Waste Not, Want Not' Landmark Decision Clarifies Local Authority Powers To Tackle Waste Crime

• Published date: 09 June 2020
• Author: Mr Rod Hunt and Anna Willetts
• Subject Matter: Insurance, Criminal Law, Insurance Laws and Products, Crime
• Law Firm: Clyde & Co

Since the launch of the Government's Resources and Waste Strategy in 2018, regulatory authorities have endeavoured to widen their powers to investigate and tackle the problem of waste crime. The launch of the Joint Unit for Waste Crime ("JUWC") in January 2020¹ creates a new taskforce dedicated to tackling serious and organised waste crime, perpetrated by criminal gangs often involved in other serious criminal activity.

Of this activity, local authorities are often responsible for tackling instances of fly-tipping within their area. In this article, we consider a landmark successful challenge to the scope of local authorities' powers and the practical implications for businesses and individuals.

Investigating fly-tipping

More than half of local authorities in England posted an increase in the number of large fly-tipping incidents recorded between 2011-12 and 2018-19². With the increase in incidents in mind, local authorities have been under pressure to identify those responsible for fly-tipping offences and successfully prosecute them. A tactic commonly used by local authorities to identify those who may be responsible is to search for documents bearing personal details in fly-tipped waste.

A practice has emerged over the last few years of local authorities writing to the individuals or organisations whose waste has been found, to request information about the alleged offence (namely passing waste to an unlicensed carrier), or to compel the individual to attend a "voluntary" PACE interview to answer questions.

Local authorities have been making these requests apparently by using their investigatory powers under s.108(4)(j) of the Environment Act 1995 ("the Act"), then threatening prosecution under s.110 of the Act if the recipient did not comply. According to press reports, several individuals have been prosecuted and convicted for s.110 offences in these circumstances.

Local authority environmental health officers do not have the power to arrest those they suspect of offences, but the effect of this practice was that individuals were, nonetheless, being compelled to attend what should be voluntary PACE interviews and face prosecution if they did not comply.

Successful challenge

This practice has now been successfully challenged in the Administrative Court, in the case of Walker v Chelmsford City Council³.

In this case, the local authority sent a letter (purporting to be served under s.108(4)(j)) to an individual, requesting information about which of the...