Fly-tipping and dumping of illegal waste affects the whole community. It is a blight upon grassroots efforts to protect the environment and ensure clean, green spaces for all. Large amounts of resources are dedicated to investigating and prosecuting fly-tipping offences, and those convicted face deterrent sentences in court to discourage future offenders.
Section 33 of the Environmental Protection Act 1990 provides that a person shall not knowingly cause of permit the deposit of controlled waste without a permit. Local authorities spend vast amounts of time and money in investigating incidents of fly-tipping and clearing up waste. Parks, nature areas and beauty spots can be temporarily despoiled or become contaminated by chemicals or asbestos, and can take some time to recover.
With this in mind, the sentencing powers open to the court for fly-tipping are varied. Deterrence is of particular importance when sentencing for fly-tipping offences, as is prevention of future similar offending. The maximum sentence available for fly-tipping offences is a five years in prison. Many offences are dealt with by hefty fines or community orders. Where the defendant is an organisation, the court can impose an unlimited fine.
The court also has a range of ancillary orders available to it. It can order compensation to be paid to cover the costs of clear up. Where profit has been made from fly-tipping activities, confiscation proceedings can be pursued to negate this. The court can also use such orders to make it more difficult for an offender to repeat his behaviour in future. These ancillary orders are of particular relevance when a vehicle was used in the commission of the offence.
For offences under section 33 EPA 1990, the court has the power to order forfeiture of vehicles under section 33C. Offenders also risk being disqualified from driving under the general power found in section 47 PCCSA.
To order forfeiture the court must be satisfied that a vehicle was used in the commission of the offence and that at the time of conviction the offender has rights in the vehicle. It is important to note that the defendant does not need to be the owner or registered keeper of the vehicle. Rights in the vehicle can be evinced by having access to the vehicle or being insured to drive it. The court is not precluded from making an order for forfeiture merely because the defendant has proved they are not the owner.
In considering whether to make an order for forfeiture of the vehicle, the court must have regard to a number of factors. Firstly, the court must consider the value of the vehicle. It must consider the likely financial and other effects on the offender of making the order in conjunction with any other order the court considers making. The court must consider the offender’s need to use the vehicle for lawful purposes. For example, if the vehicle is used to transport the offender’s children to school, or to travel to medical appointments, that must be considered. Finally, the court must have regard to whether the making of the order is likely to inhibit the offender from engaging in further unlawful business activities. If the facts suggest that without access to the vehicle the offence could not have been committed, the court will be less sympathetic to any submission against forfeiture.
When sentencing environmental offences the court will seek both to deter other potential offenders, and to prevent the offender from committing further such offences. Harsh sentences, whether financial penalties or custodial, act as a deterrent to others. Ordering compensation to be paid and confiscating the proceeds of crime can negate any profit from engaging in illegal fly-tipping. Depriving an offender of their vehicle or their driving licence will prevent them from using that vehicle in future instances. In the most serious cases, a custodial sentence sends a clear message to all that fly-tipping will not be tolerated.
The definitive guide to sentencing in Environmental Offences can be accessed here.