Copied from Lexology.com online website
United Kingdom March 23 2018
Over the past five months, the government has shown an increasing commitment to cleaning up waste and dealing with waste offenders, most notably through its publication of the Clean Growth Strategy (12 October 2017), the Industrial Strategy (27 November 2017) and the 25 Year Environment Plan (11 January 2018). Whilst these initiatives have been criticised by some for not going far enough or failing to establish concrete obligations or enforcement policies in respect of waste, on 8 March 2018 the Waste Enforcement (England and Wales) Regulations 2018 became law. The Regulations aim to strengthen the powers of environmental regulators to address waste crime in England and Wales.
The Regulations form part of the government’s wider policy intention to tackle waste crime. This is an issue that is also referred to in Chapter 4 of the 25 Year Environment Plan, which highlights the cost of waste crime to taxpayers and the long-term impact of waste on the natural environment. In particular, fly-tipping and poorly managed waste sites lead to problems with fumes, dust, vermin, insect infestations and waste fires, with the latter often causing significant disruption to roads, railways and schools. According to the Environment Plan, the cost to local authorities of fly-tipped waste was £57.7m in 2016/2017, which does not include the additional costs borne by landowners forced to deal with illegal waste disposal.
What do the Regulations do?
As set out in the Industrial Strategy, the government is seeking clean growth as one of its four “Grand Challenges” to boost UK productivity. The government aims to minimise waste by establishing a more circular economy, whereby materials are recycled up the waste hierarchy and are used more efficiently.
To achieve this and reduce pollution, the Regulations provide environmental regulators (the Environment Agency in England and the Natural Resources Body in Wales) with the following new powers:
1. Waste removal
Regulation 2 empowers the regulators to serve notice on an occupier of a property which requires them to:
• remove waste from the property which is being illegally stored, kept or disposed of, within in a specified period of time (of not less than 21 days), including waste that was initially lawfully deposited; and
• take steps (within the above specified period) to eliminate or reduce the consequences of the unlawful keeping or disposal of the waste.
Failure to comply with a waste removal notice (without reasonable excuse) is a criminal offence and is punishable by way of a fine. Additionally, should the offender fail to comply with the waste removal notice, the regulator may remove the waste and recover from the occupier the expenses reasonably incurred in doing so.
2. Restricted access to waste sites
Regulation 3 empowers the regulator to prohibit access to and the importation of waste into a site for up to (i) 72 hours by serving a restriction notice; or (ii) 6 months where the court issues a restriction order, in the following circumstances:
• there is a risk of serious pollution to the environment or serious harm to human health which is a result of the treatment, keeping, deposit or disposal of waste in or on the premises; and
• the notice is necessary to prevent the risk from continuing.
The regulators’ power to restrict access is a significant one and could have a notable impact on the movement of goods and services into and out of waste sites, which could have serious knock-on effects for business.
Failure to comply with a restriction notice is a criminal offence and is punishable by way of a fine or imprisonment for a period not exceeding 51 weeks, or both. Failure to comply with a waste removal restriction order is punishable by either: (i) on summary conviction, to a fine or imprisonment for up to 12 months (or to both); or (ii) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years (or to both).
Impact of the Regulations: cost to landlords
In certain circumstances, as set out below, landlords could find themselves responsible for the cost of removing illegally kept or disposed of waste. Leaseholder and freeholder landlords of sites which house regulated or exempt facilities should be aware that they could be held responsible for unlawful waste on their properties.
The Regulations permit the regulator to serve notice on landowners requiring them to remove unlawful waste if:
• there is no occupier;
• the occupier cannot be found without the regulator incurring unreasonable expense; or
◦ the occupier has failed to comply with a waste removal notice within the specified period.
It will therefore become increasingly important for landlords to ensure that waste obligations are clearly set out in tenancy agreements and that regular property inspections are held. Enhanced scrutiny of a tenant’s financial status should also be considered before tenancies are agreed. This is particularly the case as the powers granted to the regulator by the Regulations are capable of interfering with business practice.
Ahead of the government’s Resource and Waste Strategy, the Regulations come into force on 29 March 2018, with the exception of regulation 2 and certain related transition provisions, which come into force on 8 May 2018.
Osborne Clarke – Kiera Taylor, Matthew Germain and Caroline Bush