Earlier this year DEFRA sought views on proposals to enhance the enforcement powers to tackle entrenched non-compliance at waste operation sites. Over 2100 organisations in England and Wales were directly contacted and 112 responses were received. An impressive 80% of respondents supported the proposals and DEFRA therefore proposes to introduce legislative amendments enhancing and/or clarifying the regulators’ enforcement powers to-

  • Enable the regulators to suspend a permit where an operator has breached their permit and there is a resulting risk of pollution- with a suggested direct appeal to the first tier regulatory tribunal.
  • Enable the regulators to specify in a suspension notice the steps that must be taken by the operator to remedy the breach of a permit and remove the risk of pollution; and require the operator to erect signage which informs the public about waste that cannot be brought onto the facility,
  • Enable the regulators to take steps to prohibit access to a facility- this is seen as important in cases where a suspension notice has not been complied with. 
  • Enable the regulators to take steps to remove a risk of serious pollution, regardless of whether the facility affected is regulated under a permit or has had its permit suspended.
  • Make it easier for the regulators to make an application to the High Court for an injunction to enforce compliance with an enforcement or other notice by removing the current precondition that the regulator has given due consideration to instituting criminal proceedings. Although this proposal is careful to clarify that it is not intended to reduce the number of criminal prosecutions in my opinion it is another illustration of Whitehall moving away from enforcement in the Criminal Courts [as I pointed out in the seminar].
  • Amend the legislation to widen the regulators’ ability to require the removal of waste from land in circumstances where the waste is being unlawfully kept. This proposal is to cater for the situation where the initial deposit was lawful but the continued presence or storage of that waste subsequently has become unlawful.

Under Part 2 of the consultation evidence was provided in relation to a range of other measures relating to waste crime and entrenched poor performance at waste operations. The most significant finding is a large majority in support of the introduction of Fixed Penalty Notices for fly-tipping which the Government intends to introduce into England through legislation at the earliest opportunity.