The Department for Environment, Food & Rural Affairs (Defra) and the Welsh Government have introduced new laws enhancing enforcement authorities’ existing powers to seize vehicles suspected of involvement in fly-tipping and waste crime.

According to Defra, changes in law were needed to crack down on waste crime, as the Environment Agency and Natural Resources Wales were finding that those caught fly-tipping (or those involved in waste crime) often continued their criminal activity even after prosecution, as they still had the means to do so. This was partly due to legislation that stated enforcement bodies could only seize a vehicle to ascertain who was using it at the time of the offence, and required them to return it once a registered keeper was identified.

Details of the new laws

As such, the UK and Welsh governments have now amended the Clean Neighbourhoods and Environment Act 2005 to enable enforcement authorities (such as local authorities, the Environment Agency and Natural Resources Wales) to seize vehicles for a wider range of suspected offences, if they have ‘reasonable grounds’ to believe or suspect that an offence has been committed.

The offences covered include:

• transporting controlled waste without appropriate registration;
• unauthorised or harmful depositing, treatment or disposal, etc. of waste;
• breaches in duty of care, as respects waste; and
• handling or storing waste without an environmental permit.

The two governments have also introduced the Control of Waste (Dealing with Seized Property) (England and Wales) Regulations 2015, laid in Parliament and the National Assembly of Wales on 5 March, which removes the requirement for the enforcement authority to obtain a warrant from a magistrate prior to seizing, if a vehicle is suspected to have been used in the commission of the above offences.

The law also sets out: what a seizure authority must do to ensure the safe custody and determine the rightful owner of any seized vehicle or other property; the circumstances in which the authority must return the property to its owner; and the circumstances in which it can sell, destroy or otherwise dispose of the property.

Procedural structure

The law will come into force on 6 April, and revokes and replaces in England and Wales the existing rules set out in the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991 (S.I. 1991/1624).

It states that enforcement bodies must make steps to identify the registered keeper and issue a notice to them informing them of the reasons for the seizure and the process for making a claim for its return.

The authority must also publish a notice of seizure at its offices and either on its website or in a local newspaper, informing anybody else who might have a claim to the property that it has been seized.

From the date of publication of the seizure notice, a seizure authority can retain the property for a specified period. If there is an investigation of an offence taking place, the retention period depends on which seizure authority confiscated the property and the offence for which it is suspected of involvement.

The general rule is that, while investigating an offence, the authority may retain the property for up to 15 working days before it must release it to a legitimate claimant or it can be disposed of. However, for some offences, the retention period can be extended to 30 working days.

If no valid claim is made during the relevant time period, the authority may, after the period has concluded, retain, sell, destroy or otherwise dispose of the seized property. However, if a valid claim is made during this period, the authority may either arrange for the return the vehicle or retain it until the end of the prescribed retention period (the period in which seized property can be retained).

Further guidance on the new confiscation powers will be available on http://www.gov.uk when the regulations come into force.

Government ‘pleased’ with ‘almost unanimous support’

Those responding to a consultation on the proposals (largely local authorities), which ran between 15 December 2014 and 3 February 2015, welcomed ‘the streamlined ability to seize vehicles implicated in waste offences and fly-tipping and the enhanced retention periods with the disposal procedures’ and stated that the changes will ‘make enforcement both easier and cheaper, [which is] particularly welcome during these difficult financial times’.

Defra and the Welsh Government added that they were ‘pleased’ that the new laws had ‘almost unanimous support’ (98 per cent support) from the 46 respondents to the consultation.

In the government response, the two bodies stated: ‘We are pleased that there was almost unanimous support for the proposals to commence these powers to help enforcement authorities to disrupt and prevent illegal waste activities more effectively than at present, reducing the impact of waste crime on the environment, while helping to bring about a level playing field for the legitimate waste industry and encouraging growth through investment…

‘Taking into account all the responses, we believe that the provision of a 15 day retention period (once a valid claim has been made by the property owner) for local authorities to investigate forfeiture offences strikes the right balance between the operational and financial needs of those authorities, and the rights of those individuals whose vehicles are seized.

‘We consider that a longer retention period should be available to the Environment Agency and Natural Resources Wales when investigating forfeiture offences because they tend to deal with more serious and complex cases of illegal waste dumping (including organised tipping and criminal business practice), compared to local authorities.

‘With this in mind, Defra and the Welsh Government intend to proceed with:

‘a) commencing sections 37 and 46 of the Clean Neighbourhoods and Environment Act 2005 (the 2005 Act) via the Clean Neighbourhoods and Environment Act 2005 (Commencement No. 6 and Saving) (England and Wales) Order 2015; and

‘b) introducing supporting secondary legislation, as permitted by the 2005 Act, entitled the Control of Waste (Dealing with Seized Property) (England and Wales) Regulations 2015.’

Find out more about the Control of Waste (Dealing with Seized Property) (England and Wales) Regulations 2015, or read the government response to the consultation.