With effect from 26 June 2020, the Corporate Insolvency and Governance Act 2020 (CIGA) affects the ability of Contractors to terminate on grounds that the Employer has entered a formal...
Landowner carries the can on illegal waste
The accumulation of an illegal waste wood stockpile in Devon has resulted in the landowner facing prosecution and the clean-up bill, after he was held responsible for knowingly permitting the activities of his tenants.
The facts of the case
The land was leased to a wood recycling business, but none of the material that arrived on the site ever left, creating a 10,000-tonne stockpile covering the area of a football pitch. When the stockpile was destroyed in a massive fire which burned for five days, the Environment Agency prosecuted the landlord as well as the tenants.
The landowner, Anthony Joyner from Totnes, was fined £3,600 and ordered to pay £5,000 costs after pleading guilty to knowingly permitting the keeping of controlled waste on land where no environmental permit was in force, an offence under the Environmental Protection Act 1990. The Fire Service fought the blaze for five days and Mr. Joyner was ordered to pay the Devon and Somerset Fire and Rescue Service compensation of £4,250.
The site was a disused plant nursery with a 1,000-tonne waste exemption. Waste disposal or recovery operations are either regulated, therefore requiring an environmental permit, or exempt which do not require a permit. The latter are generally small-scale waste operations with a set limit, as in this case. If the exemption limit is exceeded on a site and no permit is obtained, the operator will be in breach of the Environmental Permitting (England and Wales) Regulations 2016 and have committed an offence.
This case is indicative of a much tighter approach being adopted to pollution control and performance in the waste sector. This is not the first time that a landlord has been held responsible for knowingly permitting illegal activities by an operator, and the courts are making it clear that ‘knowingly’ simply means being aware that a waste operation is being carried out. The definition does not necessarily require knowledge that it is unlawful, and ‘permitting’ means failing to prevent, so ignorance is no defence.
A further implication for landowners is that where an occupier stops trading and abandons waste, there may be a further offence of knowingly permitting its storage which continues unless and until the site is cleared. Regulators have powers to serve notices on landowners requiring the clearance of unlawfully deposited or stored waste, and failure to comply can also result in prosecution.
Get legal advice early
The default cost risk of landowners granting tenancies involving waste operations is high. Therefore, it is important to obtain legal advice early to ensure proper due diligence on prospective or existing tenants but also clear contractual terms on the use of the site and its monitoring during the tenancy together with appropriate financial security. All environmental licences and permits need to be checked at the outset and then regularly reviewed, ensuring that proper auditing of waste movements occurs.