Last reviewed 29 April 2019
On 8 March 2019, Chelmsford Magistrates’ Court ordered a skip hire boss to pay £24,862 in fines and costs following fly-tipping by a rogue trader he had hired to dispose of the waste.
The court heard that Robert Walker was owner and operator of Bob’s Skips in Basildon, Essex. A haulier, who claimed to be working for a genuine haulage company, had made a cold call to Walker’s company looking for material to fill his lorry for a return journey. Walker arranged four of these deliveries. While he had asked for waste transfer notices, he made no further enquiries about the legitimacy of the company and failed to notice that the forms were not filled in properly. It subsequently transpired that the driver did not work for the haulage company that he claimed to and was using fake waste transfer notices.
The court also heard that Walker had no idea where the waste was being taken nor did he check that it had arrived at its destination. The waste was later found fly-tipped at four different locations in Essex. Due to the inaccurate nature of the paperwork, it was not possible to trace the lorry or the driver.
The defendant pleaded guilty to the following:
That, on various dates between 1 January 2018 and 28 February 2018, he failed to comply with the duty of care imposed by s.34(1)(a) of the Environmental Protection Act 1990 in that, being a person that disposes of controlled waste, namely, a skip full of mixed waste, did fail to take such measures as were reasonable in the circumstances to prevent any contravention by any other person of s.33 of the Environmental Protection Act 1990 contrary to s.34(1)(a) and (6) Environmental Protection Act 1990.
He was fined £10,000, ordered to pay £8300 towards the costs of the clean-up of the fly-tipped rubbish and £6532 in costs. He was also ordered to pay a £30 victim surcharge.
The prosecution told the court that Walker had been reckless and breached the duty of care he had when managing waste:
“This unlawful waste disposal could have been prevented if the Code of Practice had been followed. By breaching his duty of care, he avoided the costs and taxes involved in sending waste to a permitted site.”
After the hearing, Environment Agency officer Tom Pickover said:
“We hope this sends out a clear message to waste operators that they cannot take a cavalier approach to its disposal.
The duty of care rules are there to protect the environment and legitimate traders who want to do a good job of disposing of waste properly.”
The main issue in this case was Walker’s failure to check the legitimacy of the driver, breaching his duty of care owed under s.34 of the Environmental Protection Act 1990.
The duty of care requires anyone who produces, imports, keeps, stores, transports, treats or disposes of waste to take all reasonable steps to ensure that waste is managed properly. The duty also applies to anyone who acts as a broker and has control of waste and covers the recovery, preparation for reuse, recycling disposal or treatment of controlled waste.
During waste transfer, the responsibility remains live throughout its complete journey to disposal or recovery. This involves checking the next waste holder is authorised to take the waste, asking the next waste holder where they are going to take the waste, and checking that the intended destination is authorised to accept that waste. If there are any suspicions whether waste is being mismanaged, further detailed checks ought to be carried out. For waste receivers, there is a reciprocal duty to co-operate with the previous waste owner.
The Code of Practice, referred to in Walker’s sentencing, sets out the five particular duties for waste holders, where individuals must take all reasonable steps to.
Prevent unauthorised or harmful deposit, treatment or disposal of waste.
Prevent a breach (failure) by any other person to meet the requirement to have an environmental permit, or a breach of a permit condition.
Prevent the escape of waste from your control, or from your employees’ or waste contractors’ control.
Ensure that any person you transfer the waste to has the correct authorisation.
Provide an accurate description of the waste when it is transferred to another person.
In addition, waster holders much retain a copy of the waste description for transferred or received waste (either electronically or on paper format) for at least two years, depending on the nature of the waste. For further information, consult the Code of Practice.
In practice, this means ensuring that the person who takes control of the waste is licenced to do so and that waste is described in writing, with a prepared transfer note checked for legitimacy and retained. All authorised people will be contained on the public register and copies of their environmental permit or registered exceptions to accept waste ought to both be checked. Records of these checks can subsequently be used as evidence of meeting duty of care obligations. Steps must also be taken to prevent waste escaping control or causing environmental pollution or harm and that waste is stored safely.
While Walker was perhaps an unlucky victim of the rogue trader’s actions, he was in many respects lucky with the sentence — a breach of the duty of care can lead to an unlimited fine following conviction in the magistrates’ court or in the crown court.