Defra, DIY and ‘Duty of Care’: Homeowners and the risk in fly-tipping fines

Even the briefest visit to one of the many retail parks across the country will confirm that the UK is home to many individuals who are very keen on improving their homes.

The DIY market, according to one estimate, is worth just over £9 billion a year (https://www.statista.com/topics/6389/diy-and-home-improvement-market-in-the-uk/#topicHeader__wrapper).

Perhaps unsurprisingly, it experienced considerable growth during lockdown when people were confined to home for most of the day.

Even though figures from the Office for National Statistics (ONS) have shown that the return to post-pandemic normality has brought with it a reduction in such activity, DIY remains a popular pastime (https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/conditionsanddiseases/bulletins/howpeoplespenttheirtimeaftercoronavirusrestrictionswerelifteduk/march2022).

Many might feel that the only hazards posed by DIY would be a bruised digit or damaged plasterwork but the latest data from the Department for Environment, Food and Rural Affairs (DEFRA) show that there are far more substantial risks (https://www.gov.uk/government/statistics/fly-tipping-in-england/fly-tipping-statistics-for-england-2021-to-2022).

As I've been telling Emma Gatten, Environment Editor for the Daily Telegraph, they reveal that the number of homeowners handed fixed penalty notices for fly-tipping has more than trebled (https://www.msn.com/en-gb/money/other/fly-tipping-soaring-thanks-to-huge-rise-in-diy-enthusiasts-since-lockdown/ar-AA18wOLq).

A total of 5,875 people were penalised in this way during the last financial year - up from 1,705 in the previous 12 months.

In addition to fixed penalty fines, the number of written warnings given to homeowners by councils was nearly 26 per cent higher in 2022 (rising to 53,942 from 42,953) than the previous year.

I believe that the figures illustrate two things.

First, they demonstrate that local government recognises the need to take action against the blight of fly-tipping.

Last year, English local authorities dealt with a total of 1.09 million fly-tipping incidents.

We have seen regulatory powers strengthened over recent years with a view to tackling all forms of waste crime and the latest plan to introduce mandatory digital waste tracking should go some way to identifying those responsible for illegal dumping (https://www.gov.uk/government/publications/digital-waste-tracking-service/mandatory-digital-waste-tracking).

Debate will continue as to whether reforms have gone far enough and whether enforcement authorities have the resources needed to tackle the problem but the figures do at least show that flytipping isn’t being ignored.

Secondly, though, the numbers can reasonably be interpreted as showing that many householders who rely on contactors to remove waste – such as old bathrooms, redundant kitchen units, white goods, carpets or garden waste - simply don't know they have a responsibility to ensure that the contractors which they use complies with waste management laws.

Yet under the terms of the Environmental Protection Act 1990, householders have a duty of care to avoid inadvertently contributing to fly-tipping.

They must take "reasonable steps" to ensure that anyone disposing of their household waste is properly licensed by the Environment Agency and will handle and dispose of the waste without breaking the law.

That's important because even though incidents involving the dumping of domestic waste actually fell in the last year - down from 740,000 to 671,000 - those which are detected are being dealt with more severely.

At one time, failing to make proper checks on how waste was being disposed would only have been punishable by warning or prosecution. However, four years ago, the power to issue a fixed penalty notice was added to the councils’ armoury – and most have been eager to use it.

Making the necessary checks might not seem a priority when your home is upside down with renovation work but, given the vigour with which fly-tipping is now pursued and the fact that penalty notices carry a maximum sanction of £400 (or the potential for an unlimited fine as a result of prosecution), it makes sense to check.

I have acted for a number of individuals inadvertently caught out in such circumstances.

In one case, a woman was given fake registration details by a contractor who she had paid to remove kitchen cupboards and who then dumped them illegally. Even though the labourer couldn't be traced, she was threatened with prosecution after her personal information was found in one of the kitchen drawers which had been fly-tipped.

In another instance, a householder was identified from personal information in bins bags of waste dumped after a house clearance.

The difficulty for the householder is that, all too often, they can be easily located long after the flytipper has disappeared.

It can come as a nasty shock when the home renovations are complete to discover that your bank account is about to take an extra hammering because legal obligations haven’t been fulfilled. The thousands of fines handed out in the last 12 months alone show that sanctions are not merely theoretical.