Fly Tipping Accident & Reclaimed - What Are My Rights?

HillStreetBlues

Alderbank said:

Here is one from the Daily Mail about an OAP who was smoking a cigarette while waiting at a bus stop. A bit of ash (not the cigarette butt) fell off the end and presumably landed on the pavement. An Environmental Enforcement officer appeared and issued her with a Fixed Penalty Notice.
She initially refused to pay. The DM reporter noted that the Council said they would take her to court unless she 'coughed up.'
https://www.dailymail.co.uk/news/article-1303477/Smoker-faces-2-500-fine-dropping-cigarette-ash-pavement.html

Just in case anyone one was wondering, they dropped it ( the case, not ash  )
https://www.birminghammail.co.uk/news/local-news/sandwell-council-drops-threat-to-prosecute-249649

Alderbank

tightauldgit said:

pinkshoes said:

From the House of Commons library, Fly tipping is defined as:
"Fly-tipping is the illegal disposal of household, industrial, commercial or other ‘controlled’ waste. The waste can be liquid or solid; controlled waste includes garden refuse and larger domestic items such as fridges and mattresses."

The OP did not deliberately "dispose" of anything (it was accidentally left behind), nor was the stuff left behind "waste" as it was quite clearly property belonging to a business. The OP can prove this given they collected it immediately and is using the objects for their business.

Fair enough if you want to pay it for a quiet life, but I would absolutely dispute this.

At the very least you can make your £400 with a newspaper sob story, as quite frankly the council are only chasing after your wife as it's an easy target. 

On the other hand, the definition says nothing of deliberate, it was taken out of the car and left behind which would certainly constitute disposal if you just left it there and once you've disposed of something it's probably waste by definition. 

Certainly if it was a penalty charge i'd be disputing it but when the only route to dispute it is to go to court on a criminal charge then I can certainly see the appeal of just settling it. 

The primary legislation doesn't say disposes. It says deposits (OK, a similar word but not the same).
Collins dictionary offers: To deposit someone or something somewhere means to put them or leave them there.

Environmental Protection Act 1990

Section 87 Offence of leaving litter.

A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.

the_lunatic_is_in_my_head

Alderbank said:

tightauldgit said:

pinkshoes said:

From the House of Commons library, Fly tipping is defined as:
"Fly-tipping is the illegal disposal of household, industrial, commercial or other ‘controlled’ waste. The waste can be liquid or solid; controlled waste includes garden refuse and larger domestic items such as fridges and mattresses."

The OP did not deliberately "dispose" of anything (it was accidentally left behind), nor was the stuff left behind "waste" as it was quite clearly property belonging to a business. The OP can prove this given they collected it immediately and is using the objects for their business.

Fair enough if you want to pay it for a quiet life, but I would absolutely dispute this.

At the very least you can make your £400 with a newspaper sob story, as quite frankly the council are only chasing after your wife as it's an easy target. 

On the other hand, the definition says nothing of deliberate, it was taken out of the car and left behind which would certainly constitute disposal if you just left it there and once you've disposed of something it's probably waste by definition. 

Certainly if it was a penalty charge i'd be disputing it but when the only route to dispute it is to go to court on a criminal charge then I can certainly see the appeal of just settling it. 

The primary legislation doesn't say disposes. It says deposits (OK, a similar word but not the same).
Collins dictionary offers: To deposit someone or something somewhere means to put them or leave them there.

Environmental Protection Act 1990

Section 87 Offence of leaving litter.

A person is guilty of an offence if he throws down, drops or otherwise deposits any litter in any place to which this section applies and leaves it.

That's correct but the legislation quoted is for littering which is different to fly tipping  

https://www.legislation.gov.uk/ukpga/1990/43/section/33

(1)Subject to [F1subsections (1A), (1B), (2) and (3) below] and, in relation to Scotland, to section 54 below, a person shall not—

(a)deposit controlled waste [F2or extractive waste], or knowingly cause or knowingly permit controlled waste [F2or extractive waste] to be deposited in or on any land unless [F3an environmental permit] authorising the deposit is in force and the deposit is in accordance with the licence;

Only possible defence may be it wasn't waste. 

Government guidance says enforcement should be proportionate which would be considered on a case by case basis but ultimately if the council disagree your with position you'd be looking at arguing your case in court. 

I wonder if the OP's council give a discount for early payment. 

HillStreetBlues

You might want to check current fines that a judge would impose, as the average was below the £400 fixed penalty. So an accidental one I think I read they were about £50 to £100

tightauldgit

HillStreetBlues said:

You might want to check current fines that a judge would impose, as the average was below the £400 fixed penalty. So an accidental one I think I read they were about £50 to £100

But you would have been found guilty of a criminal offence in court and have a record kept of that whereas a FPN goes away when paid. I'm not sure how important having a littering record would be but it might matter. 

the_lunatic_is_in_my_head

Plus the prospect of paying costs and a victim surcharge. 

HillStreetBlues

That's true, but normally low level. Also the wife has only a little income of her own this will be considered.

Okell

It's a pity the OP never explained exactly what paperwork they had received (or exactly what they'd been told by the enforcement officer) and neither did they explain exactly what offence was alleged.  I did ask twice...

HillStreetBlues

tightauldgit said:

HillStreetBlues said:

You might want to check current fines that a judge would impose, as the average was below the £400 fixed penalty. So an accidental one I think I read they were about £50 to £100

But you would have been found guilty of a criminal offence in court and have a record kept of that whereas a FPN goes away when paid. I'm not sure how important having a littering record would be but it might matter. 

I agree. Everything needs to be weighed up when making a decision.

Ditzy_Mitzy

HillStreetBlues said:

You might want to check current fines that a judge would impose, as the average was below the £400 fixed penalty. So an accidental one I think I read they were about £50 to £100

In this case, the situation at court - hypothetically speaking - will be complicated by the issuance of the FPN.  In the case of a guilty verdict, the court will impose a fine equal to or greater than the amount demanded by the penalty notice.  They have to do it that way round.  

The best one can hope for is a not-guilty verdict, although that would be contingent on whether strict liability is applied.  If it were, an absurd situation would result whereby it would become illegal to mistakenly leave any possessions in any place - but there probably needs to be a test case.