A recent planning appeal decision highlights the crucial role of constant and thorough vigilance required by landowners whose land is vulnerable to waste dumping by third parties.* In this decision, Newark appealed to the Planning Inspectorate against an Enforcement Notice issued by Nottingham County Council. The Enforcement Notice alleged that Newark had, without permission, changed the use of the land from the permitted industrial use to the importation and storage of waste. The Enforcement Notice required, among other things, that Newark stop storing waste and remove all the waste that was currently stored on the land within 3 months.
The background to this case provides sober reading for any landowners of vacant sites. In this instance, around 2000 tonnes of waste including food and medical waste was deposited on Newark’s vacant land without its knowledge or consent. As soon as Newark became aware of the problem, it informed the Environment Agency, the police and the Waste Planning Authority.
Newark then granted a short lease to the trespasser and entered into negotiations to sell the property to the trespasser. Negotiations failed. The trespasser was subsequently declared bankrupt.
Appeal against Enforcement failed
Newark appealed against the Enforcement Notice on the grounds set out in 174(2)(a) (planning permission for use ought to be granted) and (g) (compliance period too short) of the Town and Country Planning Act 1990. Newark failed on both grounds. Consequently, despite the fact that Newark was not responsible for the breach, it was responsible for the significant cost of the waste removal; estimated to need 2 HVG movements per day, 5 days per week, for 8 weeks.
Landowners of vacant sites should take note. Passivity in relation to the management of even vacant land may expose you to significant financial liability. Landowners should take all reasonable steps to prevent trespassers being able to dump waste. These measures may include erecting fencing and continued surveillance of the site to ensuring that the police can be called as soon as any attempt at waste dumping is carried out.
Further, if a landowner intends to lease a vacant site for the purposes of waste storage, it is vital that the landowner ensures that all regulatory requirements have been complied with. Similarly, a prudent landowner would carry out at least some due diligence on potential lessees to identify any companies whose directors/shareholders have a history of declaring bankruptcy. In addition, any lease of the site for the purposes of waste storage should include a provision that appropriate funds should be held in escrow to cover the cost of waste removal in certain events, such as lessee bankruptcy or breach of the terms of the lease.
If the worst happens, then landowners should immediately notify all relevant authorities and seek professional advice to explore the likely success of an appeal against an Enforcement Notice. All actions should be treated as a matter of urgency and be carried out with sufficient speed. In this appeal, the fact that enforcement action had already been delayed for 3 years did not help Newark’s case.
Given the potential for significant liability landowners should still actively manage bare land to avoid the risks associated with trespass and dumping.
* The Planning Inspectorate. Decision date: 01 April 2019. Appeal Ref: APP/L3055/C/18/3206116.
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