When an occupier’s waste becomes a landowner’s problem

A landowner has been convicted and fined after his tenants illegally stockpiled waste wood on his land.

This is just the latest in a series of cases brought by environmental regulators against landowners whose tenants have committed waste-related offences, and all the indications are that this trend will continue. As we highlighted in our May 2018 article ‘Landowners’ liability for occupiers’ abandoned waste’, commercial landlords need to be aware of the risks of incurring liability for ‘knowingly permitting’ waste-related offences committed by their tenants and take action to minimise those risks.

Background

In 2015, Anthony Joyner leased part of Cockwells Nursery, near Totnes in Devon, to Steven Loveridge and David Weeks for a monthly rent of £1,500. Mr Loveridge and Mr Weeks set up a wood recycling business called Woody’s Recycling. Although approximately 10,000 tonnes of wood waste was brought onto the site, none ever left it. The business did not have an environmental permit, and the quantities of wood far exceeded the 1,000 tonnes limit allowed under the site’s exemption.

In early 2016, Mr Loveridge was sent to prison for an unrelated offence. Mr Joyner locked the gates to the site and Woody’s Recycling ceased trading, leaving all of the wood behind.

Mr Joyner approached another wood recycling company and was told that the site could cost up to £750,000 to clear.

In May 2016, the waste wood caught fire. The fire burned for five days, covered an area approximately the size of a football pitch and cost Devon & Somerset Fire & Rescue Service more than £28,000 to extinguish.

Prosecutions

The Environment Agency prosecuted Mr Joyner for knowingly permitting the keeping of controlled waste on land in respect of which no environmental permit was in force, in a manner likely to cause pollution of the environment or harm to human health, which is an offence under the Environmental Protection Act 1990. He pleaded guilty, was fined £3,600 and was ordered to pay costs of £5,000. He was also ordered to pay Devon & Somerset Fire & Rescue Service £4,250.

The Environment Agency reports that it is now taking action against Mr Joyner for the clearing up of the site, which it also has powers to do under the Environmental Protection Act 1990.

Mr Loveridge and Mr Weeks were also prosecuted, Mr Loveridge receiving a sentence of six months in prison, and Mr Weeks a fine of £9,553 and an order to pay costs of £1,767.

What are the risks for landowners?

If an occupier is operating illegally, like Mr Loveridge and Mr Weeks, then a landowner may find himself accused of ‘knowingly permitting’ the illegal activities. The courts have made it clear that in this context, ‘knowingly’ means simply knowing that a waste operation is being carried out, not necessarily that it is unlawful, and ‘permitting’ means failing to prevent.

If an occupier stops trading and abandons waste, then a landowner may find himself accused of a further offence of knowingly permitting the storage of that waste, which continues unless and until the site is cleared. Knowledge of the mere presence of the waste and failure to remove it are all that is required to commit that offence, however the waste came to be there in the first place.

Environmental regulators also have powers under the Environmental Protection Act 1990 to serve notices on landowners requiring the clearance of unlawfully deposited or stored waste. Failing to comply with such a notice may also result in prosecution.

These powers were extended in 2018, as we highlighted in our March 2018 article ‘Imminent changes to waste rules – it’s not all rubbish’.

A prosecution for any waste-related offence can have serious personal, financial and reputational consequences. Site clearance can also be extremely expensive. The estimate of £750,000 that Mr Joyner was given for clearance of his land amounted to more than 40 years’ rental income from his tenants.

What should landowners do?

There are various steps that landowners can take to minimise risks when letting land to occupiers proposing to carry out waste-related operations.

• Carry out due diligence on the occupier. As a minimum, obtain evidence that the necessary environmental permits and planning permissions are in place, that the business is established and reputable, and that it is financially solvent;
• Keep abreast, in general terms, of the occupier’s operations. Steps can then be taken to address any indications of problems at an early stage. DEFRA’s Resources and Waste Strategy, ‘Our Waste, Our Resources: A Strategy for England’, published in December 2018, highlights warning signs of a site being abandoned as stockpiling (waste coming in, but not going out) and repeated compliance breaches;
• Include lease obligations on occupiers to share waste transfer notes, which are a legally required record of waste movements on and off site, and compliance assessment reports, which are produced by the Environment Agency (or Natural Resources Wales) following routine site visits;

Make a careful check of insurance arrangements to understand what protection might be available if the worst happens. It may be possible to obtain a policy enhancement specifically covering remediation costs on the insolvency or disappearance of an occupier.