FPNs to be introduced for England’s fly-tippers

FPNs to be introduced for England’s fly-tippersFixed penalty notices (FPNs) for fly-tippers will be introduced in England ‘at the earliest opportunity’ following a government consultation into waste crime enforcement.

The move confirms Secretary of State for Environment, Food and Rural Affairs Liz Truss’s statement at the Conservative Party Conference that Defra would “crack down on waste cowboys through on the spot fines, enabling law-abiding businesses to thrive”.

Legislation will also be amended to extend the powers of regulating bodies, after the results of the consultation were published by the Department for Environment, Food & Rural Affairs (Defra) today (9 October).

The UK and Welsh Governments launched the joint consultation on enhanced enforcement powers and other measures to tackle waste crime in February.

Stakeholders in waste management including private companies, local authorities, industry groups and charities gave their views on a number of issues surrounding the powers of the regulators, the Environment Agency (EA) and Natural Resources Wales (NRW), and measures put in place to improve the practice of waste operations in England and Wales.

The consultation ran until May, and of the 2,100 organisations in England and Wales contacted about the consultation, 112 submitted responses.

Powers of the regulators

According to Defra, 80 per cent of respondents supported all of the proposals set out in the original consultation document. It is therefore proposing to introduce legislative amendments in England and Wales that will:

  • enable the regulators to suspend a permit where an operator has breached their permit and there is a resulting risk of pollution;
  • enable the regulators to specify in a suspension notice the steps that must be taken by the operator to remedy the breach of a permit and remove the risk of pollution, and require the operator to erect signage which informs the public about waste that cannot be brought onto the facility;
  • enable the regulators to take steps to prohibit access to a facility;
  • enable the regulators to take steps to remove a risk of serious pollution, regardless of whether the facility affected is regulated under a permit;
  • make it easier for the regulators to make an application to the High Court for an injunction to enforce compliance with an enforcement or other notice by removing the current precondition; and
  • amend the legislation to widen the regulators’ ability to require the removal of waste from land in circumstances where the waste is being unlawfully kept.

Fixed penalty notices to be brought in for fly-tippers

The consultation also called for evidence on a range of other measures related to waste crime and ‘entrenched poor performance at waste operations’.

It found that the majority of respondents supported the introduction of FPNs for fly-tippers. Comments suggested that the FPN system was a simple, quick and cheap way of dealing with offenders, and enabled them to be handled without resorting to often resource intensive and inappropriate prosecution.

Defra says that following this response it will introduce legislation to introduce FPNs for fly-tipping in England at the earliest opportunity, while the Welsh Government is to explore the matter further.

Fly-tipping in Scotland is currently punishable by a FPN of £200, but the government warned in response to the consultation that setting the penalty too high would be counterproductive as it may lead to ‘substantial non-payment rates’.

Landowner liability and other issues

The responsibilities of landowners was another issue highlighted by the consultation, as many respondents agreed that they need to be better informed of potential liabilities associated with housing waste operations on their land.

The EA has already sought to emphasise to private landowners that they are responsible for the clean-up of illegal waste from their land, even if they are not culpable or implicit in its dumping.

However, following the consultation, the government says it will develop options ‘to ensure operators demonstrate they have permission from landowners before they are granted a permit as well as promoting awareness amongst landowners’.

It has also called on industry to promote greater awareness amongst landowners and landlords of their obligations.

Among other issues covered in the consultation was the inclusion of an ‘operator competence test’ in legislation. The majority of respondents agreed that the principle of operator competence should apply to all types of regulated activity carried out under an environmental permit.

There was also, Defra says, ‘clear support’ for ensuring that the regulators can take all aspects of an operator’s current and past performance into account in determining operator competence. This issue, including whether relevant convictions should be spent after 12 months or should instead be disclosable for up to five years as was previously the case, will now be reviewed by the government and regulators.

The regulators’ power should be extended to allow the recovery of costs for investigations and remedial work to prevent or respond to pollution caused by deposition of waste, the majority of respondents said, but a proposed scheme to require compliant businesses to contribute to the clean-up of illegal waste management operations was generally not supported.

Read the full waste crime consultation summary.