Fly Tipping Offences s.33 Environmental Protection Act 1990: A Brief Overview

So, the presents have been unwrapped, the food eaten, and the bins are piling up. Garbage collection has been disrupted by the latest wave of Covid-19 and it may be tempting to dispose of your rubbish any way you can. But don’t!

With increasing frequency, especially in more rural areas, the long lists that Magistrates Courts are faced with will be punctuated with fly tipping offences. The practice of simply dumping rubbish along remote country lanes instead of disposing of it legally has received a great deal of publicity in the press in recent years, and there has been a corresponding increase in prosecutions. In this article I shall provide a brief examination of the relevant statute and take a look at the applicable sentences that can apply should an individual be found guilty of the offence of what is more commonly known as “fly-tipping’. For the purposes of this article, I shall be focusing on the illegal disposal of household waste.

The Legislation

The statute under which fly tipping offences are brought is the Environmental Protection Act 1990, specifically s.33.

s.33(1) deals with circumstances which involve knowledge of the offence to be committed. What this means is that a Defendant must have either deposited the waste themselves or knowingly allowed or caused the unauthorised depositing of waste. The vast majority of low-level fly tipping offences under s.33 will be a breach under s.33(1)(a).

This section reads as follows:

(1) Subject to subsections (1A), (1B), (2) and (3) below and, in relation to Scotland, to section 54 below, a person shall not—

(a) deposit controlled waste or extractive waste, or knowingly cause or knowingly permit controlled waste or extractive waste to be deposited in or on any land unless an environmental permit authorising the deposit is in force and the deposit is in accordance with the licence;

 (b) submit controlled waste, or knowingly cause or knowingly permit controlled waste to be submitted, to any listed operation (other than an operation within subsection (1)(a)) that—

(i) is carried out in or on any land, or by means of any mobile plant, and

(ii) is not carried out under and in accordance with an environmental permit.

(c) treat, keep or dispose of controlled waste or extractive waste in a manner likely to cause pollution of the environment or harm to human health.

To begin therefore we need to define controlled waste and, for the purposes of completeness, extractive waste. Extractive waste can be dealt with quickly. It is waste which directly results from the prospecting, extracting, treatment and storage of minerals and the working of quarries. It is therefore far more common that an individual will be charged with an offence regarding “controlled waste” than extracted waste.

While the term “controlled waste” might at first glance seem as though it might refer to something toxic or hazardous, the The Controlled Waste (England and Wales) Regulations 2012 make clear that it covers household, commercial and industrial waste, all of which are further defined in Schedule 1. So yes, your Xmas wrapping paper and packaging from packets of pigs in blankets are controlled waste. Most fly tipping offences that make it to the Magistrates Court involve simple household waste.

The element of knowledge has been strictly interpreted by the courts. It is sufficient for a prosecutor to prove knowledge of the deposit of the waste material. The prosecution need not demonstrate that the Defendant knew that the depositing of any waste was in contravention of the terms of any licence. The courts have also held that knowledge can be inferred from the particular circumstances of any case

There are statutory defences available under s.33(7). Firstly, a Defendant who took all reasonable precautions and exercised all due diligence to avoid the commission of the offence will be able to avail himself of a defence. Secondly, a Defendant who only deposited the waste in an emergency to avoid danger to human health, and who did so while taking all reasonably practical steps to minimise pollution may have a defence available to them. Unsurprisingly, the first defence is the more relied upon in most cases of fly tipping.

Charges brought against an individual under s.33 are often accompanied with a charge under s.34 of the Environmental Protection Act. In short, this section imposes a duty of care on anyone who produces waste to ensure that it is disposed of properly and prevent any breach under s.33. The nature of the offence is set out in subsection 34(1) and reads as follows:

34 Duty of care etc. as respects waste

(1) Subject to subsection (2) below, it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a dealer or broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances —

(a) to prevent any contravention by any other person of section 33 above

While beyond the scope of this article, it is worth being aware of the offence under s.34. It emphasises the need to perform due diligence when disposing of any household waste.

Sentencing

According to the statute an individual found guilty of an offence under s.33 can be sentenced to, on summary conviction a prison sentence not exceeding 12 months, an unlimited fine or both. A person found guilty on indictment can be sentenced to a prison sentence not exceeding 5 years, a fine or both.

Fortunately, there are clear and easily digestible sentencing guidelines in relation to these offences, a link to which can be found here:

https://www.sentencingcouncil.org.uk/wp-content/uploads/Environmental-offences-definitive-guideline-Web.pdf

As such, I shall only highlight the most important elements that spring from these. What stands out most is the clear guidelines in respect of culpability and harm. Culpability is divided into four sections:

  • Deliberate
  • Reckless
  • Negligent
  • Low/No Culpability

Given that offences under s.33 require the element of knowledge, prosecutors will invariably argue that culpability should be assessed as deliberate.

The assessment of harm will of course be fact specific, but the guidelines also provide good detail in respect of this. Harm is also broken down into four categories:

  • Major (category 1)
  • Significant (category 2)
  • Minor (category 3)
  • Risk of category 3

The guidelines then perform a helpful matching process to establish the applicable sentence range for an offence. There are then a non-exhaustive list of aggravating and mitigating factors to be considered before the appropriate sentence can be arrived at.

Apart from any sentence for the offence itself, those convicted under s.33 may also be ordered to pay the cost of any clean up and the legal costs of bringing the prosecution. Courts are very ready to order these and anybody found guilty of such an offence should be aware that these costs are likely to be added to any sentence imposed by the court.

The team at Becket Chambers are regularly instructed in matters arising from fly tipping and are ready to answer any enquiries that you might have. Please do not hesitate to get in touch with us at clerks@becket-chambers.co.uk.