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Landlords of commercial premises have always been responsible for moving waste left abandoned by an outgoing tenant, but a recent change in the law means landlords may also be responsible for removing the waste of a sitting tenant, and can be prosecuted if they fail to do so.
Fortunately, in many cases the waste left behind by tenants can be moved relatively easily. But not always. The Environment Agency has warned of recent illegal waste scams where landlords and land owners are duped into allowing large amounts of waste onto their land, or where tenants deliberately fill commercial premises full of waste and then disappear into thin air.
Before April 2018 a landlord or land owner would normally only be liable to remove a tenant’s waste where the tenant could not be found, and/or had abandoned the premises. For waste deposited on or after 29 March 2018, the Waste Enforcement (England and Wales) Regulations 2018 gives the Environment Agency in England, and Natural Resources Wales some added powers.
They can serve a notice on the tenant (or occupier) to remove the waste under s59ZB. Where an occupier does not comply with that notice, or where the occupier cannot be found, a similar notice can be served on the landowner under s59ZC. That notice can require a landowner to remove the waste, and/or take steps to minimise the impact of the waste.
Where a tenant is served with a notice and does nothing, the landlord will be the next port of call. Where the landlord does not successfully appeal their notice, they will be liable to remove the tenant’s waste, whether or not the tenant is still in occupation. If they fail to do so they will commit an offence and can be prosecuted. The fines are now unlimited, and imprisonment can also be ordered.
A landowner can appeal the notice on the grounds that they did not keep the waste or dispose of it, and/or they didn’t knowingly cause or knowingly permit the waste to be stored on the land.
Another ground of appeal is that the landlord would have to enter the land unlawfully to comply with the notice.
So if you are a landlord or a landowner, what should you do? It may sound obvious, but as landlord, never consent to the storage of waste generated off site unless there is a permit or exemption in place. Waste generated on site by a tenant can normally be stored for up to 12 months. A lease which allows the tenant to bring in waste will be difficult to argue against. As soon as you become aware of a waste problem on the land, make sure that nothing you say or do can be construed as allowing it remain there. Seek legal advice at an early stage.
Most landlords will give themselves a right to come onto the land, so appeals on the basis that a landlord cannot enter the property lawfully will be rare.
As a landlord, make sure your lease has a suitable indemnity for such costs. The tenant should be compensating you for all such out of pocket expenses.
Appeals are normally be heard by the Magistrates Court. The Court will want to know what the landlord did and what they knew about the waste, and what had been agreed between the landlord and the tenant. An unsuspecting landlord who has no knowledge of the waste should be able to appeal the notice, but a landlord who has given agreement or has allowed waste to remain may end up footing the bill while the tenant remains in the premises. And that bill could be a very big one.
As a landlord, make sure your lease has a suitable indemnity for such costs. Never consent to the storage of waste unless there is a permit or exemption in place. As soon as you become aware of a waste problem on the land, make sure that nothing you say or do can be construed as allowing it remain there. Seek legal advice at an early stage.