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.
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.
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 individual's three companies was responsible for an alleged offence which had taken place on premises occupied by all three companies. The request for information was sent months after the alleged offence had taken place. The individual did not provide the information and was charged by Chelmsford City Council with an offence contrary to s.110 of the Act for failing to respond to a notice served under s.108(4)(j).
The Defendant was convicted in the Magistrates' Court, but appealed to the High Court on the basis that s.108(4)(j) was not a "free-standing" power and could only be exercised pursuant to the powers of entry also contained within s.108, i.e. the officer could compel individuals to provide information while on-site under s.108(4)(j), but did not have the same powers of compulsion in relation to any later written requests for information.
The Court agreed with the Appellant's case, allowed the appeal and quashed the conviction. The Court confirmed that the power to request information under section 108(4)(j) can only be exercised face-to-face pursuant to the power to enter premises under s.108(4)(a) of the Act, and cannot be exercised independently from that power.
As such, local authorities have no power under the Act to compel individuals or organisations to respond to written requests for information after, or in lieu of a site visit, and no power to use the Act to force attendance at voluntary PACE interviews to answer questions. A failure to comply with such a request does not constitute an offence under s.110 of the Act.
Restriction of powers?
Following this judgment, the Environment Agency retains its own powers under s.71 of the Environmental Protection Act 1990 to serve notices requesting information. There is no equivalent power for local authorities, so whether individuals or companies can be required to provide information is dependent on the investigating body.
This judgment may be seen to be an impediment to local authorities in the investigation of minor fly-tipping offences, most of which will be investigated without the assistance of the Environment Agency or the police. The Court confirmed that it will be for the Secretary of State to confer additional powers for these purposes by regulation if it is deemed necessary for local authorities to carry out their investigatory functions.
Local authorities do have powers under PACE however, and are able to invite suspects to attend an interview. They are then able to prosecute whether or not the suspect attends, if they believe they have sufficient evidence (such as letters with personal details on, found in the fly tipped waste), and a failure to attend may attract an adverse inference at Court. If the individual had no knowledge of such letters and another party had dumped the waste, they would presumably take the local authority up on the invitation to attend the interview to explain the matter.
With the JUWC pushing for tougher enforcement of these offences, it is important for individuals and companies to understand the powers of local authorities, should they become the subject of an investigation. Any written requests from local authorities purporting to compel the recipient to provide information or attend a PACE interview in relation to an environmental offence should now be carefully considered prior to compliance.
3  EWHC 635 (Admin)
Originally published Clyde & Co, May 2020
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