Builder refuses to pay £500 fly-tipping penalty

Frank Brown says some people would give in and pay the penalty, but he is prepared to fight it in court

A builder has accused a private enforcement firm of bullying him to pay £500 after he left building materials on a grass verge.

Frank Brown was working on a house in Bye Pass Road in Chilwell, Nottinghamshire, where he was issued with a fixed penalty notice (FPN) for fly-tipping.

However, a specialist solicitor has told the BBC that the FPN was incorrectly issued, as the building materials had not been discarded and were therefore not waste.

It was issued by Waste Investigations Support and Enforcement (WISE) - a firm that works with more than 40 local authorities across England, including in Broxtowe where Mr Brown was working. WISE has not responded to a request for comment.

WISE says it issues people with FPNs for offences such as littering, dog fouling and fly-posting, and it claims to have "an impressive 79% payment rate".

Mr Brown said the FPN was "utterly ridiculous" and he would rather be taken to court than pay it.

"It's just bullying tactics," said Mr Brown. "It was as though he was waiting to pounce... he just didn't seem to have any feelings.

"It was really upsetting. My wife was really upset - we can't afford to pay this."

Mr Brown said other people shared similar experiences when his wife posted about it on Facebook.

"I think these companies are out to make a quick buck and upset people," he said.

Why was the FPN issued?

Mr Brown was accused of fly-tipping because he left two bags of sand outside the boundary of a property while he was working there

Mr Brown was issued with the FPN on Tuesday 24 June.

He said he left two bags of sand on a grass verge just outside the boundary of the property he was working on, because the driveway was full with two cars and a skip.

Mr Brown said he was working inside the property when an officer knocked on the window and asked him to go outside.

"I went out and he wanted my name and address," said Mr Brown.

"I was a bit reluctant to give it him but he said 'you could be in a lot of trouble'."

Although the officer was working for WISE, Mr Brown said he was wearing a top that said "Broxtowe Borough Council".

Mr Brown said the officer pointed to the two bags of sand and accused him of fly-tipping.

"I said to him, 'OK mate, I'm sorry if there's been a misunderstanding, I'll remove it now'," said Mr Brown. "But he said 'no it's too late'."

The officer then issued a printed FPN asking him to pay £500 as an "alternative to prosecution".

Is the £500 penalty enforceable?

The FPN has Broxtowe Borough Council's logo at the top, but it was issued by a contractor working for WISE

The FPN was issued under section 33 of the Environmental Protection Act 1990.

It claims Mr Brown committed an offence of fly-tipping.

However, Michael Orlik, an independent solicitor who specialises in highways, told the BBC that the FPN had been issued incorrectly.

"It has been issued because the builder is alleged to have deposited waste unlawfully, contrary to the Environmental Protection Act, but under section 75, waste means any substance or object which the holder discards," said Mr Orlik.

"Clearly the builder has not discarded these bags, so it's not waste."

Mr Orlik said Mr Brown should appeal against the FPN.

"They should cancel it having found out their mistake," said Mr Orlik.

If Mr Brown does not pay, he could be prosecuted and taken to court, where his case would be heard before a district judge, or two or three lay magistrates.

"That's where he would say 'I'm not going to pay it, I'm not liable to pay it, you've got to prove beyond reasonable doubt that this is an offence, and that I discarded it, but I haven't discarded it, I'm using it'," said Mr Orlik.

"No solicitor can ever forecast a judge, but I think it's most unlikely there would be a conviction, and the charge would be dismissed."

Mr Orlik said leaving building materials on a grass verge could be an offence under the Highways Act 1980, but only the highway authority could enforce this.

This would be Nottinghamshire County Council, rather than Broxtowe Borough Council.

"A highway inspector could arrive on the site under section 149 of the Highways Act 1980 and say to the builder, 'please remove this, it's a nuisance'," said Mr Orlik.

"It's hardly a nuisance, because the photograph shows that there's a carriageway, a footway, and a verge, and people are unlikely to walk on the verge so it's not a nuisance."

What has the council said?

WISE says it works with more than 40 local authorities across England, including in Grimsby (pictured)

Broxtowe Borough Council has been using WISE officers to enforce fly-tipping and littering laws since April, as part of a 12-month trial scheme.

In a statement, the council said: "The council uses a third party contractor, WISE, for enforcement on fly-tipping and littering in the borough and are therefore unable to comment on individual cases.

"However, residents are able to appeal a fixed penalty notice by contacting [e-mail] or call 0333 577 2949."

The BBC asked the council for details about its financial arrangement with WISE, including how money from the FPNs is split, but the council has not responded to this.

In a press release issued in May, the council said income from FPNs "can only be allocated towards measures that mitigate fly-tipping incidents or support actions that will help to prevent further issues".

Broxtowe borough councillor Tyler Marsh, ward councillor for where the FPN was issued, said he had spoken to Mr Brown and would monitor what happened.

"I have spoken with Frank and the relevant council officer and will be monitoring the progress of the appeal, as well as scrutinising the contract and current operations of WISE in Broxtowe," he said.

"WISE's contract with the council is currently in its trial period. As councillors, we will factor reports like this into our review process and determine whether this approach is working for residents."