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No Tenant, No Liability? Further Considerations on Definition of ‘Storage Pending Disposal’

Karen Jones

Partner Karen Jones, in our Planning and Environmental Law team, comments on the definition of 'storage pending disposal'. 

An interesting case has recently come before the High Court as a case stated appeal from the Magistrates Court.  It concerned a site where the Environment Agency had served an enforcement notice on a tenant occupier who immediately ceased to trade. The landlord had to address the waste material they had left behind.  In this instance the tenant had operated a business recycling mattresses and 471 tonnes of mattresses remained at the site.

The landlord did not take any active steps to deal with the mattresses at the site.  The Agency brought charges against the landlord (a company and its directors) for knowingly permitting storage of waste without authorisation under the Environmental Permitting (England & Wales) Regulations 2010.  Those regulations have now been replaced by the Environmental Permitting (England & Wales) Regulations 2016 but the operative provisions remain in force under the new regulations. 

In essence the question for the Court was whether the definition of “storage” to include “storage pending disposal or recovery operations” constitutes a “waste operation” requiring authorisation.  It was submitted that there had been no waste operation on the site during the period of the charges as the recycling business had been the business of the tenant and was not operating.

 It was asserted that actions after tenant departure should be viewed as a clean-up operation not a waste operation requiring authorisation. One of the directors of the Defendant company had been out of the country when the Enforcement Notice had been served on the tenant and had not been aware of service until his return.  He argued that in those circumstances he could not have “knowingly permitted” the operation without the authorisation.  Counsel for the appellants appears to have described their behaviour as taking the route of “passively suffering” the mattresses’.  The Agency contended there was a continuing waste operation after the service of the Enforcement Notice which the landlord had knowingly permitted with the consent or connivance of its directors or in a manner attributable to their neglect (Regulation 41 of the 2010 Regulations).

The Magistrates Court had convicted and concluded there was a continuing waste operation consisting of the storage of waste.  Despite the appellants’ contention that they had wished to expel the mattresses from the site and that there was no deliberate act of storage the High Court agreed with the Agency’s argument that there was no meaningful distinction between “storage pending disposal or recovery” on the one hand and “passive sufferance” pending the expulsion of the mattresses.  The operation of a regulated facility did not require the Prosecution to establish that the accused undertook a positive act.  It was sufficient for the Prosecution to prove that the accused knew such a “waste operation” (as defined) was taking place and did nothing to prevent it. The Magistrates were entitled on the facts to find that this was the case.

The implications for commercial landlords are that it appears that some positive steps would need to be taken on a landlord’s part where the storage of items left on a site would breach Environmental Permitting Regulations to ensure that position did not continue.  Passively suffering the presence of the unauthorised material will not be accepted.  In this instance the appellants were sentenced to a 12-month Community Order with a requirement to undertake 150 hours of unpaid work with the second appellant (the company) fined £5,000 with each paying in excess of £7,000 towards the costs of the Prosecution case.

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.