How can England and Wales solve its fly-tipping crisis?

Organised, high-volume fly‑tipping (the practice of illegally dumping waste) is becoming increasingly prevalent across the country, creating a growing burden on commercial landowners and councils in both cost and time.

On commercial land, the prevailing pattern is clear: trespassers enter land (or break into property unlawfully), dump as much waste as possible as quickly as possible, and leave only when the court orders them to vacate. While significant harm may be caused within a matter of hours, acquiring legal remedy is never as swift.

Prevalence and impact 

On 28 October, the House of Lords Environment and Climate Change Committee published a policy letter. It offers a window into the extent of "waste crime" faced by landowners, local authorities and the courts each year.

Fly-tipping falls neatly under the "waste crime" umbrella, and the letter highlights that over 38 million tonnes of waste is believed to be illegally managed at some point in the chain each year.

The impact is felt most acutely by landowners whose properties comprise large warehouses, large open spaces, or both – often, those in the industrial and logistics sectors. The Department for Environment, Food and Rural Affairs (Defra) reported that local authorities in England dealt with around 1.15 million fly-tipping incidents, with Croydon crowned as the country's fly-tipping capital between 2023 and 2024.

As commercial developers and public authorities see an increase in organised fly-tipping on commercial sites, the County Courts and High Court are increasingly faced with urgent claims for eviction. 

Current legal routes to regain possession

The appropriate method of enforcement, and by whom, depends on the severity of the trespass, the nature and use of the land over which it takes place and, most importantly, the risk of harm and disturbance to persons and/or property on or around the land. Landowners are often unclear which option best suits their circumstances.

Should a court order appear the only viable option, landowners should be primed to instruct solicitors, prepared with details of the trespass, to minimise legal costs, expedite proceedings and thereby minimise future damage to property, including:

• The (estimated) number of squatters, including any children, vehicles or animals.
• Details of how the squatters gained access to the site and photos of their occupation.
• Details of when and how the landowner became aware of the trespassers and any conversations that have taken place.
• A copy of the notice served requesting the trespassers leave (if any).
• Details of any threats of violence, harm to life or  damage to property (the "exceptional circumstances" which could entitle the landowner to issue in the High Court).

The resulting claim can then follow one of three possible routes: a County Court or High Court possession claim or an application for an interim possession order.

High Court possession claim 

If an applicant can demonstrate that there is a "substantial risk of public disturbance or of serious harm to persons or property, which properly require immediate determination", proceedings can be brought in the High Court and a hearing listed, following which an order can be granted together with a writ of possession.

This often results in the eviction taking place within one to two weeks of the claim being issued. Where the circumstances allow, this is currently the quickest means by which to obtain possession back from trespassers; but given the alarmingly rapid rate at which waste is tipped, it is not quick enough.

Even in the most expeditious of claims, landowners are left facing the costs of clearing up the waste, sometimes into the hundreds of thousands of pounds.

County Court possession claim 

If the circumstances to issue in the High Court cannot be made out, proceedings may be pursued in the County Court. The speed at which a possession order may be obtained and enforcement officers instructed to evict the trespassers depends heavily on the County Court in question.

This route is often far slower than the High Court and the order would need to be "transferred-up" to the High Court for enforcement, in any event.

Application for an interim possession order 

To address delays in the County Court in such matters, the interim possession order (IPO) procedure was introduced to try and accelerate possession claims against trespassers. Here a claimant issues the possession claim and applies for an IPO contemporaneously, aiming for an early interim hearing.

If the IPO is ordered and served, it then becomes a criminal offence for the trespassers to remain on the land or return within 12 months. The IPO procedure also requires the claimant to give a cross‑undertaking in damages, in case it later transpires that someone with a right to occupy has been removed.

However, by the time proceedings are issued and an interim hearing is listed in the County Court, substantial levels of waste will already have been fly-tipped. In many cases, the harm is done before the order bites – and that is if the police even have capacity to enforce the terms of the IPO.

The option most appropriate is, ultimately, dependent on the severity of the trespass, and is affected by the presence of threatening behaviour, whether a vehicle is on site and the means by which the trespass occurs. It is therefore important to record, at the outset, any facts and evidence relating to the unlawful occupation. 

The case for reform

As the current system stands, where a landowner is unable to make out the "exceptional circumstances" for proceedings in the High Court, the County Court route remains a roadblock to efficient resolution of possession claims.

For multi-site commercial landowners, large-scale fly-tipping can create immediate safety hazards and substantial disruption to businesses, or intended redevelopment, for the duration of the waste's presence.

Even if a possession claim is listed in early course, County Court timescales mean commercial landowners are outpaced by the seemingly organised dumping, leaving them to bear the costs relating to the court process, interim security, and clearing up the site.

Osborne Clarke comment

From a practical perspective, it is costly and time consuming for occupiers to deploy round‑the‑clock security in the face of multiple, sometimes aggressive, trespassers. Focus for reform should be on practical improvements that save time and thereby reduce both harm and eventual cost.

It remains to be seen what that reform might look like. While the Law Commission continues to consider reform for commercial property and business tenancies, there are no indications that "waste crime" forms part of that agenda, despite the prevalence of the issue.

Practically speaking, landowners need to be able to recover possession from trespassers who are fly-tipping a lot quicker than is possible under the current system.

One possible recommendation for reform would be to expressly include reference to fly-tipping as part of the "exceptional circumstances" for issuing in the High Court. Another reform proposal would be to provide means for the High Court to deal with possession claims against trespassers on paper, subject to two conditions. The first, the claimant would provide the same undertakings in damages as are provided when applying for an IPO. The second, the order would grant the defendants the right to apply for an urgent hearing in the event they believe they have a legal right to possession of the land (although it seems unlikely that anyone with a legitimate right to the land would be fly-tipping large amounts of waste there).

Such reform would preserve due process while delivering timely court responses in situations where delay drives cost and damage. The result: earlier judicial oversight, faster possession, lower remediation costs, and a clearer deterrent effect, without diluting protections for anyone with a legitimate right to be on the premises. 

Osborne Clarke is constantly thinking about how to better support its clients in relation to this issue. If you would like further guidance on live incidents, portfolio risk or any other issue, please get in touch.

This article was written with the assistance of Hannah Williams, trainee solicitor.

Khushal Thobhani, an associate with Osborne Clarke, contributed to this Insight.