Landowners should take care in light of the recent High Court decision in Stone and Salhouse Norwich Ltd v Environment Agency where the Court considered the circumstances in which a landowner could face sanctions in relation to waste left on their land by others – in practice usually either by fly-tippers or former tenants at end of lease.
Salhouse Norwich Ltd let a site to a mattress recycling firm. The tenant had neither an environmental permit nor a waste exemption. The Environment Agency served an enforcement notice requiring the tenant to remove a large quantity of mattresses but the tenant failed to do so, instead ceasing trading, vacating the site and leaving over 20,000 mattresses there.
Although enforcement action is usually taken against the primary polluter, in this case the tenant, here action was taken against the landlord and one of its directors, who despite having no part in the running of the tenant’s business, were charged with the offence of knowingly permitting the operation of a waste storage facility without an environmental permit.
Both were convicted, the company receiving a fine and its director being ordered to undertake unpaid community work.
On appeal, the High Court upheld the Magistrates’ decision concluding that, in allowing the mattresses to remain on the land after the tenant vacated a waste storage operation was being continued; and Salhouse Norwich Ltd and its director knew mattresses were on the land yet did nothing to prevent this. The Court found it was unnecessary to show the Defendants had committed any positive act.
Landowners risk prosecution for the acts of third parties who deposit waste on their land with their knowledge. This regularly arises in the context of a commercial landlord and tenant relationship or, increasingly today, following incidents of fly tipping.
Landowners should give very careful consideration to their tenants’ activities especially if these could involve the processing or storage of waste, whether they have the necessary permits and permissions, whether their tenant is financially solvent and its organisation is well run. Once a lease has been granted, sites should be inspected regularly and continued compliance with permits and permissions should be monitored.
User restrictions in leases should be monitored carefully and swift action taken if any breach is identified. It is vital to get specialist advice as soon as a problem is identified.