New waste penalties for householders proposed

Out-Law News | 29 Nov 2018 | 9:24 am | 2 min. read

Householders in England and Wales who fail to ensure that their waste is properly disposed of could face fines of up to £400 if their waste is found to have been fly-tipped.

The proposed penalties, which are set out in new regulations, are expected to come into force early next year. Householders have been urged to check that waste carriers are properly licensed by the Environment Agency (EA), while the government has also published new guidance for local authorities aimed at ensuring they use their new fining powers proportionately.

"Many people do not realise they have a legal duty to look up waste carriers and we want councils to step up and inform their residents," said environment minister Thérèse Coffey. "We must all take responsibility and make sure our waste does not end up in the hands of criminals who will wilfully dump it and these new powers will help us to crack down on rogue waste carriers."

Clearing up fly-tipping incidents cost English local authorities a combined £57.7 million in 2016-17, with around two third of all fly-tipped waste found to contain household waste, according to the government. Councils also issued 69,000 on-the-spot fines for fly-tipping offences last year.

Householders in England and Wales are under a legal duty to take all measures "reasonable in the circumstances" to ensure that they only transfer waste to an 'authorised person' for disposal - usually the local authority collection service, a registered waste carrier or the operator of a registered site. Currently, if someone fails to meet this duty of care, the only options available to the local authority are issuing a warning or caution or to prosecute the householder for the criminal offence of failing to comply with their waste duty of care, something which councils have been reluctant to do.

The government consulted last year on introducing fixed penalty notices (FPN) for breaches of the householder duty of care, giving authorities an easier and more proportionate enforcement option. The FPN will provide authorities with an alternative enforcement option to prosecuting offenders through the courts.

The government's guidance to local authorities emphasises that FPNs be used proportionately and not as a means of raising revenue; and that consideration should be given to whether the breach is minor and whether the offender is a vulnerable person.

An independent review of the way in which waste crime in England is investigated, policed and enforced recently recommended substantial reform of the current regime in response to the reported increase in involvement in the sector from organised crime. The government will respond to the review's recommendations as part of its upcoming resources and waste strategy.

Environmental law expert Claire Gregory of Pinsent Masons, the law firm behind, said that the proposed new penalties for householders "reinforce the responsibility we all have to ensure that waste is properly handled and disposed of".

"It is important that everyone in the waste chain understands their role and responsibilities given the blight that fly-tipping can have and the extent that such incidents cost local councils," she said. "That said, the government could have targeted the reform further on the waste carriers, brokers and dealers regime."

"The current regime for registration with the EA as a waste carrier, broker or dealer is not particularly strict, so simply checking that you have passed your waste to a registered carrier does not necessarily guarantee that it will not then be fly-tipped. If the government could introduce measures to tighten up the registration scheme and perhaps introduce a 'competence' requirement into these registrations - as is required for waste operators - then this could provide a better check on those who are handing the waste and who ultimately make a choice as to where the waste is deposited," she said.

The government intends to modify the 2016 Environmental Permitting (England and Wales) Regulations in order to raise the standard of operator competence at permitted waste sites and reform the waste permitting exemptions regime to avoid misuse, according to its response to a consultation on tackling poor performance on the waste sector more broadly. These proposals will require additional legislation and, in some cases, further consultation.