10 February 2011
This section deals with offences relating to unauthorised or harmful deposit, treatment or disposal etc of waste – as provided for under Article 4 of the 1997 Order. It enables the Department or relevant district council to issue a notice to a perceived offender, offering him the opportunity to pay a fixed penalty as an alternative to court action.
The powers are intended to be used for less serious waste offences. However they are discretionary; the Department or district councils can choose instead to prosecute any offences under Article 4 through the courts.
District councils will be able to use any funds raised through these fixed penalties to cover the costs of enforcement and clean up of illegally deposited waste.
Articles 5E and 42 of the 1997 Order give Departmental enforcement officers the powers in certain circumstances to seize vehicles and other property suspected of being used in illegal waste activity. Articles 5F and 42A specify that subordinate legislation is necessary to give effect to these powers and that the required regulations must set out how the Department will deal with seized property.
This section allows the Department to include in the regulations powers to retain property for a certain period after seizure. The Department must apply to a magistrates’ court if it wishes to keep the property for longer than this prescribed period. However any person claiming entitlement to the seized property must be given an opportunity to be heard by the court, before it makes a decision on the Department’s application.
Article 15 of the 1997 Order makes provision for the Department to charge for its range of waste management licensing activities. This section creates new offences of:
a failure to pay subsistence fees; and
continued non payment after a conviction for the offence described in (i) above.
Articles 28 and 28A of the 1997 Order give district councils powers to deal with waste unlawfully deposited in their areas. They enable councils to serve a notice on the occupier or in certain specified circumstances, the owner of land requiring him to remove illegal waste or take remedial action.
This section extends to the Department the power to issue such notices. It also enables a notice under Article 28 to be served on the person believed to have illegally deposited the waste on the land. This person has the same rights of appeal as those currently provided to owners and occupiers and the existing penalties apply in the event of failure to comply with such a notice.
This section gives councils the same enforcement powers as the Department in relation to breaches of Article 4 (prohibition on unauthorised or harmful deposit, treatment or disposal, etc., of waste) and Article 5 (Duty of care, etc., as respects waste) of the 1997 Order.
This section removes the requirement, as set out in Article 72 of the 1997 Order, for enforcement officers investigating illegal waste offences to give 24 hours notice before they can enter residential premises or bring heavy machinery onto premises.
Enforcement officers must continue to obtain a court warrant by virtue of Schedule 4 of the 1997 Order, or alternatively must have permission from a person occupying the premises.