What a waste: landlords beware!


Author: Nick Wood


Nick Wood, Associate, Fladgate LLP (nwood@fladgate.com)


 

Introduction

A landowner has been convicted of a criminal offence and given 150 hours of unpaid work and a fine of almost £20,000, all because of waste left at its property by its tenant.

Read on to find out how this happened and how you can avoid making the same mistake.

The facts

Our unfortunate landowner leased part of its Norfolk property to a small waste management company.

The Environment Agency served an enforcement notice on the company and because of this the company stopped trading.

When the company vacated the site it left about 20,166 old mattresses behind, weighing approximately 471 tonnes!

The man behind the company was given a prison sentence and ordered to carry out 200 hours of unpaid work.

The landowner company and its director were also convicted, simply for having all this waste on their land after the tenant had left and not doing enough to deal with it.

The law

The offence the landowner company and its director were convicted of was running a waste operation without the appropriate authorisations.

The landowner could be convicted for this offence because it was deemed to have been running a “waste operation” and to have “knowingly permitted” the unauthorised storage of waste.

The landowner was running a “waste operation” despite not being a waste management company because it was storing waste pending disposal or recovery.

Despite the fact that 40 tonnes of waste were removed after the enforcement notice was served, there was deemed not to be any ongoing clean-up operation. The landowner itself had done little more than engage in preliminary discussions with the Environment Agency.

The landowner “knowingly permitted” the unauthorised storage of waste because it knew about the waste situation at the site but did not remedy it. “Knowingly permitting” something therefore does not require a positive act.

The fact that the landowner’s director was out of the country when the enforcement notice was served was, the court said, not enough to absolve the landowner. There was email correspondence about the waste and the director should have attempted to facilitate the clean-up of the site whilst he was away.

Conclusion

Changes in environmental law have meant that since 2016 the number of waste management companies entering insolvency has increased significantly. As these insolvencies increase, there is clearly a corresponding increase in this risk for their landlords.

This particular decision makes life even more difficult for landlords, who now have to demonstrate either that they are unaware of the unauthorised activity or that they have taken positive steps to prevent the storage of waste from continuing.

So, if you are a landowner and lease your land to a waste management company, be careful! Your tenant may leave you with a “waste operation” you need a permit for.

It would be worth you or your managing agent checking the tenant is complying with environmental law and any environmental notices on a semi-regular basis, to mitigate the risk of this issue materialising.

The checks you carry out on your tenant should involve making sure it has the relevant permissions to carry out its waste operation in place. Seeing and verifying these permissions rather than simply relying on the tenant’s confirmation that that it has them would be advisable.

Finally, if your tenant leaves you with significant waste at your property then you should be proactive and helpful in your engagements with the Environment Agency to ensure it does not prosecute you.


 

 

 

 

 

 


 

 

 

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