Partner Karen Jones, head of our Planning & Environmental Law team, explains the legal powers local authorities can use to tackle fly-tipping.
Local authorities have various enforcement actions available to them in order to respond to fly-tipping in their areas, ranging from the seizure of vehicles and notices to remove the waste to fixed penalties, which now carry higher fines.
There is no legal definition of “fly-tipping”. It is commonly referred to as the illegal depositing or disposal of waste in an unauthorised manner and location. Government description is that it amounts to the illegal dumping of liquid or solid waste on land or in water and that it usually occurs to avoid disposal costs. The Local Government Association describes fly-tipping as environmental vandalism, which is unpleasant and unacceptable, bad for the environment and public health, as well as diminishing the beauty of the countryside. Fly-tipping is a specific form of antisocial behaviour, which is a problem for both rural and urban areas.
Following the COVID-19 pandemic and periods of lockdown, there has been debate as to whether fly-tipping became a more acceptable practice, not least because council-run household waste recycling centres were closed or operated under reduced opening hours.
Outside of Environment Agency action, the local authority has various enforcement actions available to it to tackle fly-tipping incidents in its area.
The Control of Pollution (Amendment) Act 1989, Section 5 and the Environmental Protection Act 1990, Section 34B allows local authorities (and the Environment Agency and the police) the power to seize any vehicle and any of its contents where it is reasonably believed that it has been or is being used for the unlawful transportation of waste. A vehicle is a motor vehicle or trailer within the meaning of the Road Traffic Regulation Act 1984. Once a vehicle or its contents have been seized, a local authority must follow the procedure and comply with the obligations in the Control of Waste (Dealing with Seized Property) (England and Wales) Regulations 2015. These include being under a duty to keep the seized property for a certain period before disposing of it, giving notice to the registered keeper of the seizure and publishing a seizure notice (Regulations 5, 7 and 8).
A local authority may serve a notice pursuant to the Environmental Protection Act 1990 Section 59 or Section 59ZA. Where waste has been illegally deposited on land, a Section 59 notice may be served on the occupier requiring them to remove the waste from the land within a specified period, or within a period of 21 days take specified steps with a view to eliminating or reducing the consequences of the waste deposit. The notice may require both actions to be undertaken. In the case of the specified steps requirement, it is interesting to note that the courts have found (Neal Soil Suppliers Ltd v Environment Agency (2007) (EWHC 2592)) that a Section 59 notice “may perfectly lawfully allow the waste to remain deposited on the land in question, albeit that the deposit breached Section 33, and the notice may simply require some steps short of removal to be taken”. Accordingly, the court found that “action taken in compliance with the requirements of the Section 59(1) notice will not amount to a criminal offence under Section 33(1)”. The charge noted in the Neal case that Section 59, unlike Section 33, is “not there to achieve punishment of an offender under the Act or to deter others”. Its purpose is “remedial” in that it seeks “to deal with a situation that has arisen, and to deal with it in the most appropriate way for the protection of the environment".
Failure to comply with the notice is a summary offence for which a fine may be imposed and daily fines imposed thereafter. The local authority has the power to carry out the activities which the notice requires itself and to recover the expenses reasonably incurred in doing so.
Section 59ZA is a later enactment inserted into the Environmental Protection Act 1990 by the Clean Neighbourhoods and Environment Act 2005. Section 59ZA permits a local authority to serve a notice on the owner of land. Section 59ZA widens the scope to owner as well as occupier. Various grounds must be satisfied before a Section 59ZA notice may be served, including that there is no occupier of the land or that they cannot be found without the local authority incurring unreasonable expense, the occupier of the relevant land is not the same person as the owner and that the occupier has failed to comply with the requirements specified in the notice.
Fixed penalty notices can be issued specifically for fly-tipping in respect of the household waste duty of care, for littering in conjunction with fly-tipping, and in relation to all other waste offences. Fixed penalty notices are a useful and well-used tool, and over the years additional powers to take this type of enforcement action have been conferred (see Unauthorised Deposit of Waste (Fixed Penalties) Regulations 2016, Environmental Protection Act 1990, Section 34ZA, inserted by the Environmental Protection (Miscellaneous Amendments) Regulations 2018 and Environmental Protection Act 1990, Section 33ZA).
Certain incidences of fly-tipping may result in the prosecution of offenders. This is inevitably reserved for the more serious cases. The Environment Agency is the appropriate authority responsible for dealing with large-scale, serious and organised illegal dumping incidents that pose an immediate threat to human health or the environment. In exercising its discretion to prosecute, a local authority will need to be satisfied that there is sufficient evidence available to secure a conviction and that the prosecution is in the public interest. Fines are by far the most common sentencing outcome where a person has been found guilty of the illegal deposit or disposal of waste. It is rare for a custodial sentence to be imposed in respect of local authority prosecutions.
Higher fines for fixed penalty notices have been recently introduced: The Environmental Offences (Fixed Penalties) (Amendment) Regulations 2023 increasing to £600 on 6 July 2023. The government plans to introduce the electronic tracking of waste to provide a single comprehensive way of tracking to reduce the ability of waste criminals to operate. Increasing penalties for fly-tipping, however, is dependent on local authorities and subsequently the courts making full use of the powers available to them.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice. A similar article was first published in Waste Planning Magazine.
