28 July 2015 #Commercial Real Estate
Figures suggest that fly-tipping – the illegal deposit of waste – is on the up after years of decline, with a 20% increase in fly-tipping since 2012/13. A costly concern for landowners, it is estimated that fly-tipping on private land costs of as much between £50m and £150 million to clear up each year. This note, gives a brief overview of some of the issues to aware of .
Fly-tipping is an offence under the Environmental Protection Act 1990, incurring not only financial penalties but also potential imprisonment. Owners of land should be aware of the following obligations in respect of their sites:
Deposit of waste
Landowners will usually require a permit or an exemption to allow waste onto their land. This includes both depositing controlled waste on their land and “knowingly permitting” this to be done (Environmental Protection Act 1990 s.33).
A “knowing permitter” can include a landlord who is, or could reasonably be expected to be, aware that controlled waste has collected on their land in breach of their tenant’s lease, but has taken no action to remedy the breach. It is therefore advisable to report any potential tipping by a tenant to the relevant local authority or environment agency to avoid accusation of having “knowingly permitted” the waste.
“Knowingly permitting” controlled waste on land is a criminal offence - this can lead to a term of imprisonment of up to 5 years as well as an unlimited fine, to include the costs of investigation as well as the cleanup of the site.
Management and storage
Landowners are required to manage their land to minimise risks to visitors, which can include ensuring that fly-tipped waste does not cause harm to visitors, whether or not the landowner has invited them to their premises. (Occupiers’ Liability Act 1957,1984; Health and Safety at Work Act 1974).
The Environment Agency has published a Regulatory Position Statement providing that fly-tipped waste can be stored on a temporary basis without a permit at a site other than where it was discovered under certain prescribed circumstances, pending recovery or disposal of the waste elsewhere.
Local Councils will not generally clear waste deposited on private land free of charge, though they may investigate incidents of fly tipping that arise. Where a successful prosecution is brought, the Council can apply for the Court to order that the landowner’s clean-up costs be reimbursed.
In most cases, it will be the landowner who is responsible for ensuring that the waste is disposed of correctly. A landlord must ensure that whoever is employed to collect and dispose of the waste is a registered waste carrier (see the gov.uk website for a list of authorised waste carriers) (Environmental Protection Act 1990 s.34).
Where this requirement is breached, a landlord can be liable to pay an unlimited fine.
To summarise, it is important that landowners are aware of their liabilities under the Environmental Protection Act 1990 and other statutory measures and take the necessary action to prevent fly-tipping, as the implications for leaving waste on land can be onerous. Through careful site management, including the use of CCTV, regular clearance of overgrown areas to improve sightlines and co-operating with neighbours to report on any waste discovered, landowners can work to limit incidents and create a safe environment for their tenants and employees alike.