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Council sponsored fly-tipping?

On May 26, 2015, in EPA S33, Local Authorities, by PeterSilverman
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Are householders and commercial organisations in breach of the law by placing plastic bags of refuse on the highway for collection?

Are councils who permit such actions also breaking the law?

Albermarle St 1

Bags of refuse on our pavements are are unsightly and a danger to pedestrians, particularly to the elderly, the blind, the disabled and mothers with push chairs.

They encourage collateral littering sending out the message that the highway is a legitimate place to dump waste.

The red and green bags in this photograph have been supplied to businesses in Albermarle Street by Westminster City Council and one of their approved contractors. They have been placed out on the highway for an evening collection.

In other parts of Westminster, and in many places around the country, residents are asked by their councils to put their domestic waste out for collection in a similar manner.

But surely its an offence to obstruct the highway. If this was done without the authority of the council, it would count as fly-tipping.

So does the placing of a bag of waste on the pavement become lawful if the council asks you to do it? Is the council acting lawfully in permitting you to do this? I think the answer to both questions is “no”. To understand why we need to look at the legislation and see how it applies to domestic and commercial waste.

Highways Act 1980

The following sections of the Highways Act 1980 are relevant:

S130 – Protection of public rights
(1) It is the duty of the highway authority to assert and protect the rights of the public to the use and enjoyment of any highway for which they are the highway authority…
(3) …… it is the duty of a council who are a highway authority to prevent, as far as possible, the stopping up or obstruction of  (a) the highways for which they are the highway authority…..

137 Penalty for willful obstruction.
(1)  If a person, without lawful authority or excuse, in any way willfully obstructs the free passage along a highway he is guilty of an offence ….

Environmental Protection Act 1990

Under Section 33  – Prohibition on the unauthorised disposal of waste  it is an offence to deposit any waste on land without an environmental permit or to allow it to be so deposited (S33 1 (a)).

However S33 (2) says that this does not apply to household waste from a domestic property which is kept within the curtilage of the property.

[DEFRA’s Litter Code of Practice 5.7 and 5.8 says that the illegal depositing of a single bin bag of refuse is “fly-tipping” and an offence under EPA S33]

S46 – Receptacles for household waste.

S46 ( 1) allows councils to require the occupier to place household waste for collection in one or more receptacles.

S46 (4) (e) allows council to specify the steps to be taken by occupiers of premises to facilitate the collection of waste from them.

S46 (5) says no requirement shall be made under subsection (1) above for receptacles to be placed on a highway or, as the case may be, road, unless—

(a) the relevant highway authority or roads authority have given their consent to their being so placed; and
(b) arrangements have been made as to the liability for any damage arising out of their being so placed.

S46 (6) allows councils to prosecute householders who fail to comply with the requirements under this section. (NB there is no facility in the EPA for issuing Fixed Penalty Notices in lieu of a prosecution under S46 (6))

EPA S34 (1) says it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances—

(b) to prevent the escape of the waste from his control or that of any other person.

The courts have held that  “deposit” applies to temporary deposits as well as to permanent ones

Domestic waste

Bags on Street xxIt seems to me therefore that if you place a bag of  waste, outside the curtilage of you property, at the behest of your council both you and your council have committed offences under EPA sections 33 and 34.

I do not believe that a plastic bag counts as a “receptacle”. Even if it did I doubt if any council would have obtained the necessary consent from the highways authority. It would surely be impossible for a highways authority to give such consent in view of the responsibilities imposed on them by the Highways Act.

In most cases the council is also the highways authority. In such cases I assume that a formal process would have to take place and be documented before the assent could be given.

Domestic waste counts as controlled waste. The householder is the producer of the waste.  The council is the carrier. By placing and permitting it to be placed on the highway both parties have relinquished control over it. Both have surely breached EPA S34

Commercial Waste

Similarly when a business places it commercial waste out on the highway at the behest of the council both parties are acting in breach of EPA S33 and S34.

Pictures of waste bags on the pavement in Fitzrovia

Environment Agency asked to investigate breaches of EPA S33 by Westminster and Brighton Councils

Trade waste collection – L B Westminster

Kerbside collection of domestic waste

Brighton council in breach of law over refuse bags

FOI enquiry to LB Westminster

FOI enquiry to Brighton & Hove Council

RNIB Who put that there

Fly-tipping: the law, procedure and traps for the unwary prosecutor

Peter Silverman
27th May 2015

 

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