Court finds Westminster City Council has unlawfully issued hundreds of thousands of pounds worth of fines to businesses and threatened thousands of businesses with criminal prosecution for legitimately presenting their waste for collection.
Westminster City Council admitted to sending out generic Enforcement Notices to businesses in the City, but the Judge found in evidence that the Council had a
“lack of knowledge and training around the use of section 47 of the Environment Protection Act” and “as no Enforcement Notice was in force [the Council] did not have the power to issue any fines or to threaten criminal prosecution.”
The Judge slammed the Council, saying “The existence of what appears to be a policy of non-engagement in any sort of dialogue prior to making a criminal offence seems, in my assessment, wholly unreasonable”.
The United Resource Operators Consortium (UROC), which is a trade association representing independent waste collectors, has been supporting its members in the fight for fairness and proportionality when it comes to local authority enforcement.
CEO of UROC, Jenny Watts, said
“We have been fighting the corner for our members for the past three years by trying to engage with Westminster City Council to ensure that engagement with businesses and proportionality is at the heart of their enforcement policy”.
Jenny Watts is also a solicitor and Managing Director at Watts Legal specialising in environmental law. Watts Legal represented several businesses in lodging appeals against enforcement notices at Westminster Magistrates’ Court and successfully challenged the unlawful Enforcement Notices with a damming judgement finding that the Council had been “wholly unreasonable”.
Ms Watts said
“Whilst the Council admitted that a ‘one size fits all’ is not workable, it had nonetheless issued blanket generic Enforcement Notices to some 48,000 businesses, without any prior engagement. The Court found that this was wholly unreasonable and that there was a ‘troubling’ lack of understanding of the law at a very high level within the Council.”
Ms Watts continued “This heavy-handed and threatening approach by the Council has been going on for decades. It is staggering that the law has been misapplied, and that [Council] employees have not received appropriate training. This has resulted in systemic failures by the Council with well-intended businesses paying fines that they should never have been issued with in the first place and at a time when small businesses are trying to stay afloat in the current economic climate.”
Not only had the Council not applied the Environmental Protection Act properly, it had also failed to comply with the Regulators Code which is a mandatory requirement placed upon local authorities to act fairly, proportionately and transparently when carrying out any enforcement action.
Andrew Thomas KC, barrister and head of Lincoln House Chambers, advocated for the businesses at Court and said
“The Council confirmed that it had no written policy or guidance concerning the issue of Section 47 Enforcement Notices. The Legislation sets out a specific legal test for the issue of a notice relating to the arrangements for presenting waste for collection and requires the application of individual discretion”, he continued “It is unlawful for a public authority to adopt a policy which fetters statutory discretion.
“The Council’s failure to conduct a proper investigation or to engage with businesses had resulted in notice(s) being served when it was unnecessary and had the inevitable consequence of imposing unreasonable requirements”, he continued, “This was not a case of an apparently sound administrative decision”.
The evidence demonstrated a significant burden on businesses and had the Enforcement Notices not been successfully challenged they would have taken effect in perpetuity.
Ms Watts said,
“The evidence demonstrated a significant additional burden that compliance would have imposed on the businesses had the notices not been successfully challenged the costs would have had a great impact on the businesses, with the ongoing threat of criminal prosecution had the businesses failed to adhere to the conditions stipulated in the notices facing fines of up to £1,000 per day. For reasons which became clear these were in reality ‘test cases’ as there are numerous other businesses in the City of Westminster which have received similar notices and are suffering the consequences unlawfully imposed upon them by the Council.”
The businesses were also successful in recouping their costs from the Council. Mr Thomas said: “The judgement speaks for itself … the businesses successfully appealed on the all of the statutory grounds advanced and were awarded costs”.
Ms Watts concluded “We have urged Westminster City Council to review its policies and procedures and to put right their wrong approach to enforcement. We want to see the Council refund all the illegal fines it has issued over many years and to have constructive dialogue with the business community, including the waste sector, especially as Simpler Recycling for business waste is due to come into force from 31st March 2025.”
If you believe your business has been fined illegally by your local council get in touch: [email protected]
