Are you having a pre-christmas clear-out? Are you undertaking home improvements and renovations before the weather starts to turn? It may be that you are sprucing up your property to sell on or let out, but whatever the reason, there is invariably a fair amount of household waste that is created as a result. Nathan Taylor-Allkins, Crime and Regulatory Solicitor, looks at the householder’s duty of care regarding waste removal and how easily homeowners can find themselves ‘knee-deep’ in problems if they don’t take the necessary precautions.
You can picture the situation: you have too much rubbish to take to your local tip yourself or the items are bulky and difficult to move. You don’t want to have to pay for a skip and you want a cost-effective way of getting rid of your waste. You see an advert (most likely nowadays on Facebook) offering a cheap, quick rubbish removal service. You contact them and arrange for the waste to be taken away, cash in hand and you think no more of it. But what happens if you then get a knock on the door or a call from your local Council saying that they believe waste from your waste has been fly-tipped and not disposed of properly?
This situation is happening more and more frequently and homeowners are exposing themselves to potential prosecution by not appreciating, or in most cases simply not knowing about, their obligation to check that the person they are handing their waste to is authorised to take it.
What do you need to know?
Firstly, anyone that as part of a business (1) transports waste; (2) buys, sells or disposes of waste; or (3) arranges for someone else to buy, sell or dispose of waste must register to do so with the Environment Agency. This means that your ‘friendly neighbourhood waste collector’ offering their services cheap on Facebook are unlikely to be permitted to actually take your waste.
As a home-owner, the duty arises from section 34(2A) of the Environmental Protection Act 1990, which states that:
“it shall be the duty of the occupier of any domestic property in England or Wales to take all such measures available to him as are reasonable in the circumstances to secure that any transfer by him of household waste produced on the property is only to an authorised person or to a person for authorised transport purposes.”
Failing to comply with this duty is an either-way offence, meaning that both the Magistrates and the Crown Court can deal with these offences. Ordinarily, only the most serious cases are sent to the Crown Court but the maximum penalty in either court is an unlimited financial penalty.
As there is no risk of imprisonment, this means that legal aid (i.e. publicly funded representation) will be unavailable should you seek legal assistance.
What is the process if the Council get involved?
The procedure normally only ever arises when waste is fly-tipped and the council are looking for those responsible. Invariably, the only personal details contained in the waste will be yours and this will be used by the Council of the area concerned to identify you. The Council may write or contact you to arrange a formal voluntary interview (under police caution) to obtain your account and to see whether you can discharge your duty of care. The evidence available to the council of the actual fly-tipping perpetrator will most likely be non-existent prior to the interview and there are important considerations for you in whether to attend the interview at all and whether you give an account in the interview. Obtaining specialist legal advice is key to protecting yourself and limiting your potential liability.
So what should you do to discharge your duty of care?
There is no definitive test for what all reasonable measures are in any given situation and it will depend on the precise facts. However, the following, which is not designed to give any form of legal advice or be an exhaustive list, should help identify what steps might assist you to demonstrate to any investigator that you have given due consideration to who is disposing of your waste:
- Ask for details of their waste carrier registration (you can check if they are registered waste carriers by searching the Environment Agency's public register);
- Ask questions about their business; their plans for your waste and how they intend to dispose of it lawfully (don’t be afraid to ask – remember it is your responsibility and duty of care);
- Record the names and if possible addresses of those involved in removing your waste, as well as the vehicle registration numbers of any vehicle used (if waste is found dumped illegally and traced back to you, investigators will have more information with which to trace the culprits; the more information that can be provided, the greater the probability of the Council being able to tackle those responsible and hopefully the less likely it would be that you will be prosecuted);
- Ask for a proper invoice and receipt;
- Never accept unsolicited offers to have waste taken away;
- Consider getting more than one quote and expect to pay a reasonable fee (the saying you get what you pay for is very applicable here and whilst the opportunity of using a cheap service might be tempting, the fees that legitimate waste carriers have to pay to dispose of waste that they collect are not cheap. An unusually low quote, or an offer to take rubbish away for free in order to profit from any scrap metal that may be among it, should be treated with suspicion).
I am sure that the vast majority of cases involving an unregistered person or company end with the waste being disposed of correctly and no one is any the wiser. However, the risks are significant and someone who may seem persuasive and genuine in person or over the phone may not have the intentions they purport to have. Should you proceed with such a transaction, lack of knowledge of the homeowners’ duty is not a defence and you may find yourself being prosecuted by your local Council with the prospect of receiving a criminal conviction and record.
If you would like to discuss any of the issues raised in this article with one of our specialist solicitors in our Regulatory team, please contact us on 01908 202150 (Milton Keynes) or 01223 411421 (Cambridge).