Waste handling duty of care
A loophole which allowed businesses to put out rubbish for collection too early, and therefore increase the risk of it being scattered around the streets, has been closed.A case in the High Court has clarified the main principles of the duty of care imposed on those producing and handling waste by s34(1) of the Environmental Protection Act 1990. The case effectively closes a loophole that was created in another High Court case in 2004.
Section 33 of the Environmental Protection Act contains the main offence of depositing waste without or breach of the conditions of a licence. Section 34 imposes a duty of care on producers, carriers and other persons keeping or treating waste to take all reasonable measures "to prevent the escape of the waste from his control and that of any other person".
The case two years ago concerned a company which had deliberately deposited bags full of office waste on neighbouring land. The company was charged with breaching the duty of care under s34(1) but managed to successfully argue that 'escape' of waste could not encompass the deliberate disposal of waste as deliberate disposal was linguistically outwith the scope of the meaning of 'escape'.
The case London Borough of Camden v Mortgage Times Group  EWHC (admin) 1615 relates to the fact that the cleaning contractors of the company had on three occasions put plastic bags containing shredded paper on the public highway for collection at around 7.00am. The Council had made clear that the waste collection was at 10.30am and that waste was not to be put on the road before 9.00am.
Lantham LJ stated that the offence under s34 involved the failure to take the necessary steps to prevent the escape of waste, but that actual escape of the waste was not a necessary pre-requisite for liability under the provision. Rather, "by depositing the waste on the highway a significant period of time before collection was due to take place, it had materially increased the risk of an escape of that waste, and had accordingly failed to take reasonable measures to prevent that escape".
The Court also pointed to the fact that the statutory code of practice on the meaning of the duty of care advised that waste should be put out as close as possible to the advertised collection time.
This approach indicates that the duty of care under s34 is essentially one centred around preventing the risk of waste leaving the legitimate disposal stream from arising.