In January the Government published its 25 year plan for the environment – A Green Future: Our 25 Year Plan to Improve the Environment. The document sets out the Governments priorities and places environmental protection at its core. The plan seeks to eliminate waste crime and illegal waste sites as one of its priorities.
This commitment to address waste crime is reflected in draft regulations published by the Government which will provide further enforcement powers to regulators. The Waste Enforcement (England and Wales) Regulations 2018 amend the Environmental Protection Act 1990 and Environment Act 1995. The Regulations will provide regulators such as the Environment Agency and Natural Resources Body for Wales with the following new powers:
- Waste removal
- Restrict access to waste sites
The regulator can serve a notice on an occupier or, in specific circumstances the landowner, requiring them to:
(i) remove waste that is being unlawfully kept or disposed of on the land (irrespective of whether or not it was lawfully deposited in the first place) within a specified period (of not less than 21 days); and
(ii) take steps to eliminate or reduce the consequences of the unlawful keeping/disposal of the waste.
The regulator can prohibit access to and the importation of waste into, a site where there is, or was, a regulated facility or an exempt facility (or a part of it) for a specified period, in circumstances where:
(i) there is a risk of serious pollution to the environment or serious harm to human health at the site as a result of the treatment, keeping, deposit or disposal of waste; and
(ii) intervention is required to prevent the risk from continuing.
In exercising its powers, the regulator must issue a “restriction notice” apply to the court for a “restriction order”. Where the regulator issues a restriction notice this is effective up to 72 hours but a notice issued by the court can have effect for up to 6 months. There are also provisions to extend, vary or discharge restriction notices.
In advance of issuing such a notice, the regulator must make reasonable efforts to inform the occupier or owner that the notice will be issued and to consult with them on the arrangements for any access which is required to the premises – access may be required for maintenance for example. It is important to note that the restriction notice will not prevent the occupier or owner itself from accessing the waste site.
Failure to comply with a restriction notice without reasonable excuse will be a criminal offence punishable on summary conviction to a fine. Those subject to the notice can appeal against its issue or terms as well as seeking compensation for financial losses sustained due to restricted access to a site.