On 30 April 2019, Birmingham Magistrates’ Court granted the Environment Agency’s application for a restriction order, the first time that these new powers have been used.
The Court heard that TP & G Specialists Limited, a company based in Haymills in Birmingham, was operating a site without an environmental permit. The site was causing emissions such as dust and smoke to escape and were affecting neighbouring properties. The Environment Agency launched an investigation and officers attended the site on multiple occasions. The company continued to operate illegally, despite these efforts to bring the site into compliance. As a result, the Environment Agency applied to the court for a restriction order, to prohibit access to, and the importation of waste into, premises, or a specified part of premises.
The Environment Agency applied under Environment Act 1995 s.109D, as inserted by the Waste Enforcement (England and Wales) Regulations 2018. Birmingham Magistrates’ Court granted the order, banning access to the site and prohibiting waste being accepted on the site for the next six months. This is the maximum ban available under the legislation.
After the hearing Lyndon Essex, Environment Agency waste officer, said:
“We are determined to make life tough for those who damage the environment and blight local communities. While most waste sites are responsible, the bad apples can cause huge damage along with significant costs to landowners to clear up the mess. We are working hard to ensure those who flout their responsibilities are penalised and the new Restriction Orders help us to disrupt waste crime as it happens.”
This new power to apply to a court for a restriction order falls under the Waste Enforcement (England and Wales) Regulations 2018, which came into force on 8 March 2018. The aim of these Regulations is to enhance environmental regulators’ powers to enforce law and tackle waste crime in England and Wales. In particular, they give authorities the powers to require waste removal where it has been unlawfully kept or disposed of, including waste that was initially lawfully deposited and to restrict access and the importation of waste to premises, as invoked here. They follow a public consultation, in which 90% of respondents supported proposals for the regulator to take physical steps to curb illegal waste activity.
The regulations have inserted new sections in the Environmental Protection Act 1990 and Environment Act 1995. They supplement existing powers in the Acts as opposed to altering existing provisions.
The new restriction order is the most heavy-duty of the orders available to restrict access to waste sites. Environment Agency officers can restrict access themselves, for up to 72 hours, by serving notice where:
there is a risk of serious pollution to the environment or serious harm to human health which is a result of the treatment, keeping, deposit or disposal of waste in or on the premises
the notice is necessary to prevent the risk from continuing.
The court-issued restriction order used here can be applied for when the 72 hours is deemed insufficient.
This is a significant power, backed up with serious sanctions. Failure to comply is a criminal offence, with TP & G Specialists Limited facing a fine, or its directors facing imprisonment for a period not exceeding 51 weeks, or both. While the impact is yet to be fully seen, the power to restrict access may have a knock-on effect by restricting the movement of goods and services into and out of waste sites, which in turn could seriously affect businesses.
This power was introduced alongside the waste removal order, where regulators may serve notice on an occupier of a property which requires them to:
remove waste from the property which is being illegally stored, kept or disposed of, within in a specified period of time (of not less than 21 days), including waste that was initially lawfully deposited
take steps (within the above specified period) to eliminate or reduce the consequences of the unlawful keeping or disposal of the waste.
Failure to comply with a waste removal notice, without reasonable excuse, is a criminal offence, punishable by a fine. The regulator may also remove the waste and recover from the occupier the expenses reasonably incurred in doing so. This power has particular significance for landowners generally. Where there is no occupier, or crucially no occupier can be found without the regulator incurring unreasonable expense, or the occupier has failed to comply with a waste removal order, the Regulations permit the regulator to serve notice on landowners requiring them to remove unlawful waste. Leaseholder and freeholder landlords of regulated or exempted sites may thus be held responsible for unlawful waste on their properties. As a result, it is now particularly important for landlords to ensure that waste obligations are clearly set out in tenancy agreements and that regular inspections are held.
In 2015, it was estimated that waste crime in England alone costs £604 million a year in losses to the waste industry and the taxpayer through lost landfill tax revenues and clean-up costs. Certainly we have seen an increase in enforcement activity and last year, the Environment Agency stopped illegal waste activity at 812 sites. In 2017/18 the EA made 93 successful waste crime prosecutions resulting in 17 prison sentences. These new powers add to the authorities’ armoury to ensure that waste crimes are comprehensively dealt with. If served, companies would be wise to comply with the terms of the order as quickly as possible.