11 December 2013

Businesses cannot avoid liability by passing entire responsibility for waste management to third party contactors

A business failed in its argument that it discharged its duties under waste management laws by passing responsibility for waste disposal to a reputable third party contactor.

A business commissioned a developer to renovate a property. The work included the removal and disposal of waste from the site. The developer sub-contracted the removal and disposal of waste to a third party waste contractor who illegally dumped the waste.

The business was charged with breaches of the duty to transfer waste only to persons authorised to deal with it under waste laws, or to persons authorised for transport purposes. The business denied liability and argued that it had used the same developer before without any problems, and it was not reasonably foreseeable that the developer would sub-contract the work to an unauthorised contractor who would fly tip.

Further, it argued there was an implied term in the contract that the developer would dispose of the waste lawfully, and that nothing the business could have put in a contract or other document that would have prevented this particular illegal fly tipping.

The High Court ruled that the business was in breach of the law because of its failure to exercise control over what was happening to waste on its premises, not because of any failure to choose the right developer or to anticipate the developer would sub-contract to an illegal dumper. What was relevant was that there was no clear audit trail and no procedures for managing contractors in relation to waste management, and no mechanisms to ensure contractors complied with the relevant law.

"What is important … was … that there would be transfers of controlled waste from the premises yet [the business] had chosen to distance itself from the site and not to preserve a permanent presence on the site and not to play any direct role in the transfer of the waste".

Recommendation

Businesses contracting with developers or other contractors to dispose of waste from their premises should:

  • note that they cannot simply pass responsibility for waste management to a third party contractor and argue their duty is limited to picking a reputable contractor;
  • ensure they preserve a permanent presence on the site and play a direct role in the transfer of any waste, or risk liability for illegal dumping under waste laws;
  • be able to demonstrate clear procedures for managing contractors in relation to waste management and a clear audit trail.

For more information please contact Lyn Dario at Shulmans on 0113 297 3779 or at ldario@shulmans.co.uk.

Case ref:

Mountpace Ltd. v. The London Borough of Haringey [2012] EWHC 698