We all know that fly-tipping is an offence, but did you know you commit an offence if you pass waste to someone who isn’t licensed?
What is meant by ‘waste’?
This article is referring to household waste. For example, this may mean excess rubbish that does not fit in your general collection bins.
How could I commit an offence of fly-tipping?
You have a ‘duty of care’ to take all measures reasonable in the circumstances to ensure you only transfer waste to an ‘authorised’ person. Please note that if a trades person working at your house produces waste, they are responsible for the removal and disposal.
Most offences of fly-tipping are committed by someone paid to take the waste away rather than the person who produced the waste. This means that you commit an offence if the person you ask to take the waste away is not licensed to do so and then illegally disposes of it.
What is an authorised person?
This is usually the local authority collection service, a registered waste carrier or an operator of a registered site. You can check if a person is licensed on the Environment Agency Website.
What could happen to me?
The government is introducing a fixed penalty notice for breaches of the household duty of care in relation to fly-tipping.
Currently, you could be offered a caution, warning or be prosecuted for failing to comply with your duty of care. The new penalty notice system provides an alternative to a prosecution.
The penalty will range from £150 to £400. The minimum discounted penalty available will be £120. The penalty is set deliberately at a high rate as otherwise it may still be cheaper to use an illegal waste collector. It is intended to act as a deterrent and is therefore set at a rate that is higher than the cost of legitimate disposal.
The guidance produced by the government for local councils states that householders should not be fined for minor breaches and consideration should be given as to whether it is proportionate and in the public interest to issue a notice to a person who is classed as vulnerable.
What if I do not pay the penalty?
If you chose not to pay the penalty you can be prosecuted for the offence through the courts. The typical fine imposed at court is likely to be significantly higher than the penalty notice.
When will the law be brought in?
The law to introduce the penalty is expected to be in force early this year.
How can we help?
If you are invited to attend an interview with any prosecuting agency, such as a local authority, you can have a solicitor present. Dependent upon your means, that advice and assistance may be free of charge to you under the Legal Help scheme.
The government has recently announced that it intends to bring into force a number of provisions contained within the Housing and Planning Act 2016 including banning orders.
From 6 April 2018 the Act will allow local authorities to apply for a banning order where a landlord has been convicted of a ‘banning order offence.’
What is a banning order?
A banning order will ban a person from:
letting housing in England,
engaging in English letting agency work,
engaging in English property management work, or
doing two or more of those things.
The banning orders will operate whether a landlord acts on their own behalf or via a corporate body.
What offences might prompt an application for a banning order?
The following offences are capable of triggering an application for a banning order as they are banning order offences:
Any offence involving:
the production, possession or supply of illegal drugs
violent and sexual offences
will be appropriate banning order offences subject to there being a link between the property being rented out and/or the tenant/household.
The offences below (subject to there being a link between the property being rented out and/or the tenant/household) are also on the list of banning order offences:
An offence under sections 327-329 Proceeds of Crime Act 2002.
An offence under sections 2 or 2A Protection from Harassment Act 1997.
An offence under sections 30 or 48 Anti-social behaviour, crime and Policing Act 2014.
An offence under sections 7, 9, 21 or 22 Theft Act 1968.
An offence under sections 1(1) or 2 Criminal Damage Act 1971.
Illegally evicting or harassing a residential occupier in contravention of the Protection from Eviction Act 1977 or the Criminal Law Act 1977.
Offences under the Housing Act 2004 that will trigger banning orders
Unsurprisingly, any of the following offences under the Housing Act 2004 are also relevant offences for banning orders:
Failure to comply with an Improvement Notice
Offences in relation to licensing of Houses in Multiple Occupation (HMOs);
Offences in relation to licensing of houses under Part 3 of the Act;
Allowing a HMO that is not subject to licensing to become overcrowded;
Providing false or misleading information.
Failure to comply with management regulations in respect of HMOs;
An offence under the Health and Safety at Work etc. Act 1974 where a person contravenes section 36 of the Gas Safety (Installation and Use) Regulations 1998;
Failure to comply with a Prohibition or Emergency Prohibition Order under sections 20, 21 and 43 of the Housing Act 2004;
An offence under section 32 of the Regulatory Reform (Fire Safety) Order 2005.
Can a landlord argue against the making of a banning order?
Yes, you can make representations both to the local authority before the making of the application and to a tribunal if proceedings are commenced.
There are the following protections for landlords facing applications for banning orders:
Before applying for a banning order the authority must give the person a notice of intended proceedings. This notice will inform the landlord that the authority is proposing to apply for a banning order and explain why.
The notice will also stating the length of each proposed ban, and invite the person to make representations within a period specified in the notice of not less than 28 days.
Once the notice has been issued, there are the following obligations:
The authority must consider any representations made during the notice period.
The authority must wait until the notice period has ended before applying for a banning order.
A notice of intended proceedings may not be given after the end of a period of 6 months. This period begins with the day on which the person was convicted of the offence to which the notice relates.
What happens if a landlord breaches the banning order?
Breach of a banning order is a criminal offence. It carries up to six months imprisonment and an unlimited fine. It is also highly likely that confiscation proceedings under the Proceeds of Crime Act 2002 will follow to recover income derived in breach of banning orders.
How we can help you as a landlord
This type of law illustrates perfectly the often-hidden consequences of a criminal conviction. To represent people properly, it is not enough that a solicitor understands only the main offence. Any solicitor you choose will need a wider appreciation of the effects on a defendant. Once these are understood, they will be fully considered during the planning of your defence. As a result, it may not be the solicitor who handles a landlord’s property matters who is best placed to handle a criminal investigation.
Our highly experienced team can assist you in navigating the initial criminal proceedings that can give rise to the banning order application. We also understand confiscation proceedings and skilled in the practice of negotiation with public bodies.
As a result, we will help you work towards the most favourable resolution in your case.
Contact crime and regulatory solicitor Martin Hadley
We will be able to provide you with free and independent legal advice if you are interviewed by the police, whether as a volunteer or under arrest. This is because be have a contract with the government to provide criminal legal aid.
Martin will discuss with you your options for funding any interview with the local authority or court proceedings.
Nottingham criminal solicitor and regulatory lawyer Martin Hadley represented a landlord client. He had been visited by local council Enforcement Officers. They were inspecting homes in multiple occupation to ensure that landlords were abiding by the duties imposed upon them by Section 234 of the Housing Act 2004.
The Management Regulations under this Act are designed to ensure that tenants are provided with safe, good quality housing. The regulations place a heavy burden upon landlords.
Homes in Multiple Occupation
A house in multiple occupation is a property rented out by at least 3 people who are not from 1 ‘household’ (eg a family) but share facilities like the bathroom and kitchen. It’s sometimes called a ‘house share’. You must have a licence if you’re renting out a large HMO . Further information can be found here.
The client’s premises were visited whilst he was undertaking renovation works.
Unfortunately, however, he had failed to maintain:-
common parts in a safe condition
hand rails, or
Interview Under Caution
The Council officers interviewed Martin’s client under caution and with a recording being made. Sensibly, our client chose to instruct Martin prior to the interview and he was present to give advice and assistance throughout the interview process.
Martin’s client did not dispute the allegations. Martin made representations to the council that this was a case that could be dealt with by way of a caution. Such a warning would be taken into account if there were further allegations in the future and a prosecuting authority had to decide whether to bring court proceedings.
The client was understandably happy with the outcome of the investigation. Martin’s approach identified that although the matter was admitted there was an alternative to prosecution and secured the appropriate outcome.
Our client avoided what could have been an expensive day at court as it was likely that he would have had to pay a fine and the local authorities costs for investigating and prosecuting the matter. In addition he would have received a criminal record.
Contact Martin Hadley
If you receive notice that you are under investigation by the local authority as a landlord with homes in multiple occupation, or for one of the range of offences that you can be prosecuted for then please contact Martin on 0115 9599550 or email him here.