Fly tipping and abandoned waste – a new headache for Landowners

Fly tipping is on the rise. Local Government statistics continue to show increases, as has been the trend for the last five years, with over 1 million incidents reported in 2016/171. Quantities of about the ‘size of a small van’ are most commonly dumped on highways, but there are also many incidents that occur on private land, which are not included in these figures. With the government identifying waste crime as a critical problem in its new Waste and Resources Strategy and rising disposal costs driving more waste abandonment, we can expect more attempts to enforce the law. New legislation now widens the scope for landlords to find themselves liable for fines and possibly imprisonment when their tenants dump or hold quantities of waste on their land. Fortunately, by putting the right processes in place, landowners can reduce the chances of both waste abandonment and legal action.

Recent cases where landowners fall foul of waste law

In mid-2018 a £12,850 fine, costs and compensation was imposed on a landowner, with further action pending2. This was the result of a catastrophic breach of a waste exemption starting in 2015, when the landowner, Anthony Joyner, leased part of Cockwell’s Nursery, near Totness, to Steven Loveridge and David Weeks to start a new business, Woody’s Recycling. The business operated under the waste exemption, but although wood arrived, none left, resulting in a stockpile much larger than the 1,000 tonnes permitted. This was later destroyed by fire.

Loveridge and Weeks were sentenced separately in 2018. However, action was also taken against the landowner, Anthony Joyner. He produced firewood within the recycling area and arranged for the delivery of tree stumps from another site for processing. In early 2016 Joyner locked the site after Loveridge was jailed on an unrelated offence, preventing further access, leaving 13,000 tonnes of wood and stumps on site.

On approaching another recycling company in April 2016 Joyner found that the wood had no commercial value and would cost £750,000 to remove. In May 2016 there was a blaze lasting for five days, which kept residents indoors for two days.

Key points in the case included:

  • Joyner’s use of the site himself;
  • His failure to check exemption and waste duty of care paperwork was applied; and
  • ‘Knowingly permitting the keeping of controlled waste on land in respect of which no environmental permit was in force in a manner likely to cause pollution of the environment or harm human health’.

An earlier case helped extend the understanding of what ‘knowingly permitting’ means3. The result held a director personally liable for the abandonment of 471 tonnes of waste mattresses, some 20,166 of them (Mark Stone and Salhouse Norwich Limited v Environment Agency). After the tenant, Salhouse Recyclers, ceased trading due to the imposition of an Enforcement Notice, the landlord was found to have knowingly permitted the operation of a regulated waste storage facility without an environmental permit. Key features in that case included:

  • The conclusion that waste still needs regulation, even if the body with the permit no longer exists;
  • To ‘knowingly permit’ does not require a positive act. Merely to know the waste operation was taking place and have done nothing prevent it is sufficient.

Landfill Tax Extension – Finance Bill 2017
And there may be more than clean-up costs to be considered.

The Finance Bill and Guidance4 has extended Landfill Tax to include waste at both permitted and unpermitted sites in England and Northern Ireland. If material is intentionally discarded it is likely to be considered waste and so become taxable, although a year of temporary storage is allowed before disposal or 3 years in the case of recovery/ treatment. As with the Totnes case there are two types of potential offender, the party making the deposit and the responsible party that knowingly permits or facilitates it. This could refer to a range of people; however, the landowner and any company officer could be considered.

Knowingly causing or knowingly facilitating illegal waste disposal

As a landowner, the best way to protect against being found to knowingly permit waste crime, is to take a proactive approach from the point of leasing a property, monitor activity and collaborate with the regulator should waste permits be in breach. Documentation of this process is key, as described in these few simple steps:

  • Complete due diligence to check that the waste chain is suitably authorised and regulated, including duty of care, permits, planning permissions and reputational and financial checks;
  • Make regular checks to make sure that the site continues to operate within duty of care and exemption or permit specifics;
  • As a landowner, ensure that any lease or rental agreements state clearly what the premises or land may or may not be used for and that this is being respected on site.

Groundsure provides a range of services to help in the identification and audit of these issues, including a service that helps identify sites more prone to waste abandonment than others within large property portfolios. If this could be relevant to your situation or is otherwise of interest please contact us on projects@groundsure.com or call 0800 0280000 for further details.


Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

References:

1. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/756306/FlyTipping_201718_Statistical_Release_rev.pdf
2. https://www.gov.uk/government/news/cockwells-nursery-landowner-allowed-waste-hoard-which-caught-fire
3. http://www.bailii.org/ew/cases/EWHC/Admin/2018/994.html
4. https://www.gov.uk/government/publications/excise-notice-lft1-a-general-guide-to-landfill-tax/excise-notice-lft1-a-general-guide-to-landfill-tax

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