Environmental legislation breaches on council land – who is responsible?

Local authorities leasing land to third parties are increasingly leaving themselves vulnerable to prosecution for environmental breaches, such as pollution-related issues involving waste disposal and permit disputes.

Could a council be inadvertently responsible if a recycling company, based on the council-owned land, fails to correctly dispose of its waste?

The answer is complex.

Whether a council is responsible for an environmental breach on their land is very much dependant on the type of offence committed. It is not clear cut and there is no definitive answer on this.

It really depends on what the breach is. In certain waste offences, the waste carrier could be held responsible for the breach, in other situations where the waste originated dictates who is responsible. Local authorities could face prosecution under this category.

However, there are other sorts of pollution offences, including water and air, where the pollution was allowed to happen on their land where both the land user and the local authority could face prosecution.

As the local authority allowed it to happen on their land, even where they weren’t aware that it was happening, they could still be held responsible for this.

Environmental legislation breaches take place across a range of sectors, but local authorities can be more at risk when it comes to some pollution matters.

Permits and exemptions are another area where councils could find themselves facing prosecution in regard to environmental legislation.

There can be occasions where there is confusion as to whose responsibility it is to ensure permits or exemptions are registered.

This can be particularly true in instances where there is jointly owned land which is leased to individuals or companies.

Local authorities, like any other organisation or individual, would need to apply to Natural Resources Wales (NRW) or the Environment Agency (EA) for a permit if it is their responsibility to dispose of waste.

The application would need to set out the information suggesting that the authority meets the necessary criteria, including being the legal operator of the facility and considered as a competent operator by NRW/EA.

Be prepared

They also need to have appropriately qualified managers for the site who’ve undertaken the relevant technically competent persons scheme; keep accurate records of operating hours; and have a manager on site for the necessary and specified time each week.

Exemptions would also need to be registered with the relevant bodies.

There are various different exemptions covering different activities and these are given a code.

You must use the code and provide other details such as the name and address of the location where the activity is being undertaken and the details of the person or organisation undertaking the activity. Professional regulatory advice should be sought to ensure you don’t fall victim to a breach of legislations.

The role of waste carrier or disposer is also a complex issue which could create confusion and lead to a breach of legislation.

A waste carrier is anyone who is operating a waste carrying business; transports building or demolition waste from their own business; and those who collect or dispose of waste as part of their business from other people.

This can be confusing, and the issue of responsibility is again important to consider here. The role of waste disposer/carrier is one which seems to cause local authorities the most problems.

When it comes to environmental legislation breaches local authorities are just as vulnerable as any other organisation, company or individual. However, they can seek advice to avoid facing unnecessary prosecutions.

The same as any individual or company, local authorities should seek specialist advice from solicitors who understand the legislation and the way that such offences can be prosecuted.

Instructing a solicitor should not be the option taken once a prosecution is brought. Indeed, taking advice at an early stage for any aspect of the legislation which is not understood could prevent prosecution and very expensive fines and court costs.

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Emma Harris

Emma Harris

Solicitor-advocate, Blackfords LLP

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