Fly-Tipping: A Case Study

According to the latest available official statistics, local authorities in England dealt with 976,000 instances of fly-tipping in 2019-20.

That was an increase of 2 percent on the previous year, when there were 957,000 reported instances of fly-tipping.

Household waste accounted for just under two-thirds of all fly-tipped waste in 2019-20, which was an increase of around 7 percent on the previous year.

More than two-fifths of fly-tipped waste was deposited on highways and the prevalence of fly-tipping, per 1,000 head of population, was almost twice as high in London as it was anywhere else in England.

In addition to being unsightly and unhygienic, fly-tipping is a costly problem to fix. Industry body The National Fly-tipping Prevention Group (NFTPG) estimates the annual cost of clearing fly-tips, which has to be borne by either the public purse or the private landowner, could be as much as £186 million.

The legislation:

In England and Wales it is an offence under section 33(1)(a) of the Environmental Protection Act 1990 to deposit, or knowingly cause or permit controlled waste to be deposited on any land unless authorised by a valid environmental permit.

Furthermore, section 34 of the Act imposes an obligation on an individual or business to ensure that their waste is disposed of properly by a registered waste carrier.

The maximum penalty for an offence under section 33 is 6 months' custody and/or an unlimited fine on summary conviction; 5 years' custody and/or an unlimited fine on conviction on indictment.

The maximum penalty for an offence under section 34 is an unlimited fine on summary conviction or conviction on indictment.

Regulations are in force that allow either of these offences to be dealt with by means of a fixed penalty notice, but that is usually reserved for smaller scale instances of fly-tipping.

Those offences involving larger scale fly-tips or where the fixed penalty goes unpaid, ignored or contested invariably end up before the court.

The case of Smith vs. Bruddlesford City Council:

Mr Smith, who had recently moved to the UK from Poland, had opened a barbers shop in the suburbs of Bruddlesford. As well of tending to the personal grooming needs of customers, the shop became a bit of a hub for the local community.

Things were going well and Mr Smith had taken on several members of staff to cope with his growing customer base. Keen to improve facilities for his customers, Mr Smith invested a lot of time and money redecorating and refurbishing the shop.

He was in conversation with a customer and happened to mention that he had accumulated waste building materials in the backyard. The customer said he had a van and would dispose of the waste for £50, which Mr Smith thought was a good deal and accepted.

A few days later Bruddlesford City Council received a report of fly-tipping in a back alley. Council officers attended the scene and found business documents linking the waste back to the premises of Mr Smith. The council had a zero tolerance approach to fly-tipping and decided to prosecute Mr Smith for an offence under section 34 of the Act.

Mr Smith admitted the offence from the outset.

The prosecution case:

Waste found in the back lane had been illegally deposited there. Mr Smith had not taken reasonable measures to ensure that the customer he paid to remove the waste was a registered waste carrier. Mr Smith had therefore failed in his duty under section 34 of the Act.

The council requested £400 prosecution costs, which included the £200 cost of removing the waste.

Mitigation:

For his part, Mr Smith acknowledged he had not made adequate enquiries about whether the man he paid to remove the waste was a registered waste carrier. 

As a fairly recent arrival to the UK, he said he did not realise what the rules were. He was remorseful and now understood the problems that can arise when you try to get a job done on the cheap.

He told the court that his business was making a profit of around £1,000 a week.

The sentence of the court:

The court was of the view that Mr Smith had made an honest mistake without malice aforethought.

For all ignorance of the legislation is no defence, the court had some sympathy towards Mr Smith's predicament as a new arrival in the UK, someone unfamiliar with the rules and a non-native speaker of English.

Magistrates were satisfied as to Mr Smith's level of honesty and contrition. He was clearly working hard, making a success of his business and making a positive contribution to the community.

They decided that the most appropriate course of action would be to impose a 6-month conditional discharge, with £400 prosecution costs and £40 victim surcharge.