Clause 43 - Clean-up costs

Clean Neighbourhoods and Environment Bill – in a Public Bill Committee at 10:15 am on 25th January 2005.

Alert me about debates like this

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs 10:15 am, 25th January 2005

I beg to move amendment No. 94, in clause 43, page 37, line 35, at end insert 'and its legal disposal'.

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire

With this it will be convenient to discuss amendment No. 115, in clause 43, page 38, line 20, at end insert—

'(4) The Secretary of State shall make regulations such that where an offence has been committed under section 33 of that Act and no order is made to provide compensation for clean up costs incurred following that offence, the landowner shall not be liable for the clean up costs provided that he took reasonable steps to prevent the offence.'.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

You were not able to be with us during our previous sitting, Mr. Taylor, when I had to wind up rather hurriedly to allow members of the Committee to go home on Thursday evening.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

I am all heart. Amendment No. 94 is intended to ensure that we drive home the point that clean-up includes legal disposal of waste. It may be a pedantic point, but the Bill is partly about refocusing on waste and the need to do the right thing.

The problems relating to clean-up costs come back to the lack of convictions for fly-tipping, and we are worried about who is paying for the cost of clean-up. On Thursday, we started to talk about the lack of funding for the Environment Agency, which is an important point. In some of the information provided by the agency in preparation for this Committee, it highlighted some of the issues. Tackling waste crime in England and Wales costs landowners, local authorities   and the Environment Agency £100 million to £150 million each year. The Environment Agency spends about £7 million on waste-related crime. Then we get to the interesting statistic showing that it dealt with about 5,400 waste-crime incidents in 2003, which resulted in more than 50 prosecutions. It is almost trying to say that 51 is better than none. Quite frankly more than 50 prosecutions out of 5,400 waste-crime incidents does not identify a lot of polluters who should pay for the cost of clean-up. The whole principle is that one finds the person who did it so that he cleans it up.

Instead, we have the problem that I outlined on Second Reading. Farmers and others who have waste dumped on their land will be left without a remedy. That is assuming that they report it. As I mentioned earlier, they do not always report it because they get stuck with the cost of clean-up. The Environmental Audit Committee's report found that —it has also been pointed out to me locally—some of the people at the Environment Agency who are responsible for detection, conviction and prevention are not necessarily of the highest calibre. Sadly, we are even less likely to get a conviction.

The clause says that the cost of removing the waste and cleaning up the land is recovered from the offender. If the Environment Agency is not getting convictions, how will we get the clean-up costs? The Government need to explain where the money will come from for clean-up costs. Why will nothing be done for farmers who may have been innocent and who may have done all that they can to prevent someone from backing into their fields and tipping two lorry loads of asbestos or 20 lorry loads of building waste? Farmers can shore up their defences, but if someone comes at night with a dirty great lorry or a dumper and decides to reverse in, knock the gate down and go to the other side of the field, there is a major problem. What will the Government do to ensure that the innocent are not saddled with the costs? Although the clause looks good on paper, in principle it means virtually nothing if we are not going to get the worst people convicted.

Under section 33 of the Environmental Protection Act 1990, landowners and occupiers who neither caused nor knowingly permitted the incident to take place can appeal against notices served by the authorities for removal of fly-tipped waste or cost recovery. That means that the farmer has to appeal against what he should have done earlier, which was to clean up the site. He will not sit there with all that stuff when the Environment Agency is on his back to do a clean-up. In practice, as I mentioned on Second Reading and as was mentioned in the debate on the Environmental Audit Committee's report, farmers do not report incidents of fly-tipping. I see nothing in the clause that suggests that they would do so, even given the much higher fines. The clause gives them no justice. They will be landed with the problem and nothing in the clause will get a conviction and make the polluter pay. 

Photo of David Ruffley David Ruffley Opposition Whip (Commons)

I have some sympathy with the hon. Lady's amendment and I know that my hon. Friend the Member for Ribble Valley shares my warm feelings towards it. A number of concerns about clean-up costs have been made widely known by the National Farmers Union. For a while, it has been concerned to see provisions aimed at addressing cost recovery, but it also has concerns about the operation of the new regime. That is why the amendment may be needed.

In particular, the NFU has been concerned to point out that the identification of the true culprit behind any illegal tipping offence can be difficult. The landowner or occupier is not always the offender, but can be the easiest person for the agency or relevant officer to approach. That is in the nature of things; the landowner or occupier is a fixed person who is easy to identify, whereas more transient beings are less easy to identify.

The experience of the NFU is that many of its members have been penalised as the guilty party under section 33 of the 1990 Act. Although landowners and occupiers can appeal against notices served by authorities for the removal of fly-tipped waste, the NFU believes that they should not have to pay for the costs of enforcement, recovery and clean-up until the final outcome of any appeal is known. Could the Minister clarify the matter of the incurring of costs while an appeal is still pending in the case of a landowner or occupier who has been found guilty of fly-tipping and is subject to a costs order for enforcement and clean-up, but who wishes to appeal because they say that they are not the culprit? It would be useful to understand that matter a bit better, because it is one of the NFU's concerns.

Although we welcome attempts to recover costs from those convicted of a fly-tipping offence, it would be useful to hear the Minister's views on how many farmers and landowners are still likely to have notices served on them in cases in which they plead their innocence. Has the Minister any figures on the number of cases of farmers who are charged with illegal fly-tipping, is that number increasing or decreasing, and what is the quantum? Are there a few dozen, a few hundred or thousands of cases a year?

I close my remarks by saying that that fine organisation, the Country Land and Business Association, which is particularly effective in Suffolk, echoes the concerns of the NFU. It questions the wisdom of any extension of liability to owners who may have no control over the land in question. It feels that, at the very least, there should be a requirement for prescribed steps to have been taken by the authorities to identify a fly-tipper before the owner or occupier of the land is served with a notice. Has the Minister received representations from the CLBA to that effect?

With those points, I shall resume my seat. I give qualified support to the amendment tabled by the Liberal Democrats.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I wish to speak to clause 43 and amendment No. 115, which I am also minded to support. We said earlier in our discussions that we want the polluter to pay, and I hope that the clause   deals with exactly that issue. Clearly, the problem is catching people tipping waste. If they can be caught, they can be brought before the courts, where they will face a fine. On top of that, they will have to pick up the costs of disposing of the waste, which could run into many thousands of pounds. We are talking about separating the fine for doing something wrong from the clean-up costs, which the culprit should have paid in the first place. That would ensure that they do not get away with it.

As I am sure the Minister would concede, if we did not include a provision on clean-up costs, in cases in which magistrates had been a bit lenient the fine would be lower than the costs of disposing of the waste. In such a case, the person would clearly have got away with it. We do not want to make it cheaper for people to tip waste illegally. We do not want them to think that they can go through all the judicial processes and end up with a fine that is lower than the clean-up costs of the waste.

Having spoken in support of clause 43, I move to amendment No. 115, which deals with those who have not been convicted—those who are not responsible for the waste on their land. I hope that the Minister will at least say that the clause deals only with those who have been convicted and not with victims, because that is what they are. Farming is under a lot of pressure these days in any event and, by definition, people in that industry have a lot of land. Let us be realistic about farming in today's world. To make a go of it, farmers need more and more land. Farms have been bought up and merged—

Photo of David Taylor David Taylor Labour/Co-operative, North West Leicestershire 10:30 am, 25th January 2005

Order. Will the hon. Gentleman return to the amendment and the clause that we are discussing?

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I am more than happy to do so, Mr. Taylor. Farmers who have had waste tipped on their land are victims. The amendment says that when someone has made reasonable efforts to ensure that no waste is tipped on their land, they should not be liable for any clean-up costs. That is why the amendment is important.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

The hon. Gentleman is making some very good points. It is not only farmers who are affected by that practice, but other landholders, such as the Woodland Trust and the National Trust. They are equally affected.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

Absolutely. I agree that farmers are not the only ones affected, but I hope that the hon. Lady will excuse my using farming as a reference point for us. I heard what was said from the other side of the Committee about urban tipping. Clearly, some people who do not live in rural areas but own a bit of waste land and keep it in good order could come back to their works to find that someone has tipped waste on their land and that they could be liable for its removal. That could affect a number of organisations, as the hon. Lady rightly says, which is why her amendment is designed to give them some protection.

As I said earlier, the Minister has enough common sense and is realistic enough to know that those things happen. We hope that there will be a deterrent under clause 41, and that clause 43 will let people know that if they are convicted they will not get away with it but will have to pay the disposal costs, too. That is absolutely right.

Furthermore, the mess made by anyone who is convicted should be cleaned up pronto, because as the Minister for Rural Affairs and Local Environmental Quality knows, as he took the right-to-roam legislation through the House, more people have more access to more land than ever before. If the waste is allowed to remain, it will become a danger to youngsters and people walking in the countryside, and a magnet for rodents. Fridges, for example, may seem attractive to youngsters to play in, but that can end in tragedy.

Waste should be removed as quickly as possible but if it proves difficult to identify who tipped the waste, the amendment would help to ensure that an innocent party such as a farmer or a landowner does not have to pick up the extra costs when they have taken reasonable steps to ensure that their land has been protected. I hope that local authorities and the Environment Agency will encourage farmers and landowners to report incidents of waste being dumped on their land. As the Minister for Rural Affairs and Local Environmental Quality said, we need that data so that we know how big the problem is, but people who report such incidents must know that they will not have to face a huge bill for clearing up the mess.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

Again, I do not disagree with much of what has been said, but I shall explain why the amendments are unnecessary.

The hon. Member for Guildford mentioned the Environment Agency's budget, but I do not know where her figure of £7 million came from. The Environment Agency spends about £12 million on waste-related activities, and its waste management budget is £82 million, an increase from £73 million in 2000. It is about 10 per cent. of its total budget and is fairly consistent. 

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

The figure of £7 million spent each year on waste-related crime comes from information provided by the Environment Agency ahead of the Bill.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

My figure of £12 million comes from the Environment Agency, so on that basis we will have to call it a draw. There is a resources issue, but I would not want the hon. Lady to think that the agency does not have considerable resources available; that is not to be complacent about its budget and the demands on it.

The amendments would apply when a person is convicted of illegal waste disposal. The clause will allow the courts to make an order requiring the offender to pay the costs incurred by the Environment Agency or a local authority or the occupier or owner of the land in respect of removing the waste deposited or disposed of, taking other steps to eliminate or reduce the consequences of the deposit or disposal; or both. I understand the reason for amendment No. 94, which would add ''and its legal disposal'' at the end of paragraph (a): the hon. Lady wants to be assured that steps will be taken to remove the waste and deal with it properly, which is perfectly reasonable.

Amendment No. 115 would add a new subsection providing for those cases in which no such order is made. It would require the Secretary of State to make regulations which provide that the landowner shall not be liable for clean-up costs, provided that he had taken reasonable steps to prevent the offence.

The amendments are unnecessary because the costs incurred in removing the illegally dumped waste by implication will include the costs incurred in legally disposing of it elsewhere. That must be a prerequisite in the proposal. Local authorities sometimes fall out with each other, but if one local authority cleaned up the waste and then drove down the lane and chucked it in a hedge in another local authority, it would undermine the principle involved. I do not think such activity would occur.

There is also no need to make regulations absolving a landowner of liability for clear-up costs, as nothing in the current legislation or the Bill would make him liable—there is no such provision now, and that is not changing. The only provision that will apply to landowners as a result of clause 50 is section 59 of the Environmental Protection Act 1990, which gives the Environment Agency and waste collection authorities powers to serve clear-up notices on an occupier of land, as has been said. However, notices would be served only if the landowner was felt to be liable in some way for the fly-tipping. The occupier would be able to appeal, and the notice would be quashed if the occupier had neither deposited nor knowingly caused or permitted the depositing of the waste. Should clause 50 stand, the same provision will be extended so as to apply, in the absence of an occupier, to landowners.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I want to get this absolutely right, because the last thing we want is to say that this will all be tested in court. That, too, would be a huge cost for farmers, and they do not want to go down that route. Will the Minister give a categorical assurance that if   the farmer is not responsible for the waste that has been dumped on his land, no clean-up costs will be imposed on him under the Bill?

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

Oh no, I cannot do that. I have a lot of sympathy with innocent farmers in this respect, and I have such cases in my constituency. However, there are also cases, as I shall explain in a moment, that show why it is difficult to give all landowners a complete indemnity in relation to cleaning up fly-tipped waste.

If fly-tipping occurs on someone's land—as has been said, it is not only farmers but a range of landowners who suffer this problem—the important thing is, first of all, to try to track down those who did it. If we can do that, they can, under the Bill, be made to meet the costs of cleaning up the waste, as well as facing the relevant penalties for having dumped it. If the landowner is held responsible, orders can be put on them, regardless of whether they are in an urban or rural area. I say that because some people who own property in urban areas allow their back yards to be used as dumping grounds, and that is a bit of a problem in parts of my constituency. Such landowners can be made to clean up the waste, because their property is not secured and it is their responsibility. However, if it is clear that the owner or occupier is not responsible, they will not be forced to meet the clean-up costs.

The position in the Bill is the same as it is now. If waste is dumped on private land, it is the landowner's responsibility to remove it. In some cases, the local authority will take it away, but that is a decision for the authority, not a statutory requirement. Authorities sometimes do that as part of good management, and I very much welcome that, but in the end, responsibility falls to the landowner, and I have a great deal of sympathy with them in that regard.

The problem is how we deal with the issue in legislation. Sadly, some landowners do not take steps to prevent waste from being dumped. I know from my own constituency cases of a landowner who allowed construction waste to be illegally dumped on his land without planning permission, and action was taken against him under the planning laws. He had a bit of land and allowed people to dump waste on it. He took money for that, but he did not secure the land, so people were not only paying him to dump waste, but coming at night and dumping more. It would be quite wrong to pay for us to meet such clean-up costs.

In another case, a farmer had a lot of waste stored illegally on his land. The Environment Agency told him to remove it properly and legally. The next time the agency came to inspect, the waste was indeed gone, but there was a very suspicious mound in the middle of his field. On further investigation, they found that he had just buried the waste in his field, including fridges. He was fined £20,000, which is a much more effective fine.

That farmer was also the Conservative leader of the local council, as it happens, and is currently serving three months suspension by the Standards Board. It   shows that all sorts of different circumstances arise. It is very difficult to deal with that, and the Bill is trying to get that balance right.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs 10:45 am, 25th January 2005

A landowner may get planning permission for something that involves landscaping, such as a golf course, but may have no intention of constructing that a golf course. He may allow unlicensed tipping of, perhaps, construction waste, under the guise of landscaping. Does the Minister have a view about those particular circumstances?

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

There is an issue of clean-up costs. That is a very difficult one, and yet another example of potential abuse that needs to be taken into account.

We have powers in the clause to enforce clean-up costs for those who are responsible, for those who have not secured their land, for those who have acted irresponsibly and for those who have acted illegally. I repeat that I have a great deal of sympathy with innocent victims, and in these crimes the vast majority of landowners are victims. The best way that we can help them is to have effective measures to deter such behaviour, to track the polluter down, and to prosecute and make them pay. That is how we have to deal with the problem. Hon. Members are worried that unreasonable costs will be imposed on landowners. If they are not responsible, costs will not be imposed. The way they deal with the problem will be a matter for them, and in some cases local authorities will assist them.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

The Minister said that farmers who cause the waste themselves will quite rightly pay. I know of a farmer who had a dispute with a local authority and left rusting farm implements in a very visible area of his farm. He should quite clearly pay for the removal of that waste. Where a farmer also takes money, it is again quite right, because he has turned his farm into a tip and clearly that should not be allowed either.

In this amendment, we are fighting for the innocent farmers. The assurance we want from the Minister is that, under clause 43 on clean-up costs, if the farmer is an innocent victim he will not pay the clean-up costs.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I really cannot give that assurance because, in the end, someone has to meet that cost. The problem is that, if the cost fell on the local authority, then there is little incentive for those who are unscrupulous to secure their land, or to take steps to minimise waste. So it is a very difficult issue to deal with, even though I agree with the hon. Gentleman that the vast majority of people are innocent victims. We must ensure that we take steps to stop this practice. I welcome the fact that, in many cases, local authorities work with landowners in dealing with waste.

Photo of Patrick Hall Patrick Hall Labour, Bedford

I understand the point that the Minister is making. Might he consider issuing guidance, so that some account is taken of the circumstances in difficult cases when a farmer is entirely innocent?  

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

It would not help in the end, because the issue is the removal of the rubbish. Responsibility lies with the people who put it there. We all know, however, that those people cannot always be tracked down. In those circumstances, it is the responsibility of the landowner. However, if they are not involved, the powers and orders that can be applied to force them to take steps—which can involve considerable cost—would not be applied. If they felt they were being unreasonably applied, there is the option to appeal against that.

I very much hope that I have answered all the points raised, and that the Committee can support the clause.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

I would like to deal with these two amendments separately. We take on board the Minister's comments on amendment 94, that it is an intrinsic part of the regulations that legal disposal is part of the cost of removing waste. We will seek to withdraw amendment No 94, but I will move amendment No. 115 formally and press it to a vote.

One of my first questions to the Minister was about how we will get convictions in order to pay the clean-up costs. At present, we have a victim but no one pays the costs. The Minister was unable to say that if a farmer had taken reasonable steps to prevent the offence he would not be liable for the costs. He talked about tracking down the person who did it. We know already that the Environment Agency is not tracking such people down. West Surrey farmers made it clear that two things happen if they report incidents to the Environment Agency in the hope that it will try to convict the perpetrator. First, it gives up very early on in the chase, and secondly it tells the farmers to clean up, so they bear the costs. That is unjust. There is no natural justice in this whole approach. It is making the farmers the victims, and it is legitimising a practice that is already taking place.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

Does the hon. Lady agree that when Ministers say that they have to incentivise farmers to make their land secure, which is covered in her amendment, they must also incentivise the Environment Agency and the other authorities to ensure that they are encouraged to track down the people who are tipping waste? If they always believe that the landowner will ultimately pay the costs of clean-up there is no incentive for them to catch these tippers.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

I thank the hon. Gentleman for that helpful intervention. That is so. When I attended a parish council meeting last week about fly tipping on Stringers common in Worplesdon, it was clear that it had given up on the Environment Agency. The agency should have installed cameras to track down those responsible for what was happening, but it was left to the local bobby and the parish council to do all that they could to identify who was doing the fly tipping. That is not adequate.

We have tried to get more funding into the Environment Agency as it will deal a lot more with clean-up. Although we may dispute whether it is £12 million or £7 million—it is an honest difference of opinion—the structure is not there to get a conviction.   We cannot deal with clean-up costs in that way. The Minister has failed to get farmers, who are genuinely innocent victims, off the hook.

Photo of Elliot Morley Elliot Morley Minister of State (Environment and Agri-Environment), Department for Environment, Food and Rural Affairs

I shall make two points. I repeat that I have every sympathy with the vast majority of farmers and landowners who are perfectly law abiding and respectable. However, if the full costs of the clean-up fell on local authorities and local council tax payers, which is where it would go, what would prevent unscrupulous minorities in every walk of life from putting rubbish on their own land and expecting council tax payers to pay for its removal? In fact, there is even a possibility of making money out of such criminal activity.

Secondly, the hon. Lady referred to the funds available to the Environment Agency. The additional cost implications of this problem are enormous. I do not know whether this is another issue to go on the Liberal Democrat shopping list, but there are costs that she must take into account if she wants to be responsible.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

On the first point, if something is fly-tipped on to the local authority's land—on a verge, for example—the public purse already picks up the costs. This is inconsistent.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

The case of the landowner who has clearly not secured his land and ends up with waste tipped on it is dealt with in the amendment. He would pay the clean-up costs. However, where it could be clearly shown that he had taken due regard to protecting the property from fly-tippers, he could not be held to blame.

Photo of Ms Sue Doughty Ms Sue Doughty Shadow Minister (the Environment), Environment, Food & Rural Affairs

That is a powerful point. Many farmers have already secured much of their land. They have problems with illegal incursions by travellers, and in many cases protection is in place. A specific group is involved. We invited the Government to allow the Environment Agency to retain fixed penalty notice fines, and they were not having any of that. We identified a source of some if not all of the costs; but no, that could not be used. We found a way of funding or part-funding the proposal, but the Government said no. We are still deeply dissatisfied with the Government response, and we shall press amendment No. 115.

I beg to ask leave to withdraw amendment No. 94.

Amendment, by leave, withdrawn.

Amendment proposed: No. 115, in clause 43, page 38, line 20, at end insert—

'(4) The Secretary of State shall make regulations such that where an offence has been committed under section 33 of that Act and no order is made to provide compensation for clean up costs incurred following that offence, the landowner shall not be liable for the clean up costs provided that he took reasonable steps to prevent the offence.'.—[Sue Doughty.]

Question put, That the amendment be made:—

The Committee divided: Ayes 4, Noes 9.

Division number 0 Nimrod Review — Statement — Clause 43 - Clean-up costs

Aye: 4 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill.

Question agreed to.

Clause 43 ordered to stand part of the Bill.