| SPOTLIGHT |
Local authorities spend £44m a year clearing up fly-tipping. Martin Edwards looks at the law, the procedure – and traps for the unwary prosecutor.
Fly-tipping:
Penalties were increased in England and Wales by Part 5 Chapter 2 of the Clean Neighbourhoods and Environment Act 2005. Fly-tippers can be fined up to £50,000 in the Magistrates’ Courts, face unlimited fines in the Crown Courts, as well as community punishment orders or prison sentences of up to five years.
In addition, those found guilty may also have to pay legal costs and compensation. In 2010 a Derbyshire scaffolding firm was fined £95,000 for the illegal dumping of waste.
Under the Proceeds of Crime Act 2002 offenders can have assets frozen and confiscated: in 2010 two men were ordered to pay £234,393 under the provisions of the Act, the second highest confiscation achieved by the Environment Agency at the time.
There are a range of other possible penalties e.g. driving bans, forfeiture of vehicles involved in fly-tipping, an electronic tagging curfew and community service. For an interesting discussion on sentences see R v Kelleher [2008] EWCA Crim 3055 where the appellant unsuccessfully appealed against a sentence of 14 months' imprisonment for an organised fly-tipping operation. His co-accused was sentenced to 22 months’ imprisonment. The defendants had fly-tipped over 14,000 tons of waste and received £550,000. Removal and clean up costs amounted to some £347,000.
The government has launched a major review of waste policy which will consider “how best to reduce fly-tipping”. A consultation period ended in October 2010 with the results expected to be released in spring 2011.
What is the scale of the problem?
There was no database until the establishment in 2004 of the Flycapture database, which is managed by the Environment Agency with the assistance of Defra, the Welsh Assembly and local authorities. The database records the number, size, waste and location of fly-tips on public (as opposed to private) land recorded each month in each local authority area.
The figures are only approximations given the difficulties in ensuring the consistency of recording of incidents. However, they do show that:
Fly-tipping on private land is believed also to be a major problem but no comparable reliable data is available. Defra is undertaking research at the moment into the scale of the problem. On private land it is the responsibility of the landowner to remove the waste and dispose of it legally. If the fly-tipper is caught then it is possible that the costs involved could be recovered from the fly-tipper. Some landowner associations such as the NFU claim that the problem is getting worse and are calling for a change in the law to make local authorities responsible for clearing it. So far the government has resisted this call. Some estimates suggest that 67% of farmers are affected by fly-tipping.
What is fly-tipping?
In short, fly-tipping is the illegal dumping of waste. Remember: all types of waste gets fly-tipped: some of it can be dangerous. Investigating officers should therefore take care when examining fly-tipped waste.
The most common fly-tipped waste is household waste. Other wastes include old appliances like fridges and washing machines, building and demolition waste, animal carcasses, vehicle parts and tyres. Also some hazardous wastes are dumped such as asbestos sheeting, chemicals and oils.
So what is the relevant legislation?
Section 33 of the Environmental Protection Act 1990
It is illegal for any person to deposit controlled waste, knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence (environmental permit) is in force and the deposit is in accordance with the licence. Controlled waste is any household, commercial or industrial waste.
Section 33 also makes it an offence if a person has treated, kept or disposed of controlled waste in or on land that does not have a licence. It is a defence to prove that all reasonable precautions were taken and all due diligence exercised to avoid the commission of the offence or that the act was necessitated by an emergency in order to avoid a danger to the public. It is not a valid defence to claim to be acting under an employer’s instructions.
Where a person is convicted under this section the court may make an order requiring the offender to pay the costs associated with the enforcement and investigation of the case, the seizure of any vehicles that were involved in the offence and costs for the removal of the illegally deposited waste. The court may also order the confiscation of the vehicle if it is satisfied that it was used in or for the purpose of the commission of the offence.
Whilst householders do not need licences for their waste, section 33(2) was amended in 2006 to prohibit the disposal etc of waste by private individuals, within the curtilage of their property, in a manner likely to cause pollution of the environment or harm to human health.
Section 34 of the Environmental Protection Act 1990 (the Duty of Care)
A waste holder (any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste) has a statutory duty of care with regard to that waste and it is an offence if they fail to take all reasonable measures to prevent another person from committing an offence under section 33 or prevent the escape of the waste from his or another person’s control and to transfer the waste to an authorised person or to any person for authorised transport purposes and to provide that person with a written description of the waste.
Section 34A enables an authorised officer (i.e. of the Agency or the waste collection authority) to issue a fixed penalty notice to any person who has failed to comply with a requirement to furnish documentation as specified under section 34(5). The current penalty is £300.
Householders also have a duty of care to check that anyone they commission to take away and dispose of their domestic waste is registered. Householders are not required to supply documentation such as a waste transfer note but they could face a maximum fine of £5,000 if they fail to take reasonable measures to ensure their domestic waste is handled by an authorised waste carrier. It is for the court to determine whether or not “reasonable measures” were taken in a particular case.
Section 59 of the Environmental Protection Act 1990
Under section 59, as supplemented by section 59ZA, local authorities and the Environment Agency can require occupiers and landowners to remove waste they knowingly caused or permitted to be deposited illegally. If the occupier or landowner does not remove the waste, the authorities can enter on to the land, clean up the waste and charge the landowner or occupier with the costs of so doing. They can also enter land to clear it of waste if there is no occupier or if the occupier neither knowingly caused nor permitted the deposit of the waste or in order to prevent pollution.
Sections 1,2 and 5 of the Control of Pollution (Amendment) Act 1989
It is an offence under section 1 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.
Section 2 specifies requirements for the registration of carriers of waste, as well as regulations for vehicles used for the transportation of waste to comply with certain conditions.
Section 5 gives waste regulation authorities such as waste collection authorities, the police and other enforcement agencies a power to stop and search any vehicle believed to be used for the transportation of waste without being registered. Only a constable in uniform can stop a vehicle on a road. It is an offence to fail to assist or to obstruct an authorised officer or a constable. Where it appears to an authorised officer that a person has failed to produce authority for transporting controlled waste, the officer may issue a fixed penalty notice. The penalty is £300.
Other powers
Other points to note
Fly-tipping and illegal waste activities – Working Better Together Protocol 6 March 2005 agreed between the Environment Agency, Local Government Association and Welsh Local Government Association.
The National Fly-tipping Prevention Group meanwhile brings together organisations with the common aim of combating fly-tipping.
Procedure: “Knowingly cause or knowingly permit”
The courts have interpreted the phrase “knowingly” very strictly. In Shanks and McEwan (Teeside) Ltd v Environment Agency [1997] Env LR 305 the defendant was charged with knowingly permitting the deposit of controlled waste in contravention of a licence condition. It was argued that although the defendant knew of the deposit of the waste it did not know it was in breach of condition. The court followed the decision in Ashcroft v Cambro Waste Products Ltd [1981] 1 WLR 1349 in taking a very strict view of the phrase. The prosecution need only prove knowledge of the deposit of the waste material. It is not necessary to demonstrate knowledge of the breach of licence condition which gives rise to the offence. Thus, once the prosecution demonstrate that waste had been knowingly deposited, the burden of proof then falls on the defence to establish that the deposit was made in accordance with the conditions of the licence.
It is also possible to infer knowledge. In Kent County Council v Beaney [1993] Env LR 225 it was held that knowing permission may be inferred from the facts of a case where the deposit of waste was obvious from surrounding events. This concept of constructive knowledge was developed further in the Shanks and McEwan (Teeside) decision. In that case Mance J took the view that it was sufficient that the defendant company (including its senior management) knowingly operated and held out its site for the reception and deposit of controlled waste. Once this was established it was not necessary to demonstrate that there was any knowledge of the specific breach of the licence condition. Arguably this places the operators of landfill sites under strict liability for breaches of condition.
Vehicle ownership and waste offences
In Environment Agency v Carl Mellan [2002] EWHC 904 Admin, the defendant was prosecuted for fly-tipping offences on an industrial estate. The evidence was that the defendant was the owner of the vehicle which had been seen at the site although the defendant was not the driver. He was acquitted of the offence on the basis that although he owned the vehicle, the element of control required under section 33(5) was not present. On appeal, the High Court (Harrison J) held that evidence of ownership was capable of amounting to evidence of control. This is a presumptive test and there will be other occasions where ownership would not indicate control (e.g. if the owner was a hire company like Hertz or Avis).
The due diligence defence
The nature of this defence can be illustrated by two cases. In Durham County Council v Peter Connors Industrial services Ltd [1993] Env LR 197, a system of operation which relied upon the person disposing of waste regularly collecting a skip which had been filled with waste by another without checking on the contents of the skip every time, was not sufficient to come within an analogous defence under section 3(4) of the Control of Pollution Act 1974. It was held that the collector of the waste had to take care to inform itself on each occasion that it collected the waste as to the nature of the contents of the skip. The defence required specific inquiry to be made of any person who knew what the waste was and whether the future deposit of that waste would involve a breach of the Act.
In Environment Agency v Short [1998] Env LR 300, the defendant left waste timber at a construction site to be burnt after being told incorrectly by the site owner that the site did not require a waste management licence because it was exempt. The High Court held that the onus was on the defendant to make specific inquiries as to whether the exemption extended to the timber.
The meaning of deposit
In R v Metropolitan Stipendiary Magistrate, ex parte London Waste Regulation Authority [1993] All ER 113 the divisional Court held that “deposit” applied to temporary deposits as well as to permanent ones, which seems to reflect common sense and the wider scope of the Act in dealing with waste management rather than disposal. This decision was widened further by Thames Waste management Ltd v Surrey County Council [1997] Env LR 148 where it was held that “deposit” could cover continuing activities where the context of the waste management licence would suggest that it was appropriate to do so. Thus a deposit can continue over a significant period whilst other activities are carried out.
The division of responsibilities
Anyone can bring a prosecution for fly-tipping under the EPA. However normally prosecutions are brought by the Environment Agency or the local authority and the Protocol contains guidance (not a statement of law) on which authority should act. With regard to local authorities the Protocol states that where fly-tipping on private land is having an adverse effect on the environment, local authorities are encouraged to take steps to ensure that the waste is removed, appropriate enforcement action taken and costs recharged wherever possible. Local authorities normally investigate and take appropriate enforcement action against:
Local authorities will normally remove, investigate and take appropriate enforcement action with regard to:
Martin Edwards is a barrister at 39 Essex Street (www.39essex.com). He can be contacted by email atThis email address is being protected from spambots. You need JavaScript enabled to view it..
