

The Appellant appealed the fixed penalty notice to the Tribunal by way of form GRC1 dated 3 May 2025. She categorically denied responsibility for the bin in question, which had not been left outside her property and did not belong to her. The black wheelie bin referred to in this matter was located outside a property across the road and entirely separate from the Appellant’s property. She said the markings on the bin were faded and, at most, bear a superficial resemblance to her address when viewed from a certain angle or position, but they do not constitute clear evidence of ownership or responsibility.

She stated that she was first made aware of this issue on 7 March 2025 by email, and again on 24 March 2025. In response, she contacted the Respondent’s City Wardens, to explain that the bin was not hers and was not placed outside her property. At the point of appealing she had received no reply addressing her concerns or providing evidence.

She said that despite attempts to resolve the matter, she has continued to receive threats of enforcement and financial penalty which have caused her considerable distress and anxiety.

The Respondent opposes the Appellant’s case on the ground that it has complied with sections 46, 46A, 46B, 46C and 46D of the Act in connection with the service of the Fixed Penalty Notice which is the subject of the appeal.

It explained that wheelie bins left on the street may be a target for arson and vandalism, cause an obstruction to disabled and infirm people (especially those who are blind, partially sighted or are wheelchair users), create difficulties for parents and carers walking with young children and pushchairs (as it can force them to walk in the road) and interfere with cleansing staff street sweeping duties (resulting in a less effective service and increase in litter). They look unsightly, may be stolen and may be used illegally to dispose of other peoples’ rubbish or business rubbish.

The street in which the Appellant lives has been affected by bins being left on the street outside of normal collection times and is part of an ongoing effort by the Respondent to reduce bins on the streets, side waste and flytipping in the local area.

The Respondent provided the following chronology:

The Appellant filed a reply on 24 May 2025, providing supporting evidence. She raised the following points:

The first issue is whether the Respondent has demonstrated on balance of probabilities that the Appellant has failed without reasonable excuse to comply with a requirement imposed by the public authority under section 46. If this is satisfied, the Tribunal must then go on to consider the warning notice under section 46A and the Notice of Intent under section 46C. 

There is no evidence other than the copies of the Notices attached to the Response that the notices in question were served on the dates the Respondent states they were, such as certificates of service or witness statements verifying service. This accords with the Appellant’s case, which is that she was unaware of the issue until the notice of contravention was received on 7 March 2026. The Response is a statement of the Respondent’s case, not a witness statement verified by a statement of truth, which limits its evidential weight. As an aside, I note that the Respondent has also failed to file a bundle at all in accordance with the Tribunal’s repeated directions.

The Respondent’s evidence shows a number of photos of bins which appear to have the Appellant’s full or partial street name and number painted on the side. However, is no metadata to verify that these photographs were taken on the dates and times where the breaches are alleged or evidence to show by whom they were taken.

The evidence provided by the Appellant states that the bin with the address painted on it was reported to the Respondent as lost several years ago, since which time it appears to have been appropriated by another person. This appears to me to be a reasonable excuse not to have control of that particular bin and to now have a different, unmarked, bin

The photographic evidence provided by the Appellant as to the location of the bin in the photos is compelling, because on balance of probabilities it shows the bin was not left outside the front of the Appellant’s property but some distance away. This is consistent with the Appellant’s evidence that the bin with the address painted on it had been previously lost and appropriated by someone else, which the Respondent has not mentioned. The Respondent has not provided any evidence or submissions to show that this was not a reasonable excuse for not complying with any notice.

On the evidence before it, the Tribunal cannot therefore be satisfied it is more likely than not that the Respondent served a section 46 notice on the Appellant on or about 18 February 2025 or that the alleged contraventions of section 46 took place.  

Section 46(A)(4) of the Act states that where a written warning has been given in respect of a failure to comply that is continuing, an authorised officer of the waste collection authority may require the person to whom the written warning was given to pay a fixed penalty to the authority if satisfied that the person has failed to comply with the section 46 requirement identified in the warning within the period specified by virtue of subsection (3)(d). As the Respondent has failed to satisfy the Tribunal that a section 46 notice or written warning notice were served on the Appellant as alleged or at all, the Tribunal cannot be satisfied on balance of probabilities that the Respondent was entitled to impose a fixed penalty on the Appellant for non-compliance.  There is therefore no need to consider whether or not there was a reasonable excuse for not complying with any such notice.

Accordingly, I allow the appeal.