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TIPPING THE SCALES: LEGAL INJUNCTIONS TO STOP FLY-TIPPING

Fly-tipping on farm land has been on the increase in recent years.  It’s not just an irritating nuisance; fly-tipping can be very costly to deal with; it can pose a threat to humans, livestock and the environment; it can damage land and crops; and it can cause a blight on the locality.  The National Fly-Tipping Prevention Group estimates that fly-tipping costs around £86m-£186 million every year to investigate and clear up, with the cost falling on tax-payers and private landowners. 

Although guidance is available to help farmers deter fly-tippers, some farmers nonetheless suffer repeated incidents, often on an industrial-waste scale. In such cases, there is another option available to the farmer: an injunction.

What is an injunction?

It’s an order made by the Court which is addressed to a person or a group of people ordering them to do something, or to stop doing something (e.g. to stop depositing waste on a specified area of land).

Who can get an injunction?

The occupier of the land – an owner occupier or a tenant.  It might be possible for a licensee to apply for an injunction, but that would be trickier. 

What about if you can’t identify the fly-tippers?

It’s entirely possible to get injunctions against “persons unknown”.  The injunction would need to be worded carefully to ensure that the “persons unknown” are a defined and limited group of people – the injunction must apply only to people who fly-tip on the land; it cannot apply to everyone in the world indiscriminately.

What land can be protected?

All land occupied by the person applying for the injunction.

What about fly-tipping on the public highway?

Where fly-tipping takes place on the public highway and it obstructs access to your land, you could apply for an injunction to stop the fly-tipping on that public highway because it amounts to a public nuisance.

Will an injunction stop the fly-tipping?

That’s the aim and purpose of the injunction.  Of course, the ultimate way to stop fly-tipping is to build an insurmountable physical barrier around your land, but that’s unlikely to be a practical option.  You will want to try other deterrents first of course – an injunction should be a last resort rather than the first tool out of the box.  But if, despite your best efforts, you have a continuing fly-tipping problem, an injunction is worth considering.

An injunction creates serious legal consequences: breach of an injunction is contempt of Court, punishable through the civil courts.  A person found to be in contempt of Court can be committed to prison or fined.  If you bring committal proceedings in the High Court, the fines are unlimited and the person can be committed to prison for up to 2 years.

What’s the process for getting an injunction?

You launch a legal claim and apply for an interim injunction at the same time.  You will need to show that you have a legal cause of action (in this case in trespass) and that it has a reasonable prospect of succeeding.  You will also need to show that being paid compensation would not resolve the issue – you need an injunction to stop this from happening, not money.  In practice this means you’re going to need to show that you’ve suffered with serious fly-tipping incidents which have caused significant issues for your business and, despite your best efforts, the problems have continued.

If you can’t identify the fly-tippers and you need your injunction to apply to “persons unknown”, you will also need to show that there is a real and imminent risk of further fly-tipping by people you can’t identify, and your application and draft order will need to be tightly worded to meet the legal requirements for such injunctions.

A recent legal case has made it much harder to get final injunctions against people you can’t identify, so your underlying claim, and your proposals to the Court about how that claim proceeds, need to be put together very carefully.

How long will my injunction last?

That will be a matter for the Court, and it will largely depend upon whether you can identify the people who are fly-tipping (when you will want a short-term interim injunction, with a speedy final hearing to get a longer-lasting final injunction).

If it’s not possible to identify the fly-tippers, you will need to persuade the Court to grant you an interim injunction for as long as possible; that may be 6 months; it may be 12 months; or it may be such other period as the Court believes is just and reasonable in the circumstances.

If I get my injunction, how do I enforce it?

Firstly you want to make sure that as many people know about it as possible, because you want to bring it to the attention of the people who have been fly-tipping.  Certainly, you will want copies and warnings posted on the land affected, but you might also consider flagging the injunction on local community internet pages and village hall noticeboards (etc.), and notifying local waste disposal sites.

You should also consider whether you need CCTV or ANPR cameras, or movement-triggered covert cameras, at or near sites where fly-tipping has occurred in the past.  These cameras have come down in cost in recent years. 

If you do catch someone breaching the injunction, you can apply to Court to have that person committed for contempt of Court, providing evidence to the Court of the breach.

Is it worth it?

An injunction is unlikely to be worth the cost and effort if you have an isolated incident of relatively small-scale fly-tipping.  But if you have a persistent issue with industrial-scale tipping, or issues across various sites or land parcels, then an injunction might well be worth considering.  Whilst an injunction is not a guarantee against further incidents, it is a serious deterrent that creates meaningful legal consequences for fly-tippers.  You could also consider joining together with other local farmers to apply for an injunction, especially if the fly-tipping is persistent but spread across a few farms in the area.

About the Author

Nina Winter is a Senior Solicitor with 16 years post-qualification experience in litigation and dispute resolution, with particular expertise in judicial review challenges to government and public body decisions and an established reputation as a legal expert in the agricultural industry. Nina read law at Oxford University before training and qualifying at Eversheds. In 2006 Nina joined the legal team of the National Farmers’ Union (NFU), the leading trade association representing farmers and growers in England and Wales. In 2009 Nina was appointed as the NFU’s Chief Legal Adviser, a position she held for 12 years before joining Prospect Law. Having worked as in-house counsel for 14 years, Nina is able to quickly identify the legal issues at stake and to work pragmatically and seamlessly as part of a team to achieve the client’s objective. Nina’s expertise in agriculture means she brings a comprehensive understanding of the issues facing agri-businesses to her legal work.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy, infrastructure and natural resources  sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and other technical experts.

This article remains the copyright property of Prospect Law Ltd and Prospect Advisory Ltd and neither the article nor any part of it may be published or copied without the prior written permission of the directors of Prospect Law and Prospect Advisory.

This article is not intended to constitute legal or other professional advice and it should not be relied on in any way.

For more information or assistance with a particular query, please in the first instance contact Adam Mikula on 020 7947 5354 or by email on adm@prospectlaw.co.uk.

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