Back to Basics: Rubbish legislation for fly-tipping?

Felicity Wimbush rounds up the details – and deficiencies – of the statutory regime on the dumping of waste. With most people spending much of the past year at home, DIY projects and decluttering exercises have risen dramatically. Alongside the waste generated from such projects, the general volume of domestic waste has also increased as a result of families being at home 24/7. This increase in domestic waste, coupled with the closure of tips and recycling centres and disruptions to household waste collections during the Covid-19 crisis, has unfortunately led to an increase in the problem of fly-tipping. For example, St Helens Council reportedly issued 92 fixed penalty notices for fly-tipping offences in the last four months of 2020 alone. Controlled waste Controlled waste takes the meaning within Part II of the Environmental Protection Act 1990 and means household, commercial or industrial waste. Controlled waste can be solid or liquid waste and includes any waste from a house, shop, office, factory or any other trade or business premises. What is fly-tipping? Fly-tipping is the term for the illegal dumping of waste, which is a serious issue for the environment. It not only spoils amenity of land, it harms wildlife, causes pollution and poses a risk to human health. According to the Department for Environment, Food and Rural Affairs, household waste (including leftover DIY material and abandoned electrical goods such as fridges) accounts for half of all fly-tipped rubbish in England. The types of land most commonly affected by fly-tipping include land near to public waste reception sites, roadsides and land adjacent to public rights of way, particularly on the outskirts of urban areas, and derelict land. The agricultural sector is acutely affected, with 67% of farmers reporting waste being dumped on their land. It is estimated that landowners spend approximately £100m per year in clean-up costs, in addition to approximately £44m spent by local authorities. The Environment Agency investigates major illegal fly-tipping incidents on public or private land. Major incidents include: large illegal waste disposals (greater than 20 tonnes or 20m3) where there is evidence of organised fly-tipping or criminal business practice hazardous waste (more than 75l) in drums or containers which has the potential to damage the environment. The legislation: section 33 Section 33 of the Environmental Protection Act 1990 (as amended) makes it a criminal offence for any person to: deposit controlled waste; or knowingly cause the deposit of controlled waste; or knowingly permit controlled waste to be deposited in, or on, any land unless an environmental permit is in force and the waste deposited is in accordance with the licence. Both the EA and the waste disposal authority (usually the local collection authority) are able to bring criminal proceedings for fly-tipping pursuant to section 33. Fly-tippers and landowners can be fined up to £50,000 in the Magistrates’ Court and/or face imprisonment for up to 12 months and unlimited fines in the Crown Court and/or imprisonment for up to five years. This is particularly unfair towards those who have waste deposited on their land. The current legislation penalises the victims, ie the landowners. The courts interpret the phrase “knowingly cause or permit” in section 33 very strictly. Shanks and McEwan (Teesside) Ltd v Environment Agency [1999] QB 333 determined that the prosecution only need prove that the defendant has knowledge of the deposit of waste material. Once a landowner knows there is waste dumped on the land, they commit a criminal offence unless it is cleared and disposed of lawfully. The Clean Neighbourhoods and Environment Act 2005 also allows the court to order investigation and enforcement costs (section 33A) to be paid by the offender and clean-up costs incurred by the prosecuting authority (section 33B) to be recovered from the relevant person. This is, however, a matter for the courts to determine and they are generally fair where it is the landowner who is being pursued. Section 33 gives the waste disposal authority an additional power to issue fixed penalty notices for fly-tipping offences. The fixed penalty is for either (a) a sum between £150 and £400 as specified or (b) a sum of £200 where no amount is specified. A fixed penalty notice is more appropriate for small-scale fly-tipping offences. Section 33 also: makes it an offence to treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health. This means that where deposited waste is kept on land and not removed, landowners are still liable to an offence pursuant to the 1990 Act. places liability on the person who controls or is in a position to control the use of the vehicle where controlled waste is deposited from a vehicle. Section 33C means that the EA or the local authority can apply to the court to seize the vehicle involved in fly-tipping as only the police can stop a vehicle on the road. The owner of the vehicle involved in fly-tipping is liable for the offence regardless of whether or not they are in control of the vehicle. The only available defence to section 33 is where it can be proven that all reasonable precautions were taken to avoid the fly-tipping or that the unauthorised waste disposal was necessitated by an emergency in order to avoid a danger to public health. Again, this is unfair to landowners who are not themselves causing the fly-tipping but must take reasonable precautions to ensure that it does not take place on their land. The legislation: section 34 Anyone who produces waste materials as a result of commercial activity has a duty of care under section 34 of the 1990 Act to ensure that this waste is disposed of properly. It is an offence, where reasonable measures are not taken to: prevent another person from committing an offence under section 33 prevent the escape of the waste and to transfer the waste to an authorised person or to any person for authorised purposes and to provide that person with a written description of the waste. A fixed penalty notice for £300 can be issued for the contravention of section 34. A duty of care is also applied under section 34 to householders who have a duty to check that anyone commissioned to collect and dispose of domestic waste is registered. Formal waste transfer notes are not required but householders could face a £5,000 fine if they fail to take “reasonable measures” to ensure domestic waste is disposed of by an authorised waste carrier. Other provisions Section 59 of the 1990 Act provides powers for waste disposal authorities and the EA to require occupiers and landowners to remove waste they knowingly caused or permitted to be deposited illegally. If the landowner or occupier does not remove the waste, the authorities can enter the land, clean up the waste and reclaim costs for doing so. The Control of Pollution (Amendment) Act 1989 requires carriers of controlled waste and the vehicles used to transport the waste to be registered. It is a further offence for anyone who is not a registered carrier of controlled waste to transport any waste in the course of a business or with a view to making a profit. Failure to produce certification that the transportation of the waste is authorised can result in the waste disposal authority issuing a fixed penalty notice for £300. The Environment Bill – a chance for reform? The proposed Environment Bill 2019-21 offers a chance to strengthen the already existing legislation on waste and environmental crime, including fly-tipping. Measures proposed allow for the introduction of electronic (digital) waste tracking, which may result in being able to identify those who dump waste so that they can be punished, rather than landowners, offering a much more equitable solution. However, it is likely that the landowner would still be held ultimately liable in most cases, meaning the victim is still victimised. It would be much fairer to decriminalise the offence for the landowner and offer financial support to assist the landowner with the necessary clean-up. In an ideal world, the burden for cleaning up fly-tipping would be shared with the waste disposal authority. However, this is an imperfect solution given that such authorities would require significant funds and perhaps some form of land tax would need to be introduced with this in mind. Although landowners may then be taxed, they would not be prosecuted for an activity which they have not committed as they are with the current legislation. What to do if someone has fly-tipped on your land Record the incident and make a note of the date, time and place where the fly-tipping has occurred, the types of materials dumped and the size of the waste area, and where possible take photographs. This may be useful in the event of an investigation. Exercise caution, especially where the waste could be hazardous and therefore harmful or where the fly-tipper is still on your land. Where you intend to clean up the waste yourself, make sure that you use a registered waste carrier to take the waste and dispose of it safely and effectively. You should ask the waste carrier to provide their registration documents and provide proof that they are licensed to deal with hazardous waste. Where you are unable to clean up the waste immediately, contact the waste disposal authority as soon as possible to prevent yourself becoming criminally liable for the waste disposal. Keep a note of any clean-up costs as these may be recoverable. How to deter fly-tippers Restricting access to your land with barriers or gates which can be locked (being mindful of any access issues and public rights of way which cannot be obstructed). Install or improve any existing lighting on your land to keep all areas visible. Install CCTV cameras at obvious fly-tipping sites. Erect deterrent signage which makes it clear that you are aware of fly-tippers and warns fly-tippers that they can be prosecuted where caught. If you have a skip on your property, make sure this is a lockable, enclosed skip which can be used only for your own waste.  Felicity Wimbush is a solicitor in the planning and environmental team at Brabners Photo © Peter Luckhurst/Shutterstock