Legal updates
Let’s talk rubbish and the law - John Sones looks at fly-tipping and and what can be done to prevent it occuring on your land
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| Encouragement not to tip |
LAST year, one of our local newspapers featured a farmer who was the victim of hazardous asbestos waste being illegally dumped on his land. The headline was "Farmer: I won't pay asbestos bill", which related to his apparent refusal to pay the clear-up costs of £3,000. Unfortunately, although he had neither caused nor permitted the waste to be dumped, under the current law he is deemed to be "knowingly" keeping it there and has to either have it responsibly removed or get a waste management licence otherwise he risks being prosecuted.
Another source has stated that even though his farm manager had seen the waste which was labelled "asbestos" and in hazardous waste bags being dumped and taken the registration number of the vehicle involved, the person(s) responsible had not been traced. However, the waste has since been thoroughly examined by a registered waste carrier and it is hoped that details found may now lead to a prosecution with the possible recovery of the farmer's costs.
Because of the nature of the waste, a specialist company is required to take it away it, thus increasing the removal costs.
More recently, on the news I saw pictures of a narrow country lane with rubbish along the centre as if a vehicle had driven along tipping rubbish out the back as it went. Rubbish being dumped both on farmland and other areas is, unfortunately, nothing new with a figure of £50 million a year being quoted as the cost to landowners. The government also has stated through Ben Bradshaw MP, "For the period between April 2005 and March 2006, the cost (of clearing illegally dumped waste) was almost £50 million" (making a combined total of over £100 million to both landowners and government).
In this article I will look at some of the issues around this growing problem.
What is fly-tipping? Fly-tipping is the illegal dumping of controlled waste on public or private land and includes items such as household waste, household appliances, waste from building work and demolition, animal carcases, vehicles and vehicle parts. Some items are hazardous, such as asbestos products, chemicals and oil. The effects can be to cause pollution, to be a health risk and cause harm to wildlife and farm animals. The appearance is also usually unsightly, ranging from a small heap to one or more lorry loads.
How big is the problem? The clear-up costs are obviously a measure of the scale of the problem and whether it is increasing. The government is keen to build up a picture of what is happening and has funded Flycapture, a system used by local authorities and the Environment Agency to record incidents. If you are interested in seeing the latest information, log on to the Department for Environment, Food and Rural Affairs (Defra) website at www.defra.gov.uk/environment/localenv/flytipping/flycapture.htm.
Why is rubbish dumped? There are many reasons why rubbish of all kinds is not disposed of correctly. The situation has not been helped by the tightening of the rules on waste disposal in recent years and in certain cases the requirement for a specialist waste remover together with an increase in charges. There are people who are not prepared to travel the distance to their local waste disposal centre as it may be several miles away and so will dump locally instead or may not have the means to take their rubbish there in the first place. In some cases, people may arrive when the centre is closed or be turned away and then decide that they do not want to take their rubbish home again. There are also the "cowboy" contractors who will charge the appropriate rate but then fly-tip so as to save the costs of disposal and thus make more money. Another risk is that landowners faced with a large clean-up bill may then dispose of the rubbish unlawfully perhaps by burying it because they do not see why they should be liable for the removal costs.
Although not yet law, the proposed introduction of a new "bin tax" under local government proposals may also cause more rubbish to be dumped illegally particularly in the current climate of general rising costs. A householder was recently in the news having challenged a fixed penalty notice in the magistrates' court for overfilling the wheelie bin and was subsequently convicted of a criminal offence. What message does this send to a normally responsible person?
How can fly-tipping be reduced? Call me a pessimist but I have used the word "reduced" rather than "prevented" as I do not believe that it will ever completely be stopped. However, there are many ideas and schemes that can help to prevent fly-tipping. Usually, local authorities will provide a low cost or free removal service for pre-booked items and it may be that these schemes are not widely publicised. Also, websites and other means are springing up to help recycle what is waste to you but useful to someone else. They act as a contact point so that someone who wants it can collect your unwanted item from you for free.
What is the legal position? There are several pieces of legislation which set out various requirements and create offences related to unlawful dumping. The Control of Pollution (Amendment) Act 1989 states among other things that carriers of controlled waste, that is household, commercial or industrial waste, must be registered if they do so in the course of a business or with a view to making a profit. It is therefore very important to check that the person removing your waste is registered. Waste regulation authorities and the police also have the power to search vehicles believed to be carrying waste unlawfully.
The Environment Protection Act 1990 (Part ll) s 33 creates the offences of dumping or treating, keeping or disposing of controlled waste in or on land without a waste management licence or in accordance with a licence. This is unfortunately what made the farmer liable. There are defences to this which include proving that all reasonable measures were taken to avoid the commission of the offence.
It may be worth noting that from May 2006, not only did agricultural waste come under the same restrictions (the subject of previous articles in "Smallholder") but also under the Waste Management (England and Wales) Regulations 2006 householders are now prohibited from disposing of waste within the curtilage of their property in a manner likely to cause pollution of the environment or harm to human health. The penalties for dumping waste in England and Wales include a fine up to £50,000 in the magistrates' court as well as community punishment orders or prison sentences of up to five years.
What can I do to prevent it happening on my land?
Physical improvements: one of our local farmers had a gate set back from the road down a very short lane. To prevent cars being dumped there, he erected some makeshift gates by the road and stopped the problem. If it is happening in a "hidden" area, improving the visibility of the site may be a deterrent and/or the installation of lighting. Also, make sure that gates are kept closed.
Good housekeeping: make sure there are no untidy areas which might attract fly-tippers and clear up quickly anything that is dumped. Also, check on any activities on your land legitimate or otherwise to ensure nothing is being dumped. Ensure that your own waste is disposed of in the correct manner.
Deterrent: signs threatening prosecution or making a moral appeal eg "Keep Britain Tidy" may work. An effective publicised prosecution will certainly let any potential fly-tippers know what happens if they are detected. Taking it a stage further if there is a serious problem, consider security patrols and CCTV. I saw a programme recently where the Environment Agency were using hidden cameras disguised as, for instance, a log to detect offenders. A sign can be displayed stating CCTV is in operation (even if it isn't!).
Co-operation: work with the authorities and provide any information that might be useful in finding those responsible and lead to a prosecution. Talk to neighbours maybe getting involved in a local Neighbourhood Watch.
What should I do if I see fly-tipped waste? All incidents should be reported to the local authority. If the waste is likely to be hazardous or large quantities are involved, it should also be reported to the police and the Environment Agency: for England and Wales in emergency 0800 80 70 60 or otherwise 0645 333111; in Scotland call the Dumb Dumpers Stop Line 0845 2 30 40 90 or online www.dumbdumpers. org.
The environmental health department can advise on what should happen next. If you are responsible for removing the waste, you can ask the local authority to do it but there may be a charge. Alternatively, you can arrange for a registered waste carry to remove it but you do have a duty of care to ensure that it is disposed of in the correct manner. Also, if it is your responsibility although not of your choosing, you may need to carry out temporary measures to prevent its spread or access by in particular children. Not only might this be a safety issue, but also it may help preserve evidence against those responsible for dumping it.
The future? The Clean Neighbourhoods and Environment Act 2005 contains several measures that are designed to enhance the powers and capability of local authorities and the courts to tackle fly-tipping but little to assist landowners. There is a protocol on fly-tipping agreed between the Local Government Association and the Environment Agency but a look at this shows that many of the actions are optional and not "must". The Country Land and Business Association (CLA) have been working closely with Bernard Jenkins MP on a ten-minute rule Bill which was intended to amend the Environmental Protection Act 1990. Like many ten-minute bills, it did not get through. One aim of the amendment was to make the Environment Agency or the local authority responsible for clearing hazardous waste that has been dumped on to private land without the knowledge or consent of the landowner as long as the landowner has taken reasonable precautions to prevent it being dumped. Another was to ensure that both must investigate all allegations of fly-tipping.
Whether or not you are directly affected by illegally dumped waste, it is a growing problem which is not likely to stop. By acting responsibly yourself and where appropriate working with others to prevent it happening and/or trace those responsible, you can improve the situation. Apart from the environmental issues which in the worst case scenario threaten public health, one way or another it is very likely that the costs of many removals will come out of our pockets and I am sure that that money could be better spent!
Further information: You can check that a carrier is registered by calling the Environment Agency on 08708 506506. Also, the National Fly Tipping Prevention Group published a guide for landowners and land managers in November 2006 and this can be found at www.environment-agency.gov.uk/nftpg/.
This article is written as a non-expert and advice should be sought from the appropriate authorities.
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