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Waverley Borough Council Committee System - Committee Document

Meeting of the Environment and Leisure Overview and Scrutiny Committee held on 14/03/2005
Fly Tipping - The Legal Framework

Annexe 1
Fly Tipping - The Legal Framework

1. Generally speaking fly tipping can be defined as the illegal deposit of any waste onto land i.e. waste dumped or tipped onto a site with no licence to accept waste. The type of waste would include general household waste, larger domestic items such as fridges and mattresses, garden refuse and commercial waste such as builders’ rubble, clinical waste and tyres.

2. Fly tipping is a crime and Sections 33 and 59 of the Environmental Protection Act 1990 created an offence of disposing of controlled waste on land in a manner likely to cause pollution of the environment or harm to health. The offence is punishable by a fine not exceeding 20,000, imprisonment for a term of up to six months or both.

3. Under the Environment Protection Act 1990 there was a lack of powers provided for collection authorities (for example, Waverley Borough Council) to investigate matters and to deal with vehicles suspected of carrying waste for fly tipping. These powers mainly lie with the Environment Agency. There is also some blurring of the role to be played by local authorities and the Environment Agency, however, this has been very much clarified by guidance in force.

4. Currently, Waverley adopts an approach that most local authorities have adopted when dealing with fly tipping. Waverley would be responsible for the clearing of sites, however, any major problems would be reported to the Environment Agency, cleaning of the site would still be carried out by Waverley. Waverley would clear any incidents of fly tipping on its own land (including land which the Council are responsible for the management of) and highway land. Waverley does not deal with the clearing on private land as this is a responsibility lying with the owner, but does provide information to private land owners so that they can arrange for clearing. By reporting the situation to the Environment Agency, the intention is that the Agency will follow up by investigating and take relevant enforcement action, possibly prosecuting the persons concerned. Waverley does not prosecute for incidents of fly tipping as it does not have sufficient investigative powers, making it difficult to achieve a reasonable prospect of success due to the lack of these powers. In any event, as mentioned earlier, this function is allocated to the Environment Agency. This is not to say that Waverley could not bring prosecutions at all, however, careful consideration would need to be given to the evidence and consultation with the Environment Agency would be required.

5. Under s.33 of the Environmental Protection Act, a person may be liable to a fine of up to 20,000 and/or imprisonment. There is a power also to seize and dispose of vehicles used for illegal waste disposal. However, these powers are more appropriate for the disposal authority (Surrey County Council) as there are additional powers afforded to the disposal authority under the Control of Pollution (Amendment) Act 1989, in that they can be granted a warrant to seize vehicles. It is unclear whether this power is available to Waverley.

6. Under s.59 of the Environmental protection Act 1990 a collection authority (i.e. Waverley) has power to deal with fly tipping through serving of a notice on the occupier of a land, requiring steps to be taken for removal, reduction or elimination of the deposits. If the notice is not followed, the collection authority may prosecute (whereby a defendant may be liable to a fine not exceeding 5,000) or take reasonable steps to clear and recover reasonable costs of doing so from the recipient of the notice. There is a defence of innocent occupier, in that the notice will be quashed on appeal if held that the occupier did not deposit the waste or knowingly allow or permit it to be deposited.

7. Powers to act immediately are provided in certain cases to remove the waste or reduce the contents of its deposits but these are, in certain circumstances, as follows:

8. The Government has acknowledged that fly tipping has an affect on local communities that can amount to anti-social behaviour, and has reflected this in the Anti-Social Behaviour Act 2003 “the Act”, however, the relevant provisions will not come into force until certain statutory instruments are issued bringing into force the relevant parts of the Act. The Act extends local authorities powers in cleaning land, gives waste collection authorities a strategic role for dealing with the illegal deposit or other disposal of waste (fly tipping), facilitates the definition of this role further to receipt of statutory directions to clarify the role of the authority and the Environment Agency, and extends the range of powers available to them. This is expected to lead to better enforcement of current legislation, a significant increase in investigation activity, better detection of the perpetrators of the crime and, eventually, a reduction on unlawfully deposited waste. The extension of powers include giving waste collection authorities the powers to stop, search and (after the issue of a warrant) seize a vehicle they suspect of being used for the unlawful deposit of waste, and certain powers relating to the investigation of incidents of unlawfully deposited waste.