When are landowners liable for their tenants’ waste crimes?

When is a landowner liable for waste crimes committed by their tenant? Circular Online spoke to environmental law experts about this complicated area of legislation.

A landowner who knowingly permits their tenant to commit a waste crime on their premises can be prosecuted by the Environment Agency.

While this may seem clear cut, in the complex world of environmental and property law, what knowingly permitting means can be hard to pin down.

Last year, Karen Bennett, a landowner in Essex, was found to have knowingly permitted her tenant to operate an illegal waste site.

She was ordered to pay £9,000 in fines and costs at Basildon Magistrates Court after an investigation by the Environment Agency (EA).

The tenant, Mark James, was sentenced to 10 months imprisonment and told to pay a victim surcharge of £187.

What could Bennett have done to avoid prosecution? How can a landowner avoid ‘knowingly permitting’ a tenant to commit waste crime on their premises?

What does ‘knowingly permit’ actually mean?

Former CIWM President Dr Anna Willetts, gunnercooke llp, and Tom Flavin, 25 Bedford Row, represented Bennett and told Circular Online that while their client knew about her tenant’s offending, she didn’t permit him to do it.

Bennett had several meetings with James where she told him to cease his activities and, Dr Willetts said, each time he was ‘rude, abusive and threatening’.

Dr Willetts continued that her client made repeated attempts to remove James from her land and her failure was her lack of engagement with the Environment Agency.

A spokesperson for the EA said Bennett was given a formal warning and received six sets of written advice and guidance from the regulator.

The spokesperson continued: “At no stage did she report any threats or abuse from Mark James and she rejected opportunities to meet with the Environment Agency to give her side of the story.”

Dr Willetts argues that while some landowners, like her client Karen Bennett, know about their tenant’s illegal activity and are actively trying to stop them, they are still being prosecuted.

“The legislation as worded is fine for landowners who do ‘knowingly permit’, such as those who are in cahoots with their tenants to blatantly operate illegal waste sites,” Dr Willetts said.

The legislation as worded is fine for landowners who do ‘knowingly permit’, such as those who are in cahoots with their tenants to blatantly operate illegal waste sites.

“What is particularly irritating, and demonstrates a complete lack of consistency in the EA’s approach on this point, is some landowners are treated as victims of the offence, rather than a suspect, asked to be witnesses for the prosecutions and the Agency has sought to obtain compensation for them via the prosecutions.”

Dr Willetts believes once a landowner reports a tenant to the EA, the regulator should be obligated to assist them.

Angus Evers, Partner at Shoosmiths, told Circular Online there is ‘no legal requirement’ for landowners to report waste crimes committed by their tenants to the EA.

“My past experience of trying to enlist the EA’s help has, however, not been positive,” Evers, co-convenor of the UK Environmental Law Association’s ( UK ELA) Waste group, said.

“It is often a difficult judgement call to decide whether to try to get the EA involved in the hope or expectation, that they will use their enforcement powers against the tenant.

“They have tended to regard it as the landowner’s, rather than their, responsibility to deal with the tenant and when, as usually happens, the tenant disappears or goes insolvent the EA blames the landowner and threatens and/or takes enforcement action against them.”

What should a landowner do if their tenant is using their site for waste crime?

Chloe Meredith, a senior expertise lawyer in global law firm Ashurt’s dispute resolution practice, and Joanna Fox, a senior associate in the planning and environment practice, told Circular Online if a landowner’s tenant were committing a waste crime on their site, they would be advised to seek legal advice, given the potential ‘criminal liability exposure’.

Meredith and Fox explained that the landowner may be able to forfeit (terminate) the lease if their tenant commits a waste crime, by exercising a contractual right to forfeit.

However, they clarified that the landowner cannot forfeit the lease immediately upon becoming aware of the waste crime; there are several steps they must complete first.

Firstly, they say the forfeiture clause must be engaged and it is common for a forfeiture clause to allow the landowner to take steps towards termination if the tenant breaches any of the lease’s terms.

A tenant committing a waste crime is likely violating specific environmental covenants in the lease. Even if there are no specific environmental covenants, the tenant might still be breaching other covenants, such as:

Restrictions on the use of the premises.
Covenants to keep the premises in good repair and condition.
Covenants to comply with the statute.

Secondly, the landlord must serve a statutory notice on the tenant. This notice will detail the breaches of the covenant and give the tenant a reasonable period of time to fix them.

Meredith and Fox said what is reasonable could be influenced by factors such as the scale of the waste crime and the options available for remedying the breach of covenant.

If the tenant does not fix the breaches within the given time, the landowner can proceed to forfeit the lease by taking back control of the premises; for example, changing the locks or starting court proceedings for forfeiture.

The tenant can apply to the court for relief from forfeiture. If the court grants relief, the lease is effectively re-instated and the tenant can return to the premises.

The court will usually grant relief if the tenant remedies the breaches and pays the landowner’s costs, Meredith and Fox said.

Is the legislation fair on landowners?

If a landowner becomes aware a tenant is using their premises to operate an illegal waste site, the steps they need to take to comply with the law are not completely clear.

Karen Bennett knew about her tenant’s offending and took steps to stop them; however, she was still prosecuted.

“Some EA officers I have dealt with in the past have a fundamental lack of knowledge of landlord and tenant law, which admittedly is a complex area of law,” Angus Evers said, “and seem to work on the misconception that it is relatively easy for landowners to control tenants’ activities.”