Landowners can face criminal liability and financial penalties for unauthorised waste left by former tenants. Landowners must therefore act with due diligence when leasing property to tenants that store or process materials upon or within the landlords property that might mean the tenant is conducting a ‘waste operation’ for the purposes of the Environmental Permitting (England and Wales) Regulations 2010.
Mark Stone, Salhouse Norwich Ltd v Environment Agency [2018] EWHC 994
Salhouse Norwich Ltd, of which Mr Stone is the Director, owns the land off Rice Way in Norwich, which the company leased to Salhouse Recyclers, a mattress recycling entity. Whilst operating on the site, the small waste management firm did not have the mandatory environmental permit or waste exemption. The site in question also had no environmental management system, no fire suppression system nor a fire detection system. In the outbreak of any fire, the Environment Agency (EA) concluded that any plume could contain harmful substances posing a great risk to human health. The EA served an Enforcement Notice on the tenant, requesting that they cease trading immediately. Although the tenant vacated the site, they complied only partially with the notice, leaving approximately 20,166 abandoned mattresses. Whilst the landlord did engage in preliminary discussions with the Environmental Agency concerning the clearance of the site, the plan proposed by the Agency was rejected by Salhouse Norwich Ltd and the waste remained on site with no attempt being made to remove it.
The Environment Agency charged Salhouse Norwich Ltd for having ‘knowingly permitted’ a waste operation on the site, in the form of storage, without the necessary authorisation from the Environmental Permitting Regulations 2010. Salhouse Norwitch Ltd rebutted this charge, arguing instead that Salhouse Recyclers was not under their ownership and that they could not have ‘knowingly permitted’ any waste operation as they were initially unaware of the Enforcement Notice served by the EA. They stated that any subsequent events were to be viewed by the magistrates as part of an ongoing ‘clean-up’ operation.
On the 5th May 2017 the defendants were sentenced to a 12-month community order with a requirement to undertake 150 hours of unpaid community work. Salhouse Norwich Ltd appealed this decision.
This appeal was denied by the court due to the continued presence and knowledge of the mattresses on the site by the landowners. Despite having knowledge of the unauthorised mattresses on the property, the landowner failed to ensure their removal. This came under the terms of a ‘waste operation’, with storage in itself being a positive act of retention.
This case is a tough judgement for landowners, suggesting that they must take positive action if previous tenants leave unauthorised/illegal waste on their land. The mere knowledge of the waste is enough for the landowner to be found liable. If the landowner has knowledge of an unauthorised waste operation on its land, it must take action in attempt to remove it. If not, the landowner must be able to prove ignorance of the unauthorised activity or else have evidence that they have taken positive steps to prevent continued storage. Passive rejection is not enough.
Whilst regulators will tend to pursue tenants as opposed to the landowner, the risk placed on the landowner to deal with waste management liabilities of tenants has undoubtedly risen due to the increased risk of insolvency in small waste management firms. Prior to leasing land, it is crucial that landowners consider risk management measures in order to prevent the risk of such proceedings from taking place. For example, ensuring that the occupier has the necessary permits for the proposed use of the land and that the tenants are of a reputable business and are financially solvent.