The Government has recently reaffirmed its commitment to crack down on waste crime in its 25 year Environment Plan. To this end, the Department for the Environment, Food and Rural Affairs (“DEFRA”) is considering measures to address waste crime and fly-tipping as part of the proposed Resources and Waste Strategy, with aims of prevention, detection and tougher enforcement. DEFRA and the Welsh Government are also consulting on proposals to tackle crime and poor performance in the waste sector, which include strengthening the regulators’ assessment and enforcement abilities.
In line with this approach, the draft Waste Enforcement (England and Wales) Regulations 2018 (the “Regulations”) have recently been laid before Parliament and will come into force shortly. The main purpose of the Regulations is to enhance the regulators’ enforcement powers in order to address illegal activity, however, their implementation could have costly repercussions for landlords.
The Regulations will provide the regulators (Environment Agency and Natural Resources Body for Wales) with the following new powers:
The regulator can serve a notice on an occupier (or, in certain circumstances, the owner of land), requiring them to:
(i) remove waste that is being unlawfully kept or disposed of on the land (irrespective of whether or not it was lawfully deposited in the first place) within a specified period (of not less than 21 days); and
(ii) take steps to eliminate or reduce the consequences of the unlawful keeping/disposal of the waste.
Restrict access to waste sites:
The regulator can prohibit access to and the importation of waste into, a site where there is, or was, a regulated facility or an exempt facility (or a part of it) for a specified period, in circumstances where:
(i) there is a risk of serious pollution to the environment or serious harm to human health at the site as a result of the treatment, keeping, deposit or disposal of waste; and
(ii) intervention is required to prevent the risk from continuing.
To take such action, the regulator must issue a “restriction notice”, which is effective for up to 72 hours or apply to the court for a “restriction order”, which can have effect for up to 6 months and can be extended, varied or discharged. Prior to issuing a restriction notice, the regulator is required to make reasonable efforts to inform the occupier (or owner) that the notice will be issued and to consult with them on the arrangements for any access, which is required to the premises for purposes such as maintaining machinery or securing the site. Notably, the restriction notice will not prevent the occupier or owner itself from accessing the waste site.
Non-compliance with waste removal or restriction notices
Failure to comply with the requirements of a waste removal notice issued under the Regulations (without reasonable excuse) is a criminal offence, punishable, on summary conviction, to a fine.
The regulator may also take action itself to remove the waste and then recover the costs of doing so from the occupier or owner of the land or from any other person who knowingly caused or permitted the keeping or disposal of the waste. Where a site is the subject of a restriction order, the regulator may apply to the court for reimbursement of expenditure incurred in securing the site.
Appeals can be brought against the requirements of a notice or the court’s decision to make or extend a restriction order (subject to compliance with strict time limits for bringing appeals). It is also possible to apply to the court for compensation for financial losses sustained as a result of being prohibited from accessing a site by a restriction notice or order. The court may order the payment of compensation where it considers it appropriate to do so.
In circumstances where:
(i) there is no occupier of the site; or
(ii) the occupier cannot be found (without the regulator incurring unreasonable expense); or
(iii) the occupier has failed to comply with the requirement of the waste removal notice within the period specified in the notice,
the regulator can serve a notice on the landowner requiring it to remove the unlawful waste and deal with its impacts.
This will be concerning for the landlords of sites, who could potentially find themselves responsible for the cost of removing waste which is being illegally kept or disposed of by their tenants and undertaking remedial measures to mitigate the impacts of the waste. In view of the growing number of incidences in recent years where commercial landlords have found themselves liable for clearing-up illegal waste left on-site by tenants, such concerns would not appear to be unfounded.
The costs of waste removal can be significant, sometimes running into millions of pounds. Further, the Regulations do not specify the nature or extent of the consequential measures that must be taken to address the impacts of the waste. As such, it is left to the regulator’s discretion to determine the scope of the requirements, thereby potentially inflating the cost to the landlord.
Whilst it is arguable that landlords have always been exposed to the risk of their tenant either becoming insolvent or abandoning the site leaving waste in situ, the new enforcement powers can be exercised by the regulator prior to any such abandonment or insolvency of the tenant, therefore increasing the scope of such exposure. Further, where a restriction order is obtained by a regulator for an extended period, this could potentially trigger a tenant’s insolvency, leaving the landlord responsible for the residual clean-up liability when repossessing the land.
Landlords (particularly institutional landlords) of sites used for purposes related to the waste sector (and sites where there is the risk of such use) will no doubt wish to intensify the due diligence and financial scrutiny under which they place prospective tenants prior to committing to lease their land. It will now also be of increased importance to ensure that leases contain appropriate controls and protections for the landlord to allow it better monitor the tenant’s activities and thereby mitigate its potential exposure before it is too late.