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Waste Watch - October 2010

31/10/10

This Update contains brief details of recent Government and EU publications, legislation, cases and other developments in England and Wales relevant to those interested in municipal waste management, which have been published in the past month. 

Items are set out by subject, with a link to where the full document can be found on the internet. All links are correct at the date of publication.

If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.

The following topics are covered in this update:

   Arm's Length Bodies    Municipal Waste
   Energy from Waste    Packaging Waste
   Environmental Liability    Wales
   Infrastructure     Waste Management
   Landfill    Waste PFI

 

Arm's Length Bodies

DEFRA: Public bodies announcement: the Cabinet Office has issued plans to substantially reform a large number of NDPBs. The proposals will be implemented through the Public Bodies Bill (see below). This press release gives details of how the proposals affect DEFRA’s ALBs: of the 85 DEFRA quangos listed, 53 will cease to be public bodies and their functions will either be brought back into Government, devolved to other bodies or converted into charities, or abolished altogether.
See also the full list of the Cabinet Office’s proposals. (14 October 2010)

Public Bodies Bill: this Bill has been introduced into the House of Lords and received its 1st Reading. it enables the announced reforms to public bodies to be implemented where legislation is needed. The Bill is an enabling bill, i.e. it will not itself make any changes to public bodies; instead, it: 

  • creates a legal framework that will enable Government departments to implement the majority of public bodies reforms that require legislation and that are not already covered in other departmental bills;  
  • creates legislative powers which give ministers the ability to abolish or merge bodies, modify a body's constitutional or funding arrangements, or transfer its functions elsewhere; and  
  • gives Secretaries of State the necessary powers to take forward changes to their bodies in secondary legislation when they are ready to do so.

The schedules include a list of a number of public bodies which were part of the review process and which would need legislation to make any reforms to them in the future, including bodies for which there are no plans to reform. This is to ensure that, if the Government wishes to make changes to these bodies in the future following further review processes, the necessary legal framework will already be in place.  The 2nd Reading is scheduled for 9 November 2010. (28 October 2010)

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Energy from Waste

Thames Water: Sewage project sends first ever renewable gas to grid: reports that the first plant injecting biogas into the gas grid has started operating, marking a major step forward in efforts to decarbonise the UK's heat network. The gas-to-grid unit at Didcot sewage works uses anaerobic digestion to treat sewage from 33,000 households and will produce enough biomethane to supply up to 200 homes. The gas produced by the process was previously flared. The project is a joint venture between Thames Water, Centrica and Scotia Gas Networks. (5 October 2010)

CBI: Going to waste – making the case for energy from waste: this report urges the Government to look into use of non-recyclable waste to meet the UK’s energy needs. It highlights the important role that energy from waste could play in a broad-based energy mix, which improves energy security, and argues that with strong leadership from the Government on planning, financing and procurement, the UK could quadruple the proportion of energy it generates from waste from 1.5% to 6% by 2015. The report focuses on the family of energy from waste technologies, which can be broadly divided into biological and thermal types. Anaerobic digestion can be used on-site to produce heat and electricity, or injected into the National Grid after being purified. Thermal treatments include technologies, such as gasification and pyrolysis, which involve heating waste to produce gas, as well as incineration. The CBI argues that non-recyclable waste should be incinerated, and emphasises that it is cleaner, more efficient, and environmentally sounder than burning fossil fuels or relying on landfill. (8 October 2010)

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Environmental Liability

European Commission: Report on Directive 2004/35/CE on the environmental liability with regard to the prevention and remedying of remedy environmental damage (COM (2010) 581 final): the Environmental Liability Directive 2004/35 establishes a framework based on the "polluter pays" principle, according to which the polluter pays when environmental damage occurs. This report looks at the effectiveness of the Directive in terms of actual remediation of environmental damage and on the availability at reasonable costs of, and conditions for, financial security for the listed activities. It looks in particular at: the use of a gradual approach allowing Member States to gradually phase in mandatory financial security, starting with riskier activities and operators and with damage to soil and water; setting ceilings for financial guarantees; and excluding low-risk activities. (12 October 2010)

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Infrastructure

HM Treasury: National Infrastructure Plan 2010: outlines the Government’s vision for the future of UK economic infrastructure. It discusses the scale of the challenge facing UK infrastructure and the major investment that is needed to underpin sustainable growth in the UK, focusing on the networks and systems in energy, transport, digital communications, floodwater, waste management and in science.  The plan sets out the Government’s role in specifying what infrastructure is needed and how it can remove barriers to mobilise both private and public sector resources to maintain the UK’s world class infrastructure. (25 October 2010)

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Landfill

Landfill Tax (Amendment) (No.2) Regulations 2010 (SI 2010/2437): these regulations, which came into force on 1 November 2010, amend SI 1996/1527 so as to clarify the definition of income for the purposes of the Landfill Communities Fund, which allows landfill site operators to claim a tax credit against their landfill tax liability for qualifying contributions made to enrolled environmental bodies. The regulations specify that “income” includes the proceeds from the disposal of an asset purchased with a qualifying contribution or purchased with proceeds from the disposal of an asset originally derived from a qualifying contribution. This provides assurance that funds will not fall outside the scope of the scheme and will, therefore, continue to be applied to the environmental objects of the LCF. (6 October 2010)

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Municipal Waste

Mayor of London: Draft Municipal Waste Strategy: seeks views on proposals to work with the boroughs to boost London's recycling rates, decrease waste reduce, reuse more items, to embrace less polluting waste technologies, make more money from waste and ensure streets are cleaner ahead of 2012. It covers waste collected by boroughs from households, some small businesses and litter from streets and parks. The target is to achieve zero municipal waste direct to landfill by 2025, with recycling targets of 45% by 2015, 50% by 2020 and 60% by 2031. The Mayor will be working with the London Waste and Recycling Board to fund new infrastructure to increase capacity and reduce reliance on landfill and incineration. The consultation closes on 14 January 2011. (18 October 2010)
The Mayor has also published a draft Business Waste Strategy for consultation, that sets a high-level direction for the management of business waste in London throughout the period 2010 to 2031, with specific actions focused on delivery of sustainable resource and waste management within the next two to three years. His target for commercial and industrial waste recycling is 70% by 2020 and for construction and demolition waste, 95% by 2020.

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Packaging Waste

DEFRA: Consultation on implementing the Packaging Strategy - targets, transparency and technical: summary of Consultation Responses and Government Response: sets out the UK packaging recycling targets for 2011 and 2012 under the Producer Responsibility Obligations (Packaging Waste) Regulations 2007, following consultation. Targets beyond 2012 will be set following the Waste Review, which is due to be published in Spring 2011. The targets for 2011 and 2012 are:

  • Paper / card 69.5% 
  • Glass 81%
  • Aluminium 40%
  • Steel 71%
  • Plastic 32%
  • Wood 22%
  • Total recycling 68.1%
  • Total recovery 74%

See also the draft Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations 2010. (26 October 2010)

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Wales

WLGA: Consultation response - Municipal Sector Plan: Part 1 - September 2010: sets out the response to WAG’s draft Municipal Waste Sector Plan that outlined how the Government expects councils to achieve the 70% recycling target for 2024/25 set in Wales’ Waste Strategy. Its general reaction is that the proposals are far too prescriptive and the ‘one size fits all’ approach will not work: local authorities must be allowed to develop systems that work for them. It seriously doubts the ability to achieve the 70% recycling target in the absence of other action in areas which are beyond the control of local government. WLGA is also concerned that many of the proposals (e.g. on bulky waste and on switching from purchase to hire) focus on very small parts of the overall waste stream that will make little impact on the scale of the task ahead yet could involve the establishment of disproportionately expensive bureaucratic systems to administer. (10 September 2010)

Welsh Assembly Government: Municipal waste management April – June 2010: sets out the latest quarterly results from the WasteDataFlow system for April-June 2010. The figures show that Wales failed to meet its target of 40% municipal reuse/recycling/composting for 2009-10 – the annual municipal waste dry recycling and composting rate increased from 28% in 2006-07 to 39% in 2009-10. (23 September 2010)

WLGA: Consultation response - Transposition of the revised Waste Framework Directive: comments on the draft regulations that implement the Directive. It calls for a greater consistency of approach to local authority waste arrangements within Wales as any significant differences between England and Wales in the waste hierarchy guidance could create issues, especially for ‘border authorities’. It notes that at various points WAG appears to be adopting a harder line approach than DEFRA and local authorities in Wales are concerned that there will be an over zealous and inflexible approach. This is giving rise to concerns about costs and affordability and about the consequent impacts on other services. (6 October 2010)

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Waste Management

Environment Agency: Pulverised fuel ash quality protocol: sets out end of waste criteria for the production and use of pulverised fuel ash (PFA) and furnace bottom ash (FBA) arising from combustion of coal with or without co-combustion materials. If these criteria are met, the resulting outputs will normally be regarded as having been fully recovered and to have ceased to be waste. The effect of the Protocol is that it will allow more than 300,000 tonnes per year of PFA and FBA to be used in bound materials, such as concrete blocks and grout, without the need for special permits, and will prevent the ash being landfilled. (7 October 2010)

Environment Agency: Waste information 2009: summarises statistics on the types of waste handled by permitted waste management facilities in 2009. (12 October 2010)

Veolia ES Nottinghamshire Ltd v Nottinghamshire CC; (1) Dowen (2) Audit Commission (Interested Parties) [2010] EWCA Civ 1214 (CA): this case concerned the disclosure of commercial confidential information in a waste management contract and in invoices submitted pursuant to that contract.
D, a local elector, applied to the Council to exercise his right to inspect under s.15(1) of the Audit Commission Act 1998 and take copies of all books, deeds, contracts, bills, vouchers and receipts relating to waste management in the Council’s area, including the schedules to the waste contract made between V and the Council and V’s monthly invoices for work done under the contract. V applied for an injunction to prevent the council disclosing the documents, claiming that they did not fall within s.15(1), and also that they had been supplied to the council on a confidential basis. The High Court judge held that D was entitled to inspect and make copies of the contract documents as they were related to the council’s accounts to be audited, and that that right overrode any express confidentiality obligations in the contract. V appealed, arguing additionally that s.15(1) had to be read down so as to exclude confidential information protected by the ECHR 1950 and/or the Public Procurement Directive 2004/18, and that the public inspection provisions of the 1998 Act only permitted use of the disclosed information for the purposes of an audit under the Act.
The Court of Appeal held, allowing the appeal in part, that the disputed documents were "relating to" the Council's "accounts to be audited" and so D was entitled to inspect them and make copies under s.15(1). Regarding the issue of confidentiality, ECHR Protocol 1 art.1, and possibly also art.8, provided sufficient reason to read down s.15(1) so as to make an exception for confidential information, subject to the public interest justification test. Any protection provided by the Public Procurement Directive 2004/18 would involve a similar balancing exercise. As to whether D could put the disputed documents to a use outside the purposes of the audit, he could not - access did not mean use for any purpose. However, the court would not spell out any implied statutory restriction on the use of information obtained under s.15(1) as there were many ways in which an interested person might seek to deploy such information and the lawfulness of such conduct should be decided on the facts of each case in private law where a claimant sought to restrain the use of the information, rather than in the abstract by reference to a general implied formula. (29 October 2010)

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Waste PFI

DEFRA: Changes to PFI programme: announces that, as part of the Spending Review process, DEFRA has withdrawn funding from seven Waste PFI projects, on the basis that these projects will no longer be needed in order to meet the EU’s 2020 landfill diversion targets. 11 other Waste PFI projects will receive funding, and DEFRA will continue support the 21 Waste PFI projects that have already been signed.
See also DEFRA's press release on the Comprehensive Spending Review, which states that over the four year CSR period, DEFRA's resource spending will reduce by 29% and its capital spending by 34%; it also sets out how DEFRA will manage these reductions. Each Government Department is to publish a business plan later this year setting out the details of its reform plans. Full details of the Spending Review 2010 are on the HM Treasury website. (20 October 2010)

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Disclaimer

This update is intended to give general information about legal topics and is not intended to apply to specific circumstances. Its contents should not, therefore, be regarded as constituting legal advice and should not be relied on as such. In relation to any particular problem that you may have you are advised to seek specific legal advice.

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