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Fly-tipping and the waste mine field. Part 1

March 4, 2017

 

Fly-tipping is a very real problem and it is a subject that has been in the news in Kent for the last couple of weeks. Thanet District Council have introduced a £400 fixed penalty for fly-tipping offences and ITV have been running a campaign highlighting the problem. 

 

It is not intended here to write a treatise on the possible causes of the problem, although it could certainly be argued that there isn't much 'joined up thinking' in the governmental (national or local) approach to the problem. It would seem to me, that the easier you make it for people to dispose of their waste responsibly, the more likely they are to do so. Yes, this of course has a cost but so does the clean up of fly-tipped waste. This piece however is aimed at assisting people avoid inadvertently falling foul of the authorities. Understanding the powers that the local authority has in dealing with these matters and how to avoid falling foul of the legislation.

 

In short, the message here is 'belt and braces'.

 

The offence, commonly called 'fly-tipping' is created by section 33 of the Environmental Protection Act 1990. What that section says is that it is an offence to deposit controlled waste, or knowingly cause or permit controlled waste to be deposited in or on, any land other than in accordance with a waste management licence.

 

To break that down: in fact, just about anything that needs to be disposed of by either a household or a business, is controlled waste. 

 

Then we have 'deposit'. Well we all know what that means, don't we? Maybe not. What if you are a shop keeper and you arrive at your premises one morning to find that either the wind or some individuals have left you with a pile of kebab and KFC packaging on your property. If you sweep it back on to the street, are you 'depositing' it? The answer is 'potentially' , yes.

 

In the case of Milton Keynes Council v Fuller and McVeigh [2011] EWHC 1967 (Admin), a farmer arrived at his field to find it obstructed by  fly-tipped waste preventing his entry to the land. He telephoned the council to notify them but then went on to move the waste a few feet, so as to be able to gain entry to his land. In those circumstances you might feel that it was not really a case that warranted prosecution but Milton Keynes Council thought otherwise and the magistrates determined that in moving the rubbish a few feet, the farmer had not 'deposited' the waste. Not content with that decision the case was appealed by the council to the High Court. Whilst finding that in the circumstances of this particular case, the magistrates were entitled to find as they had, that there had been no deposit, they went on to say that each case must be decided on it's own facts and that there may be cases in which the 'second' movement of waste could amount to a deposit. 

 

In the context of the wider criminal law, the use of the word  'knowledge' requires that for an offence to be committed, there has to be more than just the actions. i.e. that the actions be accompanied by a thought process or 'mens rea' in lawyer speak. Indeed how could it be anything but? We all know what the word knowledge means. In the Milton Keynes decision the High Court attributed the word 'deposit' its ordinary dictionary meaning but the interpretation  of the word 'knowledge' has by a series of cases, been given anything but a dictionary definition in the context of the environmental protection. Whilst in the  Theft Act, an offence of handling stolen goods,  knowledge has been interpreted by the courts to mean exactly that, ie to know, so that a mere suspicion that something was stolen would not be enough to prove the offence, in terms of the Environmental Protection Act, it has been so broadened as to make the offence one of 'almost' strict liability. 

 

To provide a practical example, you have moved into a new house and the garden is full of rubbish. There is a chap on a local Facebook group who advertises as a 'Man with Van' and amongst the services he offers the public between removals and delivering ebay items, he says he does rubbish and garden clearance. You get a quote of £50 and you think the problem is solved. You put some old papers with the garden rubbish, the very nice chap collects it all and you give no more thought to the waste. A few weeks later you get a letter from the council (more on this point later) inviting you to be interviewed by the council, as some 'documents' found amongst some waste, 'fly-tipped' in a country lane have led them to you. Whilst in your mind you did not know or knowingly permit the waste to be deposited, in terms of the law alas you probably do.

 

However, all is not necessarily lost, there is a potential defence if you prove that all reasonable precautions were taken and you  exercised all due diligence to avoid the commission of the offence. A further defence is that the act was necessitated by an emergency in order to avoid a danger to the public. It would not be a defence to claim to be acting under your employer’s orders.

 

Penalties for fly-tipping are high and for the worst cases, where the deposit has caused actual harm to the environment, place the offender at risk of a prison sentence. So here is my advice to those just about to answer that Facebook advertisement.

 

 

Think about the cost you have been quoted.

 

Once you have handed over your waste to a person or company charging for it's disposal, it is commercial waste. They can't just take it to the local household recycling centre. It has to be taken to one of the commercial waste handling sites. The minimum charge at these sites is around the £50 mark. If your quote for the disposal of your third of a tonne of waste was less than this, then alarm bells should have started to ring. Bearing in mind that on top of the charges at the waste centre , there is the fuel, and the wage costs if there is more than one person on the job, then they need to add the  profit. So, if it is cheap quote, time to worry.

 

Do they have a waste transfer licence?

 

Anyone who collects your waste, needs to hold a waste transfer licence. Ask to see it. Just because their ad says they have one "it ain't necessarily so". Get them to provide you with an invoice with a brief description of the waste that they are taking. eg. 5 blue bags of rubble. Even if they have a waste transfer licence there is no guarantee that your waste will end up in the appropriate place, so again even if all else seems ok, if the quote is too good to be true, then it probably is. 

 

Buy a shredder

 

Just after Christmas when the streets were awash with the inevitable detritus produced by our merry-making, I arrived at the office to find the contents of three black bin liners strewn across my foyer, Amongst the usual wrapping paper and kitchen packaging were dirty nappies and used underwear. To say that I was unimpressed would be something of an understatement. Now it could be that some drunk picked up the bags and moved them  but given the quantity this is probably unlikely. However amongst the mess were two items, a prescribed medication package and a letter from the NHS advising that a partner had been diagnosed with a sexually transmitted disease. Both in the same name, the latter bore the address, some flats about 50 yds from my office. (She had the good sense to be out when I knocked on her door). I'm not sure I would want the world to have potential access to my private correspondence, apart from anything else we all risk identity theft.

 

But in the context of the waste issue, your correspondence could inadvertently implicate you. A recent case that I have dealt with provides a good illustration of the dangers inherent in disposing of items bearing your name, even responsibly. A visits B on a regular basis. A uses B's kitchen bin to have a handbag clear out.  Somehow, the contents of B's kitchen bin find their way to a nearby country lane where they are found amongst bags of rubble and other waste fly-tipped by a party unknown. So even waste that you have yourself deposited responsibly might still implicate you. A half decent shredder is worth the investment.

 

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