A salutary lesson for any landowner tempted to turn blind eye to tenant’s activites

Landowners’ liability for occupiers’ abandoned waste

Angus Evers
Joanne Sear
United Kingdom May 25 2018

An unsuccessful appeal by a landowner against a conviction for knowingly permitting an unauthorised waste operation on its land has highlighted the risks to landowners of incurring criminal liability if former occupiers abandon waste on their land.

The High Court has recently clarified the circumstances in which landowners can face criminal liability for waste abandoned on their land by former occupiers. Commercial landlords need to be aware of the risks and consider how they might be minimised, because the judgment imposes virtually strict liability on landowners in circumstances where occupiers cease trading and abandon waste on their land.

Background

Salhouse Norwich Ltd owned a site in Norwich, which it leased to a mattress recycling business. The business did not have an environmental permit or a waste exemption. In August 2015, the Environment Agency served an enforcement notice on the tenant, requiring it to remove the mattresses. The tenant didn’t comply, and ceased trading, abandoning over 20,000 mattresses (weighing 471 tonnes).

The mattresses remained on the site after the tenant ceased trading. Salhouse Norwich proposed a remedial plan to attempt to clear the site, but the Environment Agency rejected it and charged Salhouse Norwich with the offence of knowingly permitting the storage of waste without an environmental permit. One of Salhouse Norwich’s directors was also charged in a personal capacity, because the company was said to have acted with his consent or connivance, or the offence was attributable to his neglect.

Both Salhouse Norwich and the director were convicted in the Magistrates’ Court, receiving a fine and 150 hours of unpaid community work respectively. They both appealed.

The appeal

On appeal, the High Court upheld the convictions and found that Salhouse Norwich and the director were guilty because:

  • the continued presence of the mattresses on the land after the tenant abandoned them amounted to a waste storage operation; and
  • they had known that the mattresses were present on the land, but had failed to ensure their removal.

All the Environment Agency therefore needed to prove was that Salhouse Norwich and the director knew that the mattresses were present on the land and had done nothing to prevent them being there. There was no need to prove any positive act by them.

What does the case mean for landowners?

The judgment is a harsh outcome for landowners, as it seems to require them to take positive action to clean up their land if former occupiers abandon waste on it. Once they are aware of the presence of a former occupier’s waste on their land, they are guilty of knowingly permitting an illegal waste storage operation if they do nothing to remove it.

In addition to or instead of prosecuting for carrying out illegal waste operations without a permit, the Environment Agency, Natural Resources Wales and local authorities have powers to serve notices on landowners requiring the removal of waste when it has been illegally deposited or illegally stored on land. Failing to comply with such a notice is also an offence. As highlighted in our March 2018 update ‘Imminent changes to waste rules – it’s not all rubbish‘, these powers have recently been extended significantly, and the position now is that a landowner can also be served with a notice requiring it to remove waste when the waste was deposited with legal authority but where that authority has expired, when the occupier cannot be found, or when the occupier was served with a notice but didn’t comply with it. Landowners can also be charged landfill tax if they knowingly permit the illegal deposit of waste on their land.

Our experience is that, where possible and practicable, regulators will pursue occupiers in preference to landowners. However, regulators will look to landowners to make up the shortfall where an occupier has disappeared or become insolvent.

Before allowing a third party such as a tenant or licensee to occupy its land, a landowner should carefully consider the nature of the occupier’s business and whether it involves waste. If it does, the landowner should ask:

  • Are the necessary environmental permits and planning permissions in place for the occupier’s proposed use of the land?;
  • Is the occupier’s business established and reputable?;
  • Is the occupier’s business financially solvent?

If the answer to all of these questions is yes, then the risk of the occupier disappearing and abandoning waste is reduced. Prevention in these circumstances in better than a cure.

Stone and Salhouse Norwich Ltd v Environment Agency [2018] EWHC 994 (Admin)

Network Rail has no interest in our traffic issues

Recently the local press published a letter suggesting that South Holland District Council could somehow have required the rail companies to do something other than what they eventually did with the line through Spalding.

I did send the newspaper a response, as the writer did raise a number of valid questions that needed answering.  To date, this has not been published.

Dear sir,

Further to Mr Delve’s letter re traffic grid lock in Spalding being caused by increased use of the rail line. He refers to a rail loop proposal and asks why the council didn’t require Network Rail to build this, rather than carry out the upgrade work that allowed for the increased rail traffic.

If only it were that easy. The ‘rail loop’ he refers to, was in fact a protected corridor identified by the district council in an early plan. Its inclusion was more in hope than anticipation, that the rail company would see the logic in bypassing a town centre with four level crossings and no bridges, at some point in the future.

As the local planning authority, South Holland would never have been under any illusion that it could compel Network Rail to do anything other than the Railways Act allows it to; upgrade the existing line, whatever the impact. Even our encouragement for the development of a Rail Freight Interchange, failed to prompt the company into becoming more engaged.

Since the original upgrade proposals became known to South Holland DC, the council has made every effort to reduce the impact. First in meetings with Railtrack, when proposals included the potential for level crossing closures of up to 40 minutes in the hour. We also looked at the potential for a road bridge on Winsover Road. Then with Network Rail, a company that regrettably, has been somewhat less forthcoming.

We are now working in partnership with Lincolnshire County Council and local developers, to progress the delivery of the Spalding Western Relief Road. This road is one of only four strategic road projects in the county council’s local transport plan.

Working with LCC we successful bid for £12m from central Government, to support major housing delivery projects, a crucial element of Spalding Western Relief Road scheme.

Cllr Roger Gambba-Jones
Cabinet member for Place
South Holland District Council

National Planning Policy Framework revisions due any day now – here we go again?

Legal landscape: Let’s hope the revised NPPF can provide much-needed clarity
By Ian Graves

A revised National Planning Policy Framework could bring clarity to planning, says Ian Graves, but he fears government will avoid difficult decisions about green belt and neighbourhood planning.

Six years since the introduction of the National Planning Policy Framework (NPPF), which saw 1,300 pages of planning regulations condensed into just 65, the government has confirmed its intention to publish a consultation draft of the revised framework this spring. The review will be welcomed by planners, developers and local authorities.

A lot has changed since 2012 and it’s time for national planning policy to catch up. The proposals in last year’s white paper Fixing Our Broken Housing Market, the written ministerial statements on small sites and housing land supply, and the growth of neighbourhood planning all need to be integrated into the framework.

The revised NPPF will no doubt also be a key tool in the government’s efforts to fulfil its pledge to deliver a million new homes by 2022. This is the chance for the government to have its say on contentious issues surrounding the interpretation of the current NPPF. Is the presumption in favour of sustainable development really intended to be a ‘golden thread’ running through the whole of the framework, or just paragraph 14? What are “relevant policies for the supply of housing”?

Interpretation has thus far been left to the courts, but it is now time for the government to let us know its views and intentions. The hope is that doing so will bring much-needed clarity – although, of course, some may say that a revised document will merely bring another round of arguments about what those new policies really mean.

“Many of the most sustainable locations for new homes to be built are in fact within green belt land”

A major change is likely to be the introduction of a standard methodology for the calculation of objectively assessed housing need, following the government’s consultation late last year.

The adoption of a standard method will introduce a new level of predictability, transparency and certainty to the process, which many will see as desirable. Certainly, the current system whereby individual local authorities can choose how to estimate housing need isn’t working.

However, many commentators have suggested that the method proposed by the government will lead to large regional disparities in objectively assessed need, with big increases in the South East and reductions in some parts of the North.

It also doesn’t appear that local authorities will be obliged to plan for the full figure arising from the new methodology, with the indication being that some sort of cap on any increase in housing numbers over that in the current plan is likely.

One issue that seems unlikely to be addressed is the contradiction in policy between the focus on increasing the numbers of houses being built and the supposed ‘strong focus’ on maintaining protection for the green belt. There seems little acknowledgement from ministers that a more sensible policy on the green belt is necessary if the housing crisis is to be tackled.

Many of the local authorities experiencing the greatest demand for housing also find themselves constrained by large areas of green belt. Many of the most sustainable locations for homes to be built are in fact within green belt.

The answer should lie in a sensible reappraisal of the function and purpose of the green belt, together with a limited release of suitable land for development. Sadly, politics seems to have trumped economics on this issue.

Similarly, the contradiction between the expansion neighbourhood planning and the imperative to increase housing numbers is also set to deepen. Although the government claims that neighbourhood development plans boost housing supply, many in the development industry are sceptical.

Those with direct experience often find that the effect is to stymie rather than encourage the building of homes. Continuing to increase the importance of neighbourhood plans is likely to exacerbate that effect.

We can only hope that the government chooses to take the bull by the horns and address some of these long-standing issues. An update to national policy is sorely needed. The development industry will be watching and waiting with interest.

Ian Graves is a legal director in the planning team at law firm Shakespeare Martineau

Housing – not just a crisis of quantity

We will never reverse the low quality of the housing stock now being built in this country, until we confront the issues that caused it and are continuing to encourage it.

  1. Right to Buy – Since it’s introduction in 1980 by Margaret Thatcher’s government, Right to Buy has removed over 2 million social housing units from the system. Those in the most desirable areas, such as central London and the towns and villages of the Home Counties will never be replaced like for like, because the land is no longer available.  Even were any existing non-residential sites become available, given the open market value of housing in high demand areas, the private sector will always ensure that it outbid the local council. The Homes and Communities Agency, funded by DCLG, would be equally hard pressed to compete given its relatively limited budget for such uses.

https://www.theguardian.com/society/2015/aug/26/right-to-buy-margaret-thatcher-david-cameron-housing-crisis

The impact of this loss of affordable housing has forced ordinary, working class people further and further out to the edges of our large urban areas, in virtually every area of the country.

  1. Buy to Rent – this triggered a major building programme, which in turn encouraged the developers to produce a large number of lower quality off the shelf housing units, to fill the ever increasing deficit created by the RTB policy.

How many landlord properties are there currently in the market?

Landlords – the stats

– The number of landlords in the UK increased by 7% to reach 1.75 million in 2013-2014

  • In 2014, two million private landlords owned and let five million properties in the UK (Paragon)

Tenants – the stats

– In 2014-2015, 19% of households – equivalent to 4.3 million – were renting privately (English Housing Survey)

– The number of private tenants in England reached 3.84 million in 2011-2012 (English Housing Survey)

– Some 59% of 20 to 39 year-olds in England will be privately renting by 2025 (PwC)

– In 2015 there were 5.4 million households in the UK’s PRS, a number which will grow to 7.2 million by 2025 (PwC)

– In 2015 the PRS accounted for 22% of all UK households (ResPublica)

(homelet.co.uk/letting-agents/news/article/how-many-landlords-and-tenants-are-there-in-the-uk)

  1. Help to Buy – combined with the difficulties experienced by first time buyers in obtaining finance from the normal sources, has seem public money, that should have been spent on replacing the depleted social housing stock, sucked out of the system and placed straight into the pockets of the landowners and developers who are already applying a stranglehold on housing supply via their strategic land holdings and failure to follow through on extant planning permissions.

Even worse, the rules for getting money from the scheme have now been made so lax that, according to the government’s own survey, thousands of those who have used it, didn’t actually need to and could have purchased their own home without financial help from the taxpayer.

The government now plans to compound this, by placing a further £10 billion within their reach, while putting only £2 billion into replacing our severely depleted social housing stock.

The current proposed government funding of £2billion for affordable housing and a further £10billion to extend the Help to Buy scheme, is completely upside down and will simply continue the current lack of supply and lack of delivery we are experiencing.

Social Housing waiting lists

In 2016 there were over 1.2m on council house waiting lists.  This figure is actually down on previous numbers, because of what some might suggest is an attempt by central government to use local government as a way of covering up their failings.  By requiring a tightening up of the criteria for eligibility, tens of thousands of those previously entitled to be listed, have simply disappeared.  These families and of course single under 25’s, have been forced into the hands of what can be an over-priced and sub-standard private sector rented housing market, where security of tenure virtually non-existent and standard of accommodation often a lottery.

https://www.theguardian.com/housing-network/2016/may/12/council-waiting-lists-shrinking-more-need-homes

By 2021, a quarter of the British population will be in rented accommodation.  Much of it private and with potentially many of these tenants struggling to meet the ever increasing rent bill.

https://www.theguardian.com/money/2017/jun/12/one-in-four-households-in-britain-will-rent-privately-by-end-of-2021-says-report

Unless government allows councils to begin and then sustain a major council house building programme, the quantity of housing will always be squeezed by a profit driven market.  Not only will this continue the opportunities for exploitation of tenants, it will also ensure that developers are able to build to the lowest standards, safe in the knowledge that, no matter what they build, it will always be a sellers market.

South Staffs – A totally predictable ‘clusterf###k’ Local Plan Examination

Lots of good points in here, worthy of note for anybody working on their Local Plan now. Too late for us to make any changes (not that we need any, actually that’s up to the inspector to decide for us) as our examination in public starts on 10 Oct in Boston. It’s a public meeting so anybody can attend and listen to the proceedings.

Decisions, Decisions, Decisions

Amongst the names of local authorities that are heading for disaster and have plunged over the cliff despite all warning there are a few sad cases, one that always come up are the likes of St Albans, South Oxfordshire, Erewash and yes South Staffs – all of which think they have a duty to obstruct and stick two fingers up to all of their neighbors.

They have taken advantage of the fact they have a core strategy (without allocations) adopted in 2012 before any overspill form any adjoining area, Black Country, Brum, Stafford, Cannock Chase or Wrekin was set; taking advantage of recent case law (including Cooper Estates v Tunbridge Wells BC [2017; EWHC 224 (Admin)]; Oxted Residential Ltd v Tandridge DC [2016; EWCA Civ 4140]; Gladman Development Ltd v Wokingham BC [2014; EWHC 2320 (Admin)];) that an allocations plan following a recent core strategy does not have to examine…

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Buying property in Britain to get tougher for foreigners

I assume this is more about London than anywhere else in the country.  Even so, one has to wonder how it can possibly help deliver a single, genuinely affordable dwelling within the M25, for an ordinary working person, or family.

Taking highly expensive scarce housing out of wealthy foreign hands and placing into the welcoming arms of our domestic rich list, seems like another form of gerrymandering.  In this case, R.A. ther than manipulating electoral boundaries for political advantage, this could be seen as the manipulation of financial boundaries for political purposes.

How this will ensure that those needing to live in London in order to work, is a mystery and can only create more work for those lawyers expert in international property law.

intriguing comments by Luke Hall MP at the end of the article.  Given his relatively youth and inexperience as an MP, one can only assume that he has either personal experience, or received significant constituency pressure in this respect.

The watered down version now in place, doesn’t seem especially effective at addressing the issue of the many thousands of empty dwellings across the country.  Many of these are in some of the more high demand areas and attempts to prise them out of the hands of absent owners, or uncommunicative lawyers, is frustrating, time consuming and expensive.

Given the limited resources of the majority of councils and the likelihood that there will be more than enough longterm empty propertiesto be dealt with, Luke Hall appears to be making a great deal of noise about issues that would simply never arise.

Copied from Sunday Telegraph 24 September 2017

Home Affairs

By Ben Riley-Smith
FOREIGN buyers will face tougher restrictions on purchasing British property under Treasury plans to help first-time buyers.
Polices could be announced within weeks as getting younger people on to the housing ladder becomes a major part of the Conservatives’ autumn 
 political drive.
“There’s an issue in London with a large proportion of new-build flats being purchased off plan by, particularly, Far Eastern buyers: China, Hong Kong, Singapore, Malaysia,” a Whitehall source said.
“They are bought when the flats are still under construction, meaning first-time buyers don’t get a look-in. That is not just in central London, but in the suburbs and other cities such as Manchester.”
Number 10 and Treasury officials will discuss housing policy this week ahead of the Conservative Party conference in the first week of October and the Budget in November.

Other ideas in the running include accelerating the sale of government-owned land and easing the rules on building on brownfield sites to help boost supply.
Some Whitehall figures also back more borrowing to invest in housing. Sajid Javid, the Communities Secretary, has previously supported the move in public – though the Treasury is concerned about cost.
Theresa May wants her domestic policy agenda to dominate the party conference after delivering her speech in Florence on leaving the EU. Sources involved in the preparations said that housing is likely to become a big theme of the coming weeks as the Tories look to win back younger voters who backed Jeremy Corbyn in June.
Philip Hammond, the Chancellor, told Tory MPs at the 1922 Committee recently that he wanted to address the difficulty faced by first-time buyers.
He called for ideas to be submitted for the November Budget and – alongside student debt – identified it as an area the Tories must tackle to win back young voters. An ally of the Chancellor said he feared people in their twenties and thirties were being “left behind economically” and therefore “punished” the Tories, as the governing party, at the election.
Ministers have already announced “accelerated” plans for selling off Government land for housing, but some Tories feel that more could be done.
Land around railways, owned by the Ministry of Defence or part of the NHS estate is especially being considered by Treasury officials.
The developments come as the Conservatives launched an attack on a little-known Labour policy announced in its housing manifesto during the election.
Labour pledged to restore Empty Dwelling Management Orders – a controversial policy introduced by New Labour in 2006 but watered down by the Tories – to its full strength.
The change would empower councils to take over private homes that have been left empty for six months, rather than two years.
Luke Hall, the Tory MP for Thornbury and Yate, warned: “The return of John Prescott’s bullying powers would mean town hall bureaucrats seizing everyday homes in streets across the country, including those of recently deceased.
“Labour’s hard-Left agenda would entail widespread state confiscation of private property, targeting the elderly and the families.”

More interference in the planning system because the last piece hasn’t worked

There’s nothing here to suggest that this will cause a single new house to be built any quicker than it might otherwise be built under the system we had when we had regional plans and regional spatial strategies.

Eric Pickles must be so proud of himself.  He got a knighthood for convincing everybody to scrap something that was, admittedly unpopular with councillors in the Home Counties and high demand affluent areas.  In doing so, he effectively paralysed the planning system, leaving it to the mercies of his badly drafted developer’s charter, the National Planning Policy Framework.

Copied from The MJ.co.uk
Councils told number of homes they should build
By Dan Peters | 14 September 2017
Updated: 15 September 2017
The Government has told councils the number of homes it thinks they need to deliver every year as part of Whitehall plans to boost housing.

Proposals published by the Department for Communities and Local Government (DCLG) include a standard method for calculating councils’ housing need and an ‘indicative assessment’ for each authority.

The DCLG insisted its proposed system does not set targets but described the figures as a ‘starting point to ensure that it will be quicker for each local area to produce a realistic plan of its housing need’.

Communities secretary Sajid Javid said: ‘We are not attempting to micro-manage local development.

‘We’re not dictating targets from on-high.

‘All we are doing is setting out a clear, consistent process for assessing what may be needed in the years to come.

‘How to meet the demand, whether it’s possible to meet the demand, where to develop, where not to develop, what to develop, how to work with neighbouring authorities and so on remains a decision for local authorities and local communities.’

The DCLG claimed councils in England currently spent an estimated £3m every year employing consultants to work out how many new homes were needed in their area.

Mr Javid continued: ‘This new approach will cut the unnecessarily complex and lengthy debates that can delay house building.

‘It will make sure we have a clear and realistic assessment of how many new homes are needed, and ensure local communities have a voice in deciding where they go.’

A DCLG spokeswoman added: ‘The proposed changes will help boost housing supply and improve affordability.

‘It will help ensure councils work to a consistent approach to plan for more homes in the right places.

‘This is a crucial first step in solving the country’s housing crisis.’

The DCLG also suggested that only those areas where local planning authorities were ‘delivering the homes their communities need’ would be entitled to increased planning fees.

Housing minister Alok Sharma said there would be a 20% planning application fee increase for local authorities that committed to investing the additional income in their planning department, with potentially a further 20% for councils that met demand.

Areas that struggle to meet their needs locally have been told they will ‘need to work with neighbouring councils to plan across a wider area’.

A public consultation will now run for eight weeks.

Housing spokesman for the Local Government Association, Cllr Martin Tett, said: ‘There could be benefits to having a standard approach to assessing the need for housing, but a formula drawn up in Whitehall can never fully understand the complexity and unique needs of local housing markets, which vary significantly from place to place.

‘Ultimately, we need a renaissance in council house building if we’re to deliver the affordable homes this country needs – national ambitions will not be realised without new freedoms and powers for councils.’

Chairman of the District Councils’ Network, Cllr John Fuller, expressed early concerns that a national formula ‘may never take into account all local constraints’.

He continued: ‘Our members will want to be reassured that where there are overriding environment or infrastructure constraints that this must be taken into account in the plan making process.

‘To deliver additional housing growth, district councils must be given greater fiscal freedom and incentives to truly unlock their potential.’