There has been an increase in landlords becoming liable for tenants’ waste on their premises.
This has been due to a number of factors; the increase in landfill tax makes fly tipping and illegal waste disposal more financially attractive. In addition, with regulators clamping down on waste crime, landlords may find that they are being put under increasing pressure to remove the waste quickly.
Landlords can face criminal liability if it can be shown that they could have “reasonably expected to notice“ waste accumulation on their land. They could be classed as a “knowing permitter” under the Environmental Protection Act. The courts have held that all that needs to be proved to be a knowing permitter is that the defendant simply knew the waste was being deposited.
Further issues arise in the situation where a tenant goes into liquidation. A typical commercial lease will not provide for automatic termination of the lease, so the liquidator can disclaim the lease as ‘onerous property’ and this leaves the liability with the landowner.
There may be scenarios where a landlord grants a lease to a tenant on the basis that the tenant will obtain an environmental permit or adjust their current permit to a new type of waste, but fails to do so. Here it could fall on the landlord to clear up the waste that was not given correct authorisation.
Further, if an illegal fly-tipper leaves waste on a landowner’s site, and the fly-tipper cannot be identified, the liability will fall with the landowner to clear up the waste. This is of particular concern in cases of hazardous waste as it is expensive to clean up and dispose of.