There has been a steady increase in the numbers of landowners who have found themselves liable for the mess created by others on their land. There are a few factors which have led to this increase:
- The incremental increase in landfill tax,
- Increased enforcement of the Environmental Permitting regime,
- Increased pursuit of the criminal offence of waste tipping.
The problem for a landlord is not just the cost of removing any waste when either a tenant has gone bust or some unknown person has just dumped waste and disappeared, but also a criminal one. In March 2015, the criminal liabilities under section 33(1) of the Environmental Protection Act 1990 and Regulation 38 of the Environmental Permitting Regulations 2010 increased to a maximum prison sentence of 5 years or an unlimited fine or both. Section 33(1) provides that:
- It is an offence to knowingly permit controlled waste to be deposited in or on any land without an environmental permit.
- Regulation 38 creates an offence of “knowingly permitting”.
Case law has found that a defendant has “knowingly permitted” when the defendant simply knows that waste was deposited. The defendant doesn’t even need to know that the waste was deposited in breach of any permit.
What can a landowner do?
- Where a landlord proposes to lease land to any form of waste operation, the landlord will obviously need to carry out far more due diligence checks on the potential tenant. Consider obtaining personal guarantees, a sinking fund or bond and ensure during the term of the lease that regular inspections are carried out and prompt action is taken should any problems be indicated.
- There should be certain amendments to a standard form of commercial lease:
- Enable inspection without notice (and not only in emergency situations)
- Set additional conditions as to any future tenant upon assignment
- Consider alerting the regulator and the planning authority to emerging problems in order to avoid allegations of being a “knowing permitter.”
Whether you are a landlord or tenant our expert team can assist. Please contact Tom Warrender for further information.