Waste Watch - March 2013

This Update contains brief details of 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:

Environmental Liability	Planning
Finance	Shipment of Waste
Municipal Waste	Waste Collection
Permitting and Licensing	Waste Minimisation

Environmental Liability

Thames Water Utilities Ltd v Bromley Magistrates' Court; Environment Agency (Interested Party) [2013] EWHC 472 (Admin) (Admin Ct): TWU applied for judicial review of its conviction by the Magistrates’ Court for depositing controlled waste on land without a waste management licence, contrary to s.33(1)(a) EPA 1990. The prosecution was brought by the Environment Agency after sewage escaped from TWU’s system onto residential gardens, allotments and the highway. The issue for judicial review was whether, on the true interpretation of s.33(1)(a), the unintended escape of sewage amounted to a "deposit" of the sewage on land by TWU. The district judge found that  “deposit” in s.33(1)(a) clearly covered the unintended and unwanted escapes of sewage from TWU’s system as, whenever or however sewage escaped from the system, it had been “put, place(d) or set down” by them within the ordinary linguistic meaning of the word.
The court held, refusing the application, that when construed in the context both of subs. (1)(a) and s.33 as a whole, the word "deposit" included unintended escapes. "Deposit" was an ordinary and uncomplicated English word so the question was whether an unintended escape fell within a reasonable range of meanings for "deposit”. The subsection should not be limited to instances of misapprehension as, in the absence of the requirement that the "deposit" took place "knowingly", it was also naturally capable of extending to a "deposit" resulting from an unintended escape. The usual and strong presumption of a mens rea was displaced and looking at the question in the round, it was clear that the intention of the legislature was to impose strict liability under the first limb of s.33(1)(a), so that "deposit" did include an unintended escape of sewerage from the sewerage undertaker's network. (22 March 2013)

^back to top 

Finance

HM Treasury: Budget 2013: the Chancellor has delivered his Budget for 2013, which is set out under the themes of economy and public finances, growth and fairness. Key points relevant to the environmental and waste sector are: 

• departmental resource funding will be cut by £1.1bn in 2013-14 and £1.2bn in 2014-15, the equivalent of a 1% reduction for most government departments. In the short-term, these funds will be used to support housing. Health, schools and Official Development Assistance will be protected. Local government and police will be exempt from a further cut in 2013-14; 
• public sector pay awards in 2015-16 will be limited to an average of up to 1%; 
• increase in capital spending plans by £3bn p.a. from 2015-16, to lock in recent increases in capital spending over the Spending Review 2010 period, funded through reductions in current spending. The Government will also set out long-term plans to 2020-21 for the most economically valuable areas of capital expenditure in the 2015-16 Spending Round; 
• reduction in the main rate of corporation tax by an additional 1% in April 2015, so it will reach 20% per cent; 
• £3bn extra for new transport and infrastructure projects every year from 2015-16 until 2020, total of £15bn;  
• a package of support for the UK shale gas industry including technical planning guidance on shale gas, a new shale gas field allowance and extending the ring fence expenditure supplement from six to ten years for shale gas projects; 
• the Government will implement a series of reforms to effect a step change in its approach to infrastructure delivery, including an enhanced central cadre of commercial infrastructure specialists in IUK who will be deployed into infrastructure projects across government, and the establishment by the summer of tough new Infrastructure Capacity Plans; 
• Government procurement from small firms to rise fivefold;
• cancellation of the fuel duty increase that was planned for 1 September 2013; 
• a new tax relief to encourage private investment in social enterprise. There will be a consultation on the details of the relief by summer 2013 and the relief will be introduced in Finance Bill 2014.
  

Alongside the Budget, HMT has published a National Infrastructure Plan Update 2013 that sets out the progress that has been made on the Top 40 priority infrastructure investments identified in the National Infrastructure Plan 2011. (21 March 2013)

^back to top 

Municipal Waste

EEA: Managing municipal solid waste – A review of achievements in 32 European countries: presents the findings from the first part of a pilot project that reviewed municipal solid waste management (MSW) in EEA member countries, using indicators, country factsheets and relevant European Commission studies. The report shows that Austria, Germany and Belgium recycled the largest proportion of MSW in Europe in 2010, while the UK increased the share of municipal waste recycling from 12% to 39% between 2001 and 2010. The report concludes that although some countries have rapidly increased recycling rates, Europe is still wasting vast quantities of valuable resources by sending them to landfill, and many countries risk falling short of legally binding recycling targets.
The EEA has also published separate reports for each EEA member country alongside the main report. Municipal Waste Management in the United Kingdom finds that there is a high level of confidence that the 50% MSW recycling target will be met by 2020, but slightly lower confidence about meeting the 2020 Landfill Directive target. This is in part due to concerns over the time available to build the necessary recycling and recovery facilities for organic wastes. (19 March 2013)

^back to top 

Permitting and Licensing

Environment Agency: Guidance for developments requiring planning permission and environmental permits in Wales: this guidance explains the relationship between planning and permitting, and the respective roles and responsibilities in dealing with Welsh planning applications where an environmental permit is needed. It sets out how the EA will advise developers and operators on permitting issues as part of their planning application, in order to help them to identify potential pollution risks at an early stage, and so improve decision making, reduce costs and avoid wasted time and effort. (26 March 2013)

Environment Agency: Industrial Emissions Directive – Our approach to environmental permitting: the Environmental Permitting (England and Wales) (Amendment) Regulations 2013 (SI 2013/390), in force 27 February 2013, transpose the requirements of the Industrial Emissions Directive 2010/75 (IED). This briefing summarises how anyone seeking a permit for a new activity which is covered by the IED will be an 'industrial installation' and will need to comply with IED. All existing IPPC installations will be subject to IED from 7 January 2014. In addition, a significant number of existing activities are brought into installation permitting; for existing waste operations that will be newly subject to IED this permitting will need to be done by 7 July 2015. (27 March 2013)

^back to top 

Planning

Welsh Government: Planning for Waste – Revision to Chapter 12 of Planning Policy Wales and Technical Advice Note 21: seeks views on proposed changes to Welsh planning policy to help deliver waste infrastructure in Wales. The principal changes are: 

• revocation of the Regional Waste Plans, which are now outdated; 
• a requirement for data collection, monitoring, and annual reports, to be used as evidence to support development plans and planning decisions;  
• a requirement to keep a minimum amount of landfill capacity in each region relative to a trigger point. Hitting the trigger will result in a site search and selection process to identify suitable locations for landfill; 
• introduction of a Waste Planning Assessment (WPA) to enable waste facilities to move up the waste hierarchy.

The consultation closes on 14 June 2013. (21 March 2013)

^back to top 

Shipment of Waste

DEFRA: Improving enforcement and control of the waste exports regime: seeks views on draft Transfrontier Shipment of Waste (Amendment) Regulations 2013 that would amend and update SI 2007/1711, which supplements the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal and the EC Waste Shipment Regulation 1013/2006.  The consultation closes on 10 May 2013. The main changes are: 

• setting up the required legal gateway to allow HMRC to disclose relevant export data to competent authorities (CAs) in the UK; 
• clarifying the role of the CAs for the transit of waste and the marine area; 
• allowing the Border Force to stop and detain suspect containers should the opportunity arise; and 
• changing the fees payable for the import and export of waste into and from Northern Ireland.

(18 March 2013)

^back to top 

Waste Collection

R (UK Recyclate Ltd & 6 others) v Secretary of State for Environment, Food and Rural Affairs [2013] EWHC 425 (Admin) (Admin Ct): the seven claimants, who were all commercially involved in recycling and reprocessing, formed the Campaign for Real Recycling. They applied for judicial review of the UK's implementation of the revised Waste Framework Directive 2008/98 (WFD) insofar as it required the separate collection of certain types of waste, namely paper, metal, plastic and glass, by 2015. The claimants argued that the Waste (England and Wales) Regulations 2011 (SI 2011/988) failed to properly transpose the obligations under Art.11(1) WFD. They submitted that, as a matter of law, the UK Government could not leave the decision as to whether separate collection of the four waste streams was technically, environmentally and economically practicable (TEEP) to be determined by a local authority on the basis of particular collection circumstances, or by an agency such as the Environment Agency, but that such a determination should be a one-off decision, applicable across the whole of the UK and, certainly, throughout England and Wales, in all circumstances of collection.
The court held, dismissing the application, that: the revised WFD had been properly transposed into domestic law by the amended 2011 Regulations; the obligation to set up separate collections of paper, metal, plastic and glass from 2015 was only necessary where it was TEEP; it was correct that local authorities make decisions regarding TEEP and whether separate collections will be made in their areas, as they were uniquely placed to take into account local circumstances; and a reference to the European Court of Justice was not necessary or appropriate. (6 March 2013)
For more details, see our alert: Commingled waste collection – to stay (for now!) as the High Court finds against the Campaign for Real Recycling.
The Campaign for Real Recycling has since announced that they do not intend to appeal the decision. It is anticipated that Hickinbottom J's decision will form the basis of guidance to be issued by DEFRA that will clarify the legal obligations of local authorities in relation to the collection of dry recyclables, such as metal, paper, plastic and glass - see our further alert Certainty for the waste industry.

^back to top 

Waste Minimisation

European Commission: Public consultation on the Green Paper on Plastic Waste: seeks views on possible responses to the public policy challenges posed by plastic waste which are at present not specifically addressed in EU waste legislation. The EC has published a Green Paper that aims to gather facts and views in order to assess the impacts of plastic waste and define a European strategy to mitigate them. Stakeholders are invited to contribute their views on whether, and how, existing legislation should be adapted to deal with plastic waste and promote re-use, recycling and recovery of plastic waste. Views are also sought on the effectiveness of potential recycling targets, and of economic measures such as landfill bans, landfill taxes and pay-as-you-throw schemes. The Green Paper also asks how to improve the modular and chemical design of plastic to improve recyclability, how to reduce marine litter and whether there is a need to promote biodegradable plastics. The result will feed into further policy action in 2014 as part of a broader waste policy review, which will look in particular at the existing targets for waste recovery and landfill as well as an ex-post evaluation of five directives covering various waste streams. The consultation closes on 7 June 2013. (7 March 2013)

DEFRA: Waste prevention programme for England – Call for evidence: seeks views to support the development of a comprehensive Waste Prevention Programme for England (WPP) that takes forward a commitment in the Government Review of Waste Policy in England 2011 and fulfils a requirement of the revised Waste Framework Directive 2008/98. This Call for Evidence sets out the Government’s understanding of the available data and other insights on the current situation and barriers to reducing waste arisings in England through waste prevention, re-use and repair activities. This is a priority for DEFRA and the WPP will be published by December 2013. The consultation closes on 29 April 2013. (11 March 2013)

Welsh Government: Waste Prevention Programme: seeks views on developing a Waste Prevention Programme that will build on the policies and targets outlined in Wales’s overarching waste strategy, Towards Zero Waste. The programme proposes to help businesses become more competitive by reducing waste and cutting costs as well as setting out how people can save money and help the environment if they buy wisely and reduce the amount they throw away. The Waste Prevention Programme sets out the importance of living sustainably and outlines the benefits of reusing and repairing products or buying goods that have a longer life span. It also sets out how people can save money by supplying and buying from charity shops, car boot sales and by swapping or shopping for used items online. The consultation closes on 20 June 2013. (28 March 2013)

Welsh Government: Draft industrial and commercial sector plan: seeks views on proposals to manage and treat waste produced by Wales’s commercial and industrial sector, which is a significant contributor to Wales’s ecological footprint, producing 3.6m tonnes of waste in 2007 alone. The Industrial and Commercial Sector Plan emphasises the important role that small and medium-size businesses play in the Welsh supply chain and sets out proposed support for SMEs. (28 March 2013)

^back to top