This article was first published in Local Government Lawyer, and the original article can be found online here.

Jeremy Asher and Stephen Sadler examine the rise in fly-tipping incidents and the tools available to local authorities to tackle the issue.

Fly-tipping has become a more regular sight on our streets and highways in recent years. As highlighted in DEFRA's recently published statistics on fly-tipping, there were 936,000 fly-tipping incidents in the 2015/2016 year, with local authority enforcement actions costing a total of £16.9m over the same period.

To deal with this problem, local authorities have relatively wide powers to investigate, prosecute and clear small-scale fly tipping on public land that merit review.

The Environmental Protection Act 1990 ("the Act"), makes it an offence for any person to deposit controlled waste, knowingly cause or knowingly permit controlled waste to be deposited where they act otherwise than in accordance with a valid environmental permit. Controlled waste includes household, commercial and industrial waste. The word "deposit" has been held to cover temporary deposits, as well as the depositing of waste in circumstances where a valid environmental permit was in place. However where a continuing state of affairs surrounding the deposit places it in breach of a valid environmental permit as in Thames Waste Management Ltd v Surrey County Council [1997] Env LR 148 this can also be classed as a "deposit". As such, a "deposit" could include continuing activities in breach of a permit, so long as the context of the permit suggests that would be an appropriate conclusion to draw.

One of the more common offences that local authorities may engage with are homeowners failing to dispose of their waste properly. The Act also prohibits homeowners from disposing of their waste within the curtilage of their property in a manner likely to cause pollution of the environment or harm to human health.

To deal with these offences, the Act provides the local authority with useful powers to attempt to prevent fly-tipping before it occurs, including powers to search and take a vehicle they reasonably believe have, will or are being used to commit certain waste offences. In addition, local authorities are able to issue fixed penalty notices for offences. These notices can be issued for amounts between £150 to £400.

When an offence has been committed, it can attract the following potential sentences:

  • Where the offence is tried summarily and was committed before 12 March 2015; a term of imprisonment not exceeding 6 months, a fine not exceeding £50,000 or both; or
  • Where the offence is tried summarily and was committed after on or after 12 March 2015; a term of imprisonment not exceeding 6 months, an unlimited fine or both; or
  • Where the offence is tried on indictment; a term of imprisonment not exceeding five years, an unlimited fine or both.

Householders who commit an offence shall be liable on summary conviction to an unlimited fine (or where the offence was committed before 12 March 2015, a fine capped at £5,000) and on conviction on indictment, to an unlimited fine.

As listed in the Sentencing Council's Environmental Offences guidelines, the Court may also make other orders specifying the forfeiture of vehicles used for the commission of the offence, or the forfeiture of property used to commit the offence or requiring that offenders pay the costs associated with the enforcement and investigation of the case.

For individuals that offend, the Court may make ancillary orders banning them from being directors, or disqualifying them from driving, as well as potentially order the forfeiture of a vehicle or property used to commission the offence.

As local authorities must pass both the evidential and public interest tests of the Code for Crown Prosecutors before they can bring a prosecution, it is important to consider evidential issues. Common excuses raised when a person or company are confronted with their fly-tipping range from claims the waste is not theirs, to blaming poor local services and the necessity of dumping their waste.

Whilst these claims are common, as the tests under the Code for Crown Prosecutors must be satisfied, it is important to ensure that proper evidence is collected to firstly be able to justify a prosecution, and secondly to achieve a successful conviction. So long as care is taken in this regard, local authorities can continue to be successful in prosecuting these types of waste offences, which according to DEFRA's statistics, currently result in a 98% conviction rate.

Understandably, the intensity of the focus on fly-tipping will vary between local authorities. However, DEFRA's statistics on the prevalence and impact of fly-tipping make concerning reading, and the importance of combating the issue will only become more apparent with time. Where a strong line is taken against offenders, significant savings can be made both by making it harder for repeat offenders to continue fly-tipping, and by deterring others from offending with publication of successful prosecutions.