Annex A
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Legal framework for regulating and controlling waste operations
The definition of ‘Waste’
Controlled waste is defined by regulations[22] and European Union Waste Directives[23]. In addition to the specific categories of controlled waste set out in the regulations, controlled waste is defined simply as any substance or object which is discarded by the holder, which will remain waste until it is processed into a useable form. (At the relevant time, this effectively meant anything that was not deemed to be agricultural waste.)
Waste management licensing
Those who intend to be involved in the deposit, disposal or keeping of controlled waste must obtain a licence from the Agency, which is the Agency’s main tool for ensuring satisfactory environmental standards. The Agency may grant a licence to a fit and proper person involved in the deposit, disposal and keeping of controlled waste in or on land[24], but not in respect of land for which planning permission is required under the Town and Country Planning Act unless such planning permission is already in force[25].
When granting a waste management licence the Agency may impose conditions and require the licensee to carry out works or do other things it deems necessary to protect the environment. If those conditions are not met, or if waste is handled without a licence or in a way that might harm the environment, then the Agency can prosecute under section 33 of the 1990 Act[26].
Section 33 waste management offences
Section 33 has three main elements, which it is important to distinguish. They are that a person shall not:
(a) deposit controlled waste, or knowingly cause or knowingly permit controlled waste to be deposited in or on any land unless a waste management licence authorising the deposit is in force and the deposit is in accordance with the licence;
(b) treat, keep or dispose of controlled waste, or knowingly cause or knowingly permit controlled waste to be treated, kept or disposed of:
(i) in or on any land, or
(ii) by means of any mobile plant,
(iii) except under and in accordance with a waste management licence; and
(c) treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health.
However, subsection (a) above does not apply in relation to household waste from a domestic property which is treated, kept or disposed of within the curtilage of the dwelling by, or with the permission of, the occupier of the dwelling.
Where controlled waste is carried in and deposited from a motor vehicle, the person who controls, or is in a position to control, the use of the vehicle shall be treated as knowingly causing the waste to be deposited whether or not he or she gave any instructions for this to be done[27].
Those found guilty of a section 33 offence can be fined up to £40,000 and/or imprisoned for up to six months upon summary conviction, or upon indictment, an unlimited fine and/or imprisoned for up to two years. In 2000 the maximum fine was £20,000[28].
The section 34 duty of care
A duty of care was created by section 34 of the 1990 Act. Only ‘authorised persons’ as defined by the Act are allowed to manage or move waste, and in doing so they are required to follow regulations and guidance issued by the Secretary of State. A breach of the duty of care is an offence.
Amongst other things, the duty of care regulations require authorised persons who move waste to produce and keep Waste Transfer Notes. A Waste Transfer Note should describe the waste and show its origin and destination to a legitimate place, such as a landfill site or recycling centre. The duty of care is supposed to ensure that a complete and auditable history of controlled waste is available to waste management enforcement bodies.
Any authorised person in the chain of waste management, from its production to eventual deposit/use, must take reasonable measures to prevent other persons from unlawfully depositing, keeping or treating controlled waste in breach of section 33 of the 1990 Act[29].
Power to obtain information
Section 71 of the 1990 Act gives the waste regulation authority the power to issue a notice requiring people or authorities to provide such information as the regulation authority reasonably considers that it needs for the purpose of discharging its functions. It also sets out the potential consequences for those who fail, without reasonable excuse, to comply with such a requirement or who, when complying, make any statement which they know to be false or misleading. These include a fine or imprisonment for a term not exceeding two years, or both.
Statutory nuisance
Under section 79 of the 1990 Act the Borough Council is required to inspect its area for, and investigate complaints about, statutory nuisance, which can be (amongst other things) smoke, fumes, dust, steam or smell that is prejudicial to health or a nuisance.
Under section 80 of the 1990 Act, if satisfied that a statutory nuisance exists, or is likely to occur or recur, the Borough Council is required to serve a notice requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence.
The Town and Country Planning Act 1990
The Town and Country Planning Act 1990 (TCPA 1990) sets out what a planning authority should do if it suspects a breach of planning control in its area[30]. In such circumstances it may issue a planning contravention notice to require information about the use of the land from its owners or others who may use or have an interest in the land[31].
If a local planning authority is of the opinion that a breach of planning control has occurred, it may serve an enforcement notice if it appears that it is expedient to do so after considering the provisions of the local development plan[32]. Such notices may be served on anyone who has an interest in the land to prohibit the breach[33]. Amongst other things, the notice must specify the breach and any steps required to remedy it. This notice may require action be taken to restore the land.
If the local planning authority suspects that the breach of planning control will continue despite the notice, it may serve a stop notice[34]. The stop notice would normally set a short time limit beyond which the prohibited use should not continue. Failure to comply with a stop notice can result in summary conviction and fines of up to £20,000, or an unlimited fine if the person is convicted on indictment. However, if the related enforcement notice is not upheld on appeal or is varied or withdrawn, the planning authority may have to pay compensation for any financial loss arising from a stop notice.
There are time limits within which enforcement action can be taken. These are:
- Four years for operational development which has been substantially completed and for changes of use of any building to a single dwelling house (including flats).
- Ten years for all other breaches including changes of use and non-compliance with conditions.
Once these time limits have passed, the development is lawful and immune from enforcement action[35].
Planning enforcement notices can be registered as a charge on the Local Land Register[36].
If enforcement notices are not complied with, the local planning authority may enter onto the land to put into effect the steps set out in the notice and can recover its costs in doing so. Expenses incurred can be registered as a charge on the land[37].
The local planning authority may also prosecute either in the Magistrates’ Court where a fine of up to £20,000 may be imposed, or in the Crown Court where fines are unlimited[38].
As an alternative to action in the criminal courts, a local planning authority may seek an injunction in the County or High Courts. An injunction can prohibit acts (such as the importation and processing of waste), or order mandatory action (such as the removal of waste and the restoration of land). If an injunction is granted and then broken, contempt of court will have occurred and a judge can order an unlimited fine or imprisonment[39].
A local planning authority may require land owners to tidy land[40].
Other enforcement matters
Suspected sham land transfers
Where it is suspected that a transfer of land was a sham designed to avoid waste control enforcement action, the court may order the rectification of the Land Register to reflect more accurately who actually owns and controls the land[41].
Regulation of Investigatory Powers Act 2000
Any officer wishing to carry out covert surveillance for the purposes of a specific investigation or operation has to apply for authorisation from an officer with designated powers to grant such authorisation. The Act specifies that such powers must be used exceptionally, and only be used with just cause.
Footnotes
[22.] The Controlled Waste Regulations 1992.
[23.] Council Directive 75/442/EEC on waste.
[24.] Section 35, the Enviromental Protection Act (1990).
[25.] Section 36, the Enviromental Protection Act (1990).
[26.] Section 33(6), the Enviromental Protection Act (1990).
[27.] Section 33(5), the 1990 Act.
[28.] Section 33(8), the 1990 Act.
[29.] Section 34(1), the 1990 Act.
[30.] Section 55(3), TCPA 1990.
[31.] Section 33(8), TCPA 1990.
[32.] Sections 171A(1) and (2)(a), TCPA 1990.
[33.] Section 173, TCPA 1990.
[34.] Section 183, TCPA 1990.
[35.] Sections 171B(1) and (3), TCPA 1990.
[36.] Local Land Charge (Amendment) Rules 1966.
[37.] Sections 178(1)(b) and (5), TCPA 1990.
[38.] Sections 179(8) and (9), Criminal Justice Act 1987.
[39.] Section 187B, TCPA 1990.
[40.] Section 215, TCPA 1990.
[41.] Buckinghamshire County Council v Sarbjit Singh [2002] EWHC 2821 (Ch).
