What to do when someone fly-tips on your land

Fly-tipping is often in the news, with, for example, mattresses being dumped at the side of the road or a heap of builder's rubble found in a ditch.

It can vary in extent, but even if it only amounts to a single black bag it constitutes fly-tipping. However, some fly-tipping is linked to gangs that coordinate large-scale dumping and prey on people who are unaware that their waste is being dealt with illegally. They present themselves as legitimate waste removal businesses, often to householders, but instead of depositing the waste at permitted facilities, dump it on land.

Names and addresses found in fly-tipped waste have been linked back to householders or waste producers who have paid what they thought were legitimate waste removal contractors for their waste to be removed legally, which was subsequently deposited illegally in unpermitted locations.

Prosecutions usually take place under the Environmental Permitting (England and Wales) Regulations 2016, which require a permit, or exemption where relevant, to deposit waste.

Action can also be taken under section 33 of the Environmental Protection Act 1990, which makes it an offence to deposit waste, or knowingly cause or permit controlled waste to be deposited in or on any land unless an environmental permit authorising this is in force and the deposit is in accordance with the licence.

Notices may be served by the regulator under section 59 of the Environmental Protection Act 1990 on landowners to remove waste from their land, which is usually at their expense. Alternatively regulators may remove the waste and pass the cost to the landowners.

I frequently act for landowners on whose land waste is dumped illegally and who are consequently prosecuted by the regulators, i.e. the Environment Agency, Natural Resources Wales, or local authorities.

This is often unfair, particularly when waste has been dumped in the dead of night and the landowner wakes up to find it on their land with no idea of how it got there or who was responsible. They then have to pay to clear that waste, as well as the costs of dealing with a prosecution or enforcement.

Costs to remove waste vary depending on the nature of the waste – for example, hazardous waste is a lot more expensive to remove than inert or non-hazardous, and if the waste is on a large scale I know of cases where removal cost millions of pounds.

There are also cases where a landowner rents land and buildings to tenants for purposes other than waste storage, but realises later that the tenant has been illegally using the buildings for this purpose.

I have come across this scenario particularly in respect of refuse-derived fuel (RDF) that accumulates, often quickly, in buildings where it is well hidden. RDF is waste that is usually shredded, treated and then may be burned as a fuel, but it often does not reach the end destination and is deposited illegally on unsuspecting landowners' premises. If the tenant subsequently disappears, the landowner is left with what is effectively an illegal waste site without a permit, and they are responsible for the costs of removing the waste to a permitted facility.

Although landowners are obliged by the 2016 Regulations to report illegal waste activity to the regulators, I have had clients who then find themselves being prosecuted for having illegal waste on their land.

In some cases the regulator has decided to be lenient and not taken any action; but its response is difficult to predict, and the enforcement of regulation is inconsistent. For instance, on occasion regulators recognise landowners as victims, but more often than not it is the opposite, which is understandably frustrating.

CCTV can be helpful as well: one client of mine who woke to find fly-tipped waste on his land did have CCTV footage that was used to identify and report the vehicle used to the regulator. In that case the party who had deposited the waste had to remove it.

Where waste is dumped on public land it is a different matter, as taxpayers' money is used to clean it up. For example, if you report fly-tipping online the local authority will remove the waste at its own cost. But it is unlikely to catch the culprit as the offences are usually committed in remote areas with no CCTV.

On the other hand, I have acted for a business where an employee used a company vehicle to remove waste and fly-tip it on a farmer's land, remote from the client's business, in the early hours of the morning. A dog walker witnessed this, photographed and reported it.

The company itself was initially under suspicion, but it became clear that the employee had taken the vehicle without his employer's permission or knowledge. He was then prosecuted and sentenced. However, as he had no means to remove the waste and no finances to pay for removal the farmer on whose land it had been dumped still had to clear it.

Fly-tipping on land remains a big problem, not least for unsuspecting landowners who are so often left with the bill as well as the hassle of removing waste deposited there by a frequently untraceable third party.

Statistics show that small-scale fly-tipping incidents, in ditches and at roadsides, decreased from 2021/2022 to 2023, but large-scale incidents, that is, more than a tipper load, appear to have increased over the past few years. It is these that often occur on private land and that landowners need to be aware of.

While some police forces and local groups appear to be increasing awareness through public liaison, and Defra is aware of the problem on a national scale, it is ultimately frequently the landowner who is left to deal with the problem.

Landowners can try and protect themselves with robust security, making entrances difficult to navigate, installing cameras if possible, and regularly checking the land and tenants' activities, particularly where land is remote and away from the public eye, which makes it an easy target.