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Waste Watch - March 2012

01/04/12

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:

   Budget 2012    Packaging Waste
   Finance    Permitting and Licensing
   Hazardous Substances    Planning Policy
   Municipal Waste    Waste Policy
   Nuisance

Budget 2012

HM Treasury: Budget report 2012: sets outs the Coalition Government's proposals for wide reaching reforms to the tax system to reward work and support growth, along with the next stages in the Government’s plans for the supply side of the economy. The Chancellor states that the Government is committed to driving through the measures announced in The Plan for Growth and Autumn Statement 2011, and is taking further steps in this Budget to stimulate investment, exports, enterprise and the labour market. Announcements of interest to waste authorities include:

  • £150m of Tax Increment Financing for larger scale projects in core cities. Further details on a competition for allocating funding will be announced in the coming months;
  • the Government will introduce in 2012-13, a 20 basis points (bps) discount on loans from the Public Works Loan Board (PWLB) under the prudential borrowing regime for those principal local authorities providing improved information and transparency on their locally-determined long-term borrowing and associated capital spending plans. The Government will also work with the local authority sector to consider the potential for an independent body to facilitate the provision of PWLB lending at a further reduced rate, to authorities demonstrating best quality and value for money;
  • removal of duplication in the consenting regime for major infrastructure development by bringing forward legislation to adjust the scope of Special Parliamentary Procedure, with draft revised guidance published shortly to make the regime clearer and easier to use; 
  • the National Planning Policy Framework will be published by the end of March 2012 (see below), coming into force for plan-making and decisions from  that point onwards, with appropriate implementation arrangements for local authorities with pro-growth policies in local plans;
  • further measures to deregulate and simplify the planning system. The Government will shortly consult on reducing information requirements and on proposals to amend the Use Class Order and the associated permitted development rights to make changing the use of buildings easier, for implementation by April 2013. In addition, new permitted development rights for micro-renewable energy installations will come into force in April 2012;
  • the Government will scrap or improve 84% of health and safety regulation, including legislating in 2012 so that ‘strict liability’ provisions in health and safety law will no longer hold employers to be in breach of their duties when they have done everything that is reasonably practicable and foreseeable to protect their employees.

Also published alongside the Budget report is the National Infrastructure Plan 2012 delivery update with an update on progress that has been made on the priority infrastructure investments identified in the 2011 National Infrastructure Plan and progress on other infrastructure measures identified in the Plan and the 2011 Autumn Statement.
See also the LGA's Budget 2012 - On the day briefing and the DCLG press release. (21 March 2012) 

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Finance

DBIS: Green Investment Bank to be based in Edinburgh and London: announces that Edinburgh has been chosen from the 32 applications to be the headquarters of the Green Investment Bank (GIB). The bank will also have an office in London. The GIB is designed to accelerate private sector investment in the UK’s transition to a green economy. Its first priority sectors will be offshore wind power generation, commercial and industrial waste processing and recycling, energy from waste generation, non-domestic energy efficiency and support for the Green Deal, subject to EC approval. (8 March 2012)

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Hazardous Substances

Control of Asbestos Regulations 2012 (SI 2012/632): these regulations, which come into force on 6 April 2012, revoke and re-enact SI 2006/2739 with some amendments, so as to comply with the European Commission’s reasoned opinion dated 16 February 2011 that the omission in the 2006 Regulations of certain terms from the Asbestos Directive 2003/18 meant that, in its view, the UK had failed to fully implement the Directive. The main changes are to the scope of the exemption set out in the Directive in relation to the requirements to notify work to the relevant enforcing authority, carry out medical examinations and to keep a register of work. (5 March 2012)

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Municipal Waste

Controlled Waste (England and Wales) Regulations 2012 (SI 2012/811): these regulations, which come into force on 6 April 2012, revoke and replace SI 1992/588. They classify waste as household, industrial or commercial waste for the purpose of Part 2 EPA 1990, and also list the types of waste for which local authorities may make a charge for collection and disposal. They enable local authorities  to charge under s.45 EPA 1990 for the disposal of waste arising from a wider range of non-domestic premises than the 1992 Regulations permitted; they also consolidate previous amendments, and include some amended and updated definitions and classifications to improve the clarity of the Regulations and bring them into line with other recent legislation. They also provide that certain litter and refuse is to be treated under Part 2 EPA 1990 in the same way as waste collected under s.45 of the Act. (5 March 2012)

Environmental Protection Act 1990 (Commencement No. 19) Order 2012 (SI 2012/898 (C.28)): this Order brings into force on 1 April 2012 s.162(2) of, and Sch.16 Part 2 to, the 1990 Act relating to the repeal of s.1 of the Refuse Disposal (Amenity) Act 1978 (duty of local authorities to provide places for refuse disposal). (20 March 2012)

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Nuisance

Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312 (CA): this was a group action by 152 households who appealed against the dismissal of their 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. The court held 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. 
The Court of Appeal held, allowing the appeal, that the "controlling principle" of the law of nuisance of "reasonable user" was a different way of describing old principles, not an excuse for reinventing them. There was no principle that the common law should "march with" a statutory scheme covering similar subject-matter. Short of express or implied statutory authority to commit a nuisance, there was no basis for using such a statutory scheme to cut down private law rights. The terms of any permission or permit were relevant as an activity which was conducted in contravention of planning or environmental controls was unlikely to be reasonable; but the converse did not follow. A waste permit was granted by the Environment Agency, not the planning authority; and for purposes concerned, not with the balance of uses in the neighbourhood (which remained unchanged), but with the regulation of one particular activity within it. The permit was not "strategic" in nature, nor did it change the essential "character" of the neighbourhood, which had long included tipping. The only change was the introduction of a more offensive form of waste, producing a new type of smell emission. The permit did not, and did not purport to, authorise the emission of such smells. The claimants did not have to allege or prove negligence or breach of condition - even if compliance with a statutory permit was capable of being a relevant factor, it would be for the defendant to prove compliance. There was no general rule requiring or justifying the setting of a threshold in nuisance cases, and by adopting such a threshold, the judge had deprived some of the claimants of their right to have their individual cases assessed on their merits.
The Court of Appeal conducted a detailed analysis of the judge's discussion of the principles of nuisance, covering reasonable user, statutory authority, identifying a threshold and assessing the individual claims, and criticised his approach. The CA stated that the fundamental principles of the law of nuisance were settled by the end of the 19th century and have remained resilient and effective since then. The judge should not have allowed himself to be deflected from his ordinary task of assessing the evidence against the established legal principles and exercising his judgement on the facts of the case. (19 March 2012)

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Packaging Waste

DEFRA: Summary of consultation responses and Government response to the consultation published on 16 December 2011 entitled ‘Consultation on recovery and recycling targets for packaging waste for 2013-2017’: sets out how the Government intends to proceed in light of responses received to the consultation on proposals for new recovery and recycling targets for 2013-17. (21 March 2012)

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Permitting and Licensing

Environmental Permitting (England and Wales) (Amendment) Regulations 2012 (SI 2012/630): these regulations, which come into force on 6 April 2012, make a number of amendments to SI 2010675, including: 

  • reducing regulatory requirements for those who operate certain anaerobic digestion installations or mobile plant and for those who burn waste-derived fuel that has ceased to be waste; 
  • making it easier to transfer permits in certain situations; 
  • provide for the vesting of an environmental permit in the personal representative of a deceased operator; and 
  • make relatively minor changes to certain exempt waste operations.

(5 March 2012)

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Planning Policy

DCLG: National Planning Policy Framework: this new planning framework (NPPF), which came into force immediately on publication, sets out the Government’s planning policies for England and how these are expected to be applied. It must be taken into account in the preparation of local and neighbourhood plans, and is a material consideration in planning decisions. The NPPF replaces most of the existing planning policy documents (listed in Annex 3). It does not contain specific waste policies, since national waste planning policy will be published as part of the National Waste Management Plan for England; however, local authorities preparing waste plans and taking decisions on waste applications should have regard to these policies so far as relevant. Annex 1 sets out how the NPPF is to be implemented: for 12 months from the day of publication, decision-takers may continue to give full weight to relevant policies adopted since 200439 even if there is a limited degree of conflict with the NPPF. (27 March 2012)
Bevan Brittan has issued an Alert on the new NPPF: National Planning Policy Framework published.

DCLG: Technical Guidance to the National Planning Policy Framework: additional guidance to local planning authorities to ensure the effective implementation of the NPPF on development in areas at risk of flooding and in relation to mineral extraction. It retains key elements of PPS25 and of the existing Minerals Policy Statements and Minerals Planning Guidance Notes. This guidance is retained as an interim measure pending a wider review of guidance to support planning policy. (27 March 2012) 

Cornwall Waste Forum St Dennis Branch v Secretary of State for Communities and Local Government and SITA Cornwall Ltd [2012] EWCA Civ 379 (CA): the SoS appealed against the quashing of his decision to grant planning permission  to SITA for a waste treatment plant. At the public inquiry CWF challenged the Environment Agency's use of the "1% rule": i.e, that if the long term "process contribution" for a pollutant was less than 1% of the relevant Air Quality Standard, its effects were deemed "insignificant".  The Council and the CWF argued that this rule should not be applied where pollution levels were already substantially above the "critical load". The inspector found that the issue of air emissions from incineration on the site was a matter for the Environment Agency, which had issued a permit; the SoS agreed and granted permission. CWF appealed, contending that the decision was unfair as the SoS had failed to consider the legality of the 1% rule.
The court held, dismissing the appeal and confirming the SoS's decision, that the only substantive criticism of the SoS's decision related to his reliance on the 1% rule as a test of "significance" under the Directive. The evidence before the inquiry was that the rule had been used in published guidance by the Agency for a number of years without legal challenge. The Council, which initially challenged the use of the rule, did not maintain that challenge but instead pointed to the severe economic and practical consequences of any further delay in confirming the permission. The CWF had not challenged the legality of the rule either by way of judicial review of the permit, or as part of these proceedings. There were no valid grounds to justify the CWF's request that the court send the issue back to the SoS so that he might address it, purely on the basis that it had not been shown to be unarguable, and without any persuasive reason to think that ultimate decision would be any different. (29 March 2012) 

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Waste Policy

DEFRA: Progress with delivery of commitments from the Government’s Review of Waste Policy in England (2011): reports on progress in delivering the actions in the Government’s Review of Waste Policy in England 2011. DEFRA states that good progress has been made since the Review was published in June 2011 with 90 per cent of actions either completed or on track. It has extended the timetable for a few actions, to improve prospective outcomes or because of prioritisation of its resources. (27 March 2012)

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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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