Fly tipping on agricultural land has historically been less commonly discussed than fly tipping in urban areas, but has a similarly upsetting, and more economically damaging, effect, especially so for private landowners who often have to bear the financial burden for disposing of the waste, even where they did not know or permit the dumping of waste. This article consider the options for a private landowner whose land has had waste dumped on it without their consent or knowledge.
Unfortunately, under the Environmental Protection Act 1990 (EPA 1990) Local Authorities only have a statutory duty to deal with "relevant land" which is open land under their control. Therefore, they are not responsible for ensuring that privately owned land is clear of litter, refuse and fly-tipped materials. They can be convinced to clear the land, but this willingness is likely to decrease the larger the deposit, and they are under no duty to do so.
Local Authorities can bring prosecutions for fly-tipping under the Local Government Act, but they will only do so where "expedient" for the interests of the inhabitants in their area, and any investigation they carry out will be at their discretion. It is always worthwhile approaching the Local Authority in an attempt to encourage them to investigate, as should they bring a successful prosecution, under the Environmental Protection Act 1990, an order can be sought from the court reimbursing the landowner for their clean-up costs.
In contrast, the Environment Agency generally deal with larger deposits (more than a single tipper load), or more hazardous deposits, or where there is evidence of organised criminality to the deposit. Where there is greater harm to the environment or human health, the Environment Agency are more likely to get involved rather than the Local Authority. They will do so whether this takes place on public or private land, depending on whether they can be encouraged to investigate. That in itself can prove difficult, and is no guarantee that they will shoulder the clean-up costs. That said, a successful prosecution by the Environment Agency also allows an order to be sought reimbursing the landowner for their clean-up costs.
In terms of practical application of the law on fly-tipping and littering, there is also a statutory Code of Practice on litter and refuse under the Environmental Protection Act 1990 that provides guidance on how Local Authorities may discharge their duties. Unfortunately, the Code of Practice makes it clear that private owners should clear up fly tipping on their own property, or else potentially find themselves at the receiving end of a prosecution. Whilst the below faces on methods by which a private landowner may find themselves in court, there are myriad other powers by which the Local Authority may either compel the landowner to clean their land, or clean it for them and recover the costs of doing so.
Under Section 43 of the Anti-Social Behaviour, Crime and Policing Act 2014, Local Authorities can serve Community Protection Notices where a course of behaviour has a detrimental effect of the quality of life in the locality, where the behaviour is continuing and unreasonable. If that notice is not complied with, then the Local Authority may carry out the work and recover the cost of doing so from the perpetrator. Breach of a notice is a criminal offence, and on conviction can also result in a fine of up to £2,500 for individuals and an unlimited fine for a company.
In addition, if the deposit significantly severe or hazardous, then it could be treated as a statutory nuisance under Section 79 of the EPA 1990. If a statutory nuisance does exist on the land then the Local Authority must serve a notice requiring the abatement of the nuisance. Similarly to the above, the Local Authority may carry out work to abate the nuisance and recover its costs in doing so. Failure to comply with such a notice is a criminal offence and can result in an unlimited fine.
As well as the above, under section 215 of the Town and Country Planning Act 1990 a notice can be served by the Local Authority where they consider that the amenity of the area of a local planning authority is spoiled, or an area adjacent to their area is spoiled. Such a notice may be served on the owner or occupier of the land requiring the remedy of the condition of the land within a period as specified, and not less than 28 days. If such a notice is not complied with within the time period, then a criminal offence is committed, which can lead to a fine of up to £1000.
One potentially attractive option then would simply be to dump the fly-tipped material onto public land, where it is then clearable at the Local Authority's expense. However, this in itself is a fly tipping offence, which can lead to imprisonment and/or unlimited fines, bans from driving, the seizure of vehicles or property used to commit the offence as well as disqualification from directorships.
Therefore, despite the worrying powers that can be used against a private landowner should they fail to clear items tipped on their land promptly, there is relatively little they can do to avoid having to pay for the clean-up costs of fly-tipping on their privately owned land without a successful prosecution being brought.
Some practical steps to prevent fly tipping occurring in the first place include:
- The use of barriers;
- Keeping areas tidy and removing littered waste;
- Deterring fly tipping through signage, CCTV, lighting and security patrols etc;
- Organising with your neighbours and any existing waste or local partnerships.
- Ensuring that any waste disposal companies you engage have the correct licences obtained from the Environment Agency, as failure to do so could leave you open to criminal prosecution if your items are dumped.
It would be advisable for those worried about the costs of having to clear large volumes of fly tipped waste to seek out insurance cover to mitigate the costs.
In conclusion, the private landowner is right to be concerned about the impact of fly tipping on their livelihood, as it can lead to expensive clean-up costs, and potentially even criminal liability. However, under the statutory guidance Local Authorities are supposed to work in partnership with land owners to deal with heavily littered land. Even though the Local Authority does not have to get involved, and the Environment Agency may decide that the case does not merit it's attention, it is always worthwhile reporting fly tipped waste to the relevant Local Authority in an attempt to encourage co-operation, or where the waste is especially large, harmful or criminal, to the Environment Agency. In either case, either body may prove more co-operative than first expected, especially where the landowner reports the issues promptly and in as much detail as possible.
This article was written by Jeremy Asher.