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Waste Watch - May 2011

31/05/11

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:

   Finance    Permitting and Licensing
   Health and Safety    Recycling
   Nuisance    Wales
   Packaging

 

Finance

Cabinet Office: Nick Clegg delivers details of the Green investment Bank: the Deputy Prime Minister has given details of the workings of the world’s first Green Investment Bank, which is intended to bridge the gap between venture capital and the green economy, provide the finance for low carbon infrastructure and lay the foundation for long-term, balanced growth. He said that the Government will bring forward legislation to ensure both the operational independence and enduring nature of the Bank and has guaranteed £3bn for the initial capitalisation of the Bank. Early possible priorities for the Bank are offshore wind, waste, and non-domestic energy efficiency. (23 May 2011)

DBIS: Update on the design of the Green Investment Bank: this progress report sets out more detail on the Green Investment Bank’s governance and business model. The Bank’s mission will be to accelerate private sector investment in the UK’s transition to a green economy. It will play a vital role in addressing market failures which are holding back private sector investment. Sectors likely to be eligible for intervention initially include offshore wind, non-domestic energy efficiency and waste. Work is ongoing to explore other sectors which will change over time. Its initial remit will be to focus on green infrastructure assets, and on the twin objectives of achieving significant green impact and making financial returns. The Government has committed in the 2011 Budget to fund the Bank with £3bn over the period to 2015. It will evolve over three phases: 

  • incubation from 2012 to State Aid approval. Government will make direct investments; 
  • establishment as a stand-alone institution following approval; 
  • full borrowing powers from 2015, subject to public sector net debt falling as a percentage of GDP.

(24 May 2011)

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Health and Safety

DWP: Independent review of health and safety legislation – call for evidence: the Government has established an Independent Review of Health and Safety legislation that will consider the opportunities for reducing the burden of health and safety legislation on UK businesses while maintaining the progress made in improving health and safety outcomes. The Review is chaired by risk management specialist Professor Ragnar Löfstedt and is due to make recommendations to Ministers by the end of October 2011. It has issued a call to all interested parties to provide evidence that will help inform the scope for reducing the burden of health and safety regulation on UK businesses whilst maintaining health and safety outcomes. Submissions must be made by 29 July 2011. (20 May 2011)

HSE: Good control practice for workers' exposure to gases in landfill - Sampling and measurement report: sets out the findings of a project that gathered information on the potential exposure of workers to hazardous trace components in gases generated by decomposition of landfill during specific types of tasks, to provide evidence to develop guidance on good practice for the control of exposure. The study was conducted at six landfill sites identified as having the potential to generate high concentrations of three representative trace components: vinyl chloride, hydrogen sulphide and benzene. Comparisons of personal exposures were made with the levels found in the collected raw gas. It found that the personal task based exposures (given the environmental conditions prevailing at the time monitoring was conducted) were insignificant for all three components and would not normally pose a health concern. (20 May 2011)

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Nuisance

Barr v Biffa Waste Services Ltd [2011] EWHC 1003 (TCC): this was a group action by 152 households who brought a claim in nuisance against BWS, a waste disposal company, relating to odour from pre-treated waste emanating from BWS's landfill site that was located near the claimants’ housing estate. BWS’s principal defence was one of statutory authority; they also contended that the legislation, the detailed terms of their permit and recent nuisance cases meant that they had reasonable user of land. The claimants contended that they had inalienable common law rights in nuisance which had not been affected, let alone excluded, by the relevant environmental and landfill legislation and the detailed terms of BWS's permit. BWS submitted that it would be unfair and unrealistic if all the legislation and the terms of their permit were ignored, so that they could comply with all their numerous obligations and the detailed provisions of their permit yet still find themselves liable to the claimants in nuisance, as if the legislation and the permit did not exist.
The court held, dismissing the claim, that the critical issue was whether the operator of a landfill site, who complied with the detailed requirements of his permit and was not alleged to be negligent, was liable in nuisance for the inevitable consequences of those permitted activities. After reviewing the relevant case law and legislation, the judge found that the permitted use of the site as a landfill site meant that the carrying out of permitted activities of waste disposal, performed in accordance with the detailed terms of the permit and without negligence, amounted to a reasonable user of land. In those circumstances, whilst claims in nuisance that involved allegations of negligence against BWS would have been open to the claimants, claims in nuisance alone were not.
Regarding BWS’s defence of statutory authority, BWS was not in the same position as a statutory undertaker and the defence of statutory authority was simply not open to them. BWS had no statutory obligations themselves: they were not providing services to the wider public whether they wanted to provide such services or not; they were operating the landfill site on an entirely voluntary basis; and provided they complied with the terms of their permit, they were free to follow completely the dictates of their commercial interests. They had no wider obligations to the public. More fundamentally, they had no actual duties under the various statutes at all. In the absence of any express or implied statutory duties on the part of BWS, the existence of the statutory regime did not equate or give rise to a complete defence of statutory authority. Article 8 ECHR did not apply in this case as that Article could only be breached in a case of 'severe environmental pollution' which was not properly controlled by the State, which was not the case here. Article 8 did not guarantee any right to freedom from transient odour or noise nuisance, particularly one with no impact on health.
Obiter: had BWS been found liable, the right assessment for damages would have been £1,000 p.a. per household for each year when the threshold was exceeded. The alleged nuisance had no effect on the theoretical rental values of the claimants' properties, nor did it cause any capital diminution.
The judge also noted that the claimants might have been successful if their claims had included breach of permit or if they had pleaded negligence. (19 April 2011)

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Packaging

European Commission: Consultation on options to reduce the use of plastic carrier bags and options to improve the requirements of biodegradability in the Directive 94/62/EC on packaging and packaging waste and the visibility of biodegradable packaging products to consumers: seeks views on how best to reduce the use of plastic carrier bags, including whether charging and taxation would be effective, or if other options such as an EU-level ban on plastic carrier bags would be better. It also asks for comments on the adequacy of current requirements on compostability and biodegradability in the EU Packaging Directive. The Directive doesn't allow for a clear distinction between biodegradable products that should biodegrade in natural conditions in the environment, and compostable products that only biodegrade in industrial composting facilities. The Commission considers that advertising a packaging product as biodegradable when in fact it will not biodegrade in natural conditions can be misleading, and contributes to the proliferation of litter. The consultation closes on 9 August 2011. (17 May 2011)

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Permitting and Licensing

Environment Agency: Making the steps to permitting: provides a basic introduction to permitting for operators of waste activities who have already made the decision that their operation is no longer exempt and need to apply for a permit. It gives more information on applying for and operating under a permit. (19 May 2011)

R (Berry & Marshall (Bolton Wood) Ltd) v Secretary of State for Environment, Food and Rural Affairs [2011] EWCA Civ 636 (CA): B&M appealed against the court’s decision to uphold the planning inspector’s refusal to grant a PPC permit to deposit waste on its quarry site. The inspector had held that a pre-condition that planning permission for the relevant activity either existed or was not needed, had not been not satisfied. B&M contended that it had planning permission under the Town and Country Planning General Development Order (GDO) 1977, which permitted the deposit of waste materials in excavations already lawfully used for that purpose so long as the height of the deposit did not exceed the level of the adjoining land, and that such permission continued even though that GDO had been revoked and replaced by the GDO 1988. The judge found that after the GDO 1977 was revoked, any fresh deposit of waste which either extended the superficial area or the height of the deposit above adjoining land required an express grant of permission by the local planning authority. B&M submitted that a permission granted under the GDO 1977 was a permission for the use of land, rather than for an operation and therefore, so long as that use was neither abandoned nor materially changed, further deposits would continue to be permitted notwithstanding the revocation of that Order.
The court held, dismissing the appeal, that B&M’s “historic GDOs argument” rested on a misconception: tipping of waste involved a material change of use, but of a particular kind. In most contexts a material change of use involved a single act of development and no further permission was required to continue it unless and until there was a further material change. Whether a simple extension of the spatial area of an activity constituted such a material change would raise questions of fact and degree, and might also depend on identifying the appropriate "planning unit". However, s.55(3) TCPA 1990 applied a different regime to the tipping of waste: a further material change of use occurred every time the superficial area of the deposit was extended, and it did not matter that the extended tipping involved a continuation of the same general activity within the same site or planning unit, so that under ordinary principles there was no material change in the use of the overall site. The statute "declared" it to involve a material change of use, regardless of what the position might be under the general law. Once the GDO was revoked any further extensions, even within the 1983 licence area, involved new acts of development requiring permission in their own right. They were not permitted by the replacement GDOs, and they were not authorised by any specific permission. Accordingly they could not provide a basis for the PPC permit for any parts of the application site which had not been tipped before 1988. (26 May 2011)

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Recycling

London Assembly: Carrots and sticks - A review of waste financial reward and compulsory recycling schemes: the Mayor has set a challenging target for Londoners to recycle at least 45% of household waste by 2015, rising to 60% by 2031. This report by the Assembly’s Environment Committee says that schemes which reward or penalise Londoners for recycling rubbish work well at first, but it is unclear whether they will lead to long-term changes in behaviour. It finds that recycling rates have improved quite dramatically where boroughs have introduced penalty and reward schemes; however, there are benefits and drawbacks associated with both types of schemes, suggesting a single solution will not work across the capital. Incentive schemes need to be specifically designed to address London-specific issues around housing stock, transient populations and equality of access. The key findings are: 

  • a more comprehensive evidence base should be developed so the effect of incentive schemes on recycling rates can be properly determined;
  • communication about the value of recycling and the need to manage waste sustainably is key to the success of the schemes; and
  • weight-based reward schemes could have unintended consequences, e.g. individuals deliberately generating more waste to maximise their rewards.

(17 May 2011)

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Wales

Waste (Miscellaneous Provisions) (Wales) Regulations 2011 (SI 2011/ 971 (W. 141)): these regulations, which came into force in Wales on 29 March 2011, amend several Welsh SIs so as to transpose, in relation to Wales, the Waste Framework Directive 2008/98. They also revoke the Environmental Protection (Duty of Care) (Amendment) (Wales) Regulations 2003 (SI 2003/1720 (W.187)). They are supplementary to the Waste (England and Wales) Regulations 2011 (SI 2011/988).

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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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[Bevan Brittan] know our requirements on the private sector side, but also know our clients...they know where the public sector is coming from.
Declan Gillespie, Commercial Director, John Laing

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