Property Developer fined over illegal waste
Steven Micklewright of Kangs Solicitors discusses legal requirements on the transfer of waste with reference to a recent waste management prosecution.
North Second Street Limited (‘the company’) has been fined £5,000 and ordered to pay costs having pleaded guilty to failing to keep control of its waste.
During a site inspection by Milton Keynes Local Authority, officers found that parking bays to the front of the development were covered in construction waste, to the point that it was spilling onto public land and highways, with lighter materials being blown along the footpath.
Legal Duty of Care
The duty of care legislation makes provision for the safe management of controlled waste to protect human health and the environment.
Controlled waste is defined in the Code of Practice as:
‘any substance or object that the holder discards, intends to discard or is required to discard’.
The extent of ‘any substance or object’ is very wide but there are some limited exceptions within the Controlled Waste Regulations that are not covered by the duty of care legislation.
Any business that ‘produces, handles or disposes ‘of controlled waste has a legal duty of care to ensure that it looks after its waste properly and has it taken away by an authorised waste carrier.
Failure to comply with this duty of care is a criminal offence and subject to an unlimited fine.
What is the extent of the Legal Duty of Care? |Kangs Regulatory Solicitors
A waste producer, carrier, dealer, broker or manager, MUST take all reasonable steps to;
- Prevent unauthorised or harmful deposit of waste.
- Prevent a breach by any other person of the requirement to have an environmental permit or of any permit condition.
- Prevent the escape of waste.
- Ensure that the recipient of any transferred waste has the correct authorisation to receive and handle it.
- Provide an accurate description of the waste when it is transferred.
In the above case, it was clear that the company failed to take reasonable steps to ensure the waste could not escape its control i.e. failed to prevent it from escaping from the actual development site by allowing it to be stored on the public highway and to blow down the footpath.
Waste Transfer Notice | Consignment Note
Whilst there are a number of ways in which the legal duty of care can be breached, the most common, yet probably least thought of, is the failure to ensure that any recipient of the waste has the appropriate authorisation to receive and handle it.
The required appropriate authorisation is generally granted by a Waste Transfer Notice for non-hazardous waste, or a Consignment Note for hazardous waste.
Most waste is collected and disposed of by a third party and the legal duty is to ensure that that party is properly authorised by virtue of :
- a valid registration as a carrier, broker or dealer of waste; or
- an environmental permit or registered exemption to accept such waste.
However involved, the third party must be asked for evidence of the appropriate authorisation which should then be checked on the Public Register.
Similarly, the collector of the waste must also check that the transferror has complied with all legal requirements.
In all transactions both parties should obtain and retain proper documents showing that the legal requirements have been observed and a copy of the description of the waste transferred must be retained for:
- Two years (non-hazardous waste)
- Three years (hazardous waste)
- Six years (landfill operator for non-hazardous waste)
- Lifetime (landfill operator for hazardous waste)
How we can help?| Kangs Environment Agency Solicitors
We have specialist lawyers with in-depth knowledge of the relevant provisions and regulations surrounding waste management and disposal.
We will provide proactive advice and assistance which includes representation at any interview under caution with either the Environment Agency or Local Authority.
Further, we have experienced advocates with a proven track record of representing clients, both corporate and individual, in relation to these types of offences in Court.
We are able to advise and guide you through the whole process, from the initial enquiry stage all the way through to the conclusion of the case.
If you require any advice, please feel free to contact our specialist environment lawyers through one of the following: