A recent planning appeal decision in England highlights the liability risks for landowners from waste unlawfully deposited on their land.

In April 2019, a Planning Inspector decided that a site owner must comply with an Enforcement Notice to remove waste materials from its site, despite the waste being deposited by a third party "trespasser".

Newark Care (Notts) Limited (“the Appellant”) appealed against an Enforcement Notice issued by Nottingham County Council (reference APP/L3055/C/18/3206116) in relation to an alleged breach of planning control for a change of use from industrial to use for the importation and storage of waste, without planning permission. The circumstances were unusual in that the waste was deposited without consent by a "trespasser" and the police, local waste authority and Environment Agency were alerted to the issue by the landowner. The landowner then granted a short lease to the un-named trespasser and sought to negotiate sale of the site. When talks fell through, the lease was terminated and the landowner sought costs from the trespasser, who then went bankrupt.

The Environment Agency (“EA”) estimated that the site in Newark, Nottinghamshire held 2000 tonnes of household and commercial waste; mostly inert but also including food waste and medical/sanitary waste.

The Appellant sought a deemed planning application for change of use to retain the material on site or, alternatively, a longer compliance period.

The decision

It was perhaps a long shot that a site that was not designed to hold mixed waste in an area close to residential properties would be deemed acceptable. The appellant also had to demonstrate, under the applicable local waste policies that there was a need for the facility.

The Inspector found that no need had been demonstrated; there was a landfill site 2 miles south and there was no other evidence to support a need for waste storage in accordance with local planning policy. The Inspector also decided that the waste would cause unacceptable harm to the character and appearance of the area and to the environment. They considered that the site's proximity to dwellings would impact upon amenity in terms of odour, vermin, flies and noise, while also undermining local policies concerning the provision of new housing.

The appeal was dismissed and the enforcement notice upheld. The Inspector also stated that The appellant will incur costs in complying with the notice, but that is not enough reason for extending the compliance period”. The fact that the waste had sat on the site since 2015 was also a key factor in the refusal by the Inspector to grant an extension of time.

Where does this leave landowners with waste left on their site?

Despite the waste having been deposited by a trespasser without the Appellant’s initial knowledge or consent, ultimately the landowner still had to comply with the Enforcement Notice and cover the substantial costs of the clearance. Although the landowner acted quickly in informing the authorities and attempted to regularise the site, this did not absolve the company of liability.

Although waste liability cases are rarely fought in the planning appeals tribunal, the overall conclusion of the Inspector – and the lack of sympathy for the landowner – was very much in line with the long-established principles that usually play out in the criminal courts. In essence any person that is in possession or control of a site at the time that a breach of waste and/or planning law can be held liable for both the unauthorised change of use and keeping of waste.

For example, in Stone and Salhouse Norwich Ltd v Environment Agency [2018] EWHC 994 the High Court decided that a company which owned a site - used by another for an illegal waste business - was criminally liable for the waste which remained on site following the illegal operator's cessation of trading. The EA had served a waste enforcement notice on the illegal operator but once they ceased trading, the EA alleged that the site owner had knowingly permitted a waste operation to continue when 20,000 mattresses remained on site in breach of the notice. The site owner was convicted for knowingly permitting a waste operation for waste storage, without an environmental permit. In effect the landowner became a "knowing permitter" simply by being in possession and control of the land.

Both of these decisions emphasise the need for landowners to be exceptionally vigilant in ensuring that their land is not subject to unlawful waste activity. Passivity is not enough; vacant sites must be kept secure and appropriate due diligence carried out on prospective tenants. Where land is being specifically let for waste activities, the landlord must ensure that appropriate environmental permits and planning consent are obtained by the tenant. The landlord should also ensure that a financial mechanism is in place to meet site clearance costs if the tenant business falls through. Usually this is a pre-condition of an environmental permit, but the EA is not necessarily always going to confirm that any "financial provision" (such as a bond, escrow account or insurance policy) remains in place or will be adequate.

The above cases show that when it comes to waste, it is not necessarily the polluter that ultimately pays.