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Further Powers Proposed for Waste Regulator

Karen Jones

Partner Karen Jones, in our Planning and Environmental Law team, comments on the proposed Waste Enforcement Regulations 2018. 

The draft Waste Enforcement (England & Wales) Regulations 2018 have been laid before Parliament introducing enhanced powers to tackle illegal activity at waste sites. 

The Regulations give waste regulation authorities and waste collection authorities the power to require waste to be removed from a site where it has been unlawfully kept or disposed of.  This includes waste that was initially lawfully deposited.  The power is to be exercised by service of a notice on the occupier of the land.   

The proposal is to insert new sections into the Environmental Protection Act 1990 to supplement existing powers in Section 59 and 59ZA of that Act to allow service of a notice on the owner or occupier of land requiring removal of the unlawful waste. The notice may specify steps to be taken to deal with the unlawfully kept or disposed of waste.  It will be a criminal offence to fail to comply with the notice.

There are also powers to be inserted into the Environment Act 1995 allowing the Environment Agency to restrict access to premises and the importation of waste into premises for a period of up to 72 hours by means of issuing a restriction notice.  This can be issued where there is a risk of serious pollution to the Environment or serious harm to human health as a result of the treatment, keeping, deposit or disposal of waste.  The service of the notice must be necessary to prevent that risk from continuing.  In addition to these emergency powers access to premises and importation of waste can be restricted for up to six months if application is made to the Court for an Order. There are strict time limits applying to these applications which are made to the Magistrates Court and Appeals will fall to the Crown Court.   These new powers supplement existing powers in Sections 108 and 109 of the Environment Act. 

The Regulations are part of the Government’s drive to deal with the areas of the waste industry which operate outside of the law and have negative impacts, causing pollution to the natural environment.  The new powers are to allow regulators to tackle these negative impacts.  The powers do mean however that landowners may find themselves liable for the removal of waste which was legally brought on to their land and obliged to remove it at their own cost.  It has been suggested that the measures may encourage greater scrutiny of land use - for example greater control or financial bonding of tenants or occupiers of land who may leave behind waste that the landowner then has to deal with.  The Government’s position is that enforcement of the waste site sector needs to be underpinned by legislation to enable regulators to successfully prosecute illegal activity.  They assert that the introduction of the two new enforcement provisions allowing the issue of a notice to remove waste and to restrict access to premises and importation of waste in some circumstances will support legal waste businesses, protect local communities affected by the actions of illegal and non-compliant operators, protect the environment, minimise the costs to the public purse in dealing with fires or clearance at waste sites and reduce the avoidance of land-fill tax.

These proposals are part of the Government’s Waste Crime Action Plan and compliment other proposals to boost performance in the waste sector currently subject to consultation which featured in my last comment. Consultation on those proposals closes on 26 March.  These Regulations will come into force within specified timeframes following the making of the Regulations.

For more information or legal advice, please contact Karen Jones or a member of our team.

A similar article was published as a legal comment in Waste Planning Magazine. 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.