Enforcement of UK Waste Exemptions – No Longer the Light Touch?
Registered waste exemptions are not to be treated lightly and compliance with their conditions is not flexible, as the Environment Agency has reinforced in a recent case. A lengthy investigation culminating in a nearly £20,000 fine has been handed down by Chelmsford Magistrates Court in relation to illegal deposits of waste on farmland in Essex.
The illegal deposits occurred in spring 2015 when a tenant farmer on land in Stow Maries, Essex employed TJ Cottis Transport Ltd to deliver 3,920 tonnes of inert construction waste for use in flood defence works. TJ Cottis then paid the farmer £4,800 for the deposit, a figure reported to be around £24,000 less than the company would have had to pay in landfill charges, had the waste been disposed of correctly.
This deposit was, however, in breach of the U1 registered waste exemption held which allowed 1,000 tonnes of soil and stone to be used on the land only for construction purposes. U1 exemptions allow suitable waste such as crushed bricks, concrete rocks, soil and aggregate to be used to create tracks or paths, or used in landscaping for development. This exemption cannot be used for disposing of waste that is unsuitable and does not permit the use of more waste than is specified in the exemption wording of each waste type. Environment Agency guidance is also clear that as well as registering the waste exemption, parties may need to comply with other legislation including planning permissions and flood defence consents.
In this case, there were various breaches. The waste material used included waste types that were not permitted including plastic and plasterboard which was also unsuitable for the construction of flood defences. Furthermore, greatly more than 1,000 tonnes was deposited, and flood defence works were activities which were not permitted under the exemption without additional consents, which were not obtained. The area where the waste was deposited was also highly environmentally sensitive, being a site of special scientific interest (“SSSI”), a special protection area, a special area of conservation and a RAMSAR site (a wetland site designated of international importance under the Ramsar Convention), requiring specific consents from Natural England.
The deposit was a clear breach of the Environmental Permitting (England and Wales) Regulations 2016 (“Permitting Regulations”) which allow deposits of waste only in compliance with the conditions of the relevant exemption. On 3 August 2017, the tenant farmer pleaded guilty to knowingly causing the illegal deposit. T J Cottis Transport Limited and Jedd Cottis (a director of the company) both pleaded guilty to depositing the waste without an environmental permit and failing to comply with duty of care requirements. They were fined a total of £19,430.
Although the case indicates that the Environment Agency and Natural England take this type of offence very seriously, and the Environment Agency is reviewing compliance with registered waste exemptions more strictly than is often believed, the fine handed down has been criticised as simply being close to the figure the company saved in landfill charges, and therefore not amounting to a sufficient deterrent to future possible offenders.
The Definitive Guidelines 2014 for environmental offences were published by the Sentencing Council and designed to increase fines for environmental offences to ensure that those committing environmental crimes could not profit from those crimes and so that the fines acted as a suitable deterrent. Although the fine in this case was not as high as many would have liked, the investigation and subsequent action by the regulators does show commitment to enforcing the conditions of registered waste exemptions (which are often treated fairly casually by exemption holders). It also emphasises that the mere presence of such an exemption does not allow other consents and permits required under other legislation and/or from other regulators to be ignored.
It is likely that the widespread reporting and interest in this conviction will cause others depositing waste under the remit of a registered waste exemption to consider more carefully the limits of those exemptions in both quantity and type of waste which can be deposited, as well as which other consents may be required.