Landowners - Beware the waste criminals

According to news reports, up to 75% more waste has been illegally dumped since the introduction of social distancing measures. The reason for the rise is thought to be the closure of recycling centres at a time when many people are taking advantage of the extra time at home to clear out their houses.

Ben Derrington, Head of Business Risk and Regulation at Ashfords LLP comments on legal issues relating to fly tipping, a growing problem for many of our Members.

Waste scams, where agricultural landowners are exploited by criminal gangs, have been making the headlines recently and appear to be a growing phenomenon. Typically the criminals take a lease of land or buildings and then illegally deposit large amounts of waste to avoid landfill costs.

Since 2012, such incidents have cost local authorities £60 million and the costs to landowners are unknown. In the last six years, analysis shows that illegal dumping has grown by over 50%. Statistics indicate that 10 years ago very few cases involved agricultural land but now account for 10% of cases or approximately 100,000 recorded incidents a year. The true number is likely to be even higher.

The key legal warning for landowners is that they can be left with the cost of cleaning up the mess themselves, which can be expensive and time-consuming. If the original waste criminal cannot be located (which is often the case), the landowner is often faced with the legal duty and practical necessity of removing the waste at their own cost.

Even worse, they can face prosecution in their own right where waste issues on their land are not resolved. If a landowner has ‘knowingly permitted’ a business to bring or store waste on their land, and that business was operating without the appropriate permits, the landowner may also be guilty of a criminal offence. In a recent case, a landlord was fined £12,250 (plus legal costs) after leasing land to a waste recycling company which did not have the proper permits. This was in addition to the cost of the clean-up itself, which was estimated at six figures.

Landowners can protect themselves by doing due diligence before granting leases and licences. Specifically, landowners should consider taking the following steps:

• Verify the identity and history of the potential tenant – recently incorporated businesses are a red flag.
• If a tenant operates in the waste sector, you must verify that they hold the correct permits and exemptions to carry out their activity. If you don’t know which permits they require: ask the Environment Agency (EA).
• If you have concerns, the EA can carry out a ‘waste duty of care’ check for you to highlight any concerns.
• Check the EA’s online registers to ascertain whether permits and exemptions have been registered with the EA and are valid.
• Check whether the company has any prosecution or insolvency history.
• Check the Companies House register online: is the registered office of the Company in an unusual location and are the directors listed at Companies House the same people you are dealing with – don’t be afraid to check passports and ID documentation.
• If you are considering waste operations talk to your legal advisers about special arrangements – standard leases will not be suitable and it is often appropriate to ask for large deposits.
• Install robust means of controlling access, so if problems develop you can prevent unlawful access to your land.