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:

   Contaminated Land    Procurement
   Energy from Waste    Recycling
   Environmental Impact Assessments    Wales
   Landfill    Waste Authorities
   Litter and Fly-tipping    Waste Management
   Municipal Waste


Contaminated Land

DEFRA: Changes to the contaminated land regime under Part 2A of the Environmental Protection Act 1990: seeks views on proposals on draft revised contaminated land regime statutory guidance for England and Wales. The changes clarify various aspects of the statutory guidance, particularly as it relates to the legal definition of “contaminated land”, and the broad outcomes that the regime aims to achieve. The consultation also proposes commencing s.86 of the Water Act 2003  (which amends the Part 2A definition of “contaminated land” as it relates to the significant pollution of controlled waters) and also making minor amendments to the Contaminated Land (England) Regulations 2006 and the equivalent Welsh Regulations. The consultation closes on 15 March 2011. (21 December 2010)

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Energy from Waste

DEFRA: Developing an Anaerobic Digestion (AD) framework strategy: sets out the steps needed to increase energy from waste in England through AD.  The development of a strategy for AD in the context of the waste hierarchy will feed in to work on the Waste Review, due to report in spring 2011, that will consider AD and other energy from waste technologies, as part of the Government’s overall approach to moving towards a zero-waste economy. The deadline for expressing interest in working with Government on the strategy is 12 December 2010. (1 December 2010)

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Environmental Impact Assessments

Friends of Basildon Golf Course v Basildon DC; Basildon Golf Centre Ltd (Interested Party) [2010] EWCA Civ 1432 (CA): FBGC appealed against the court’s refusal to quash the local authority’s decision to grant conditional planning permission for the development of a golf clubhouse with ancillary facilities and associated landscaping work. The local authority, which had owned and operated the land as a golf course for a number of years, entered into a lease agreement with B. B applied for full planning permission to develop the site. Some of the proposed landscaping works involved the remodelling of areas of the course and would result in waste material being deposited on it. The authority’s planning services manager produced a screening opinion which stated that the application was to be supported by a detailed ecological report including a wildlife report and mitigation strategy, and decided that an environmental impact assessment (EIA) was not required. The local authority subsequently granted permission. FBGC argued that the screening opinion had been inadequate in its understatement of the amount of waste and its treatment of ecological issues.
The court held, allowing the appeal, that the screening opinion had been legally defective in its treatment of the imported material as it had grossly understated the amount of waste that would be brought onto the site. Moreover, the impact on the local environment of large quantities of waste forming massive and extensive bunds had not been mentioned or considered in the opinion. Also, it had insufficiently analysed the relevant ecological issues. The opinion and the permission would be quashed. (14 December 2010)

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Environment Agency: Waste acceptance at landfills – guidance on waste acceptance procedures and criteria: updated guidance for waste producers, waste managers, landfill operators and Agency staff on the practical implications of the Landfill Directive on waste acceptance at landfills. It highlights some of the issues that should be considered when deciding if landfill is the best management option for waste and explains what needs to be done to comply with the waste acceptance procedures and criteria. (30 November 2010)

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Litter and Fly-tipping

DEFRA / Keep Britain Tidy: Local environmental quality survey for England 2009/10: this is the ninth annual survey that describes the ‘Cleanliness State of the Nation’. It measures and grades the condition of the streets, looking at issues that affect the public from day to day, such as litter, grime and graffiti. It also records conditions that may impact on cleansing professionals’ and landowners’ ability to cleanse to a good standard. It reveals that there have been no real improvements in litter levels, a pattern seen over recent years. Levels of smoking-related litter, confectionery packaging, non-alcoholic drink and fast food related litter have all risen in the past year. (16 December 2010)

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Municipal Waste

DEFRA: National Indicator 192 - a consultation on the classification of ‘shred and spread’: seeks views on DEFRA’s position statement issued on 12 August 2010 which clarified that “shred and spread” is not considered a recycling or composting operation and that waste collected by local authorities treated in this way should not count towards achievement of NI 192: Percentage of household waste sent for reuse, recycling and composting. It also seeks information from local authorities on the impact on their recycling and composting rates for 2010/2011 of the approach to recording green waste sent for processing to “shred and spread” on WasteDataFlow. The consultation closes on 11 February 2011. (22 December 2010)

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Lancashire CC v Environmental Waste Controls Ltd [2010] EWCA Civ 1381 (CA) : the local authority appealed against a decision that it had failed to assess properly a tender submitted by EWC, a waste management and disposal company. The assessing officer had raised concerns over EWC's financial strength and possible under-pricing of its bid, but had been told to ignore those concerns when evaluating the competing tenders. The contract was not awarded to EWC even though it met the criteria and its tender was the lowest. EWC claimed that the local authority had wrongly taken into account the concerns about its financial standing. The judge held that the officer had done his honest best to carry out the assessment independently of his concerns about EWC's financial standing, but that it would not have been possible for him to put those concerns out of his mind completely or avoid being influenced by them. The local authority argued that the judge had not been entitled to hold that its officer was influenced, albeit subconsciously, by the irrelevant consideration.
The court held, allowing the appeal, that in an appropriate case a judge could be entitled to find that the decision maker was influenced by an irrelevant consideration, even though honestly not aware of being influenced, but it was vital that the suggestion was put to him in cross-examination in the plainest terms. The officer had given evidence that he followed the advice to ignore the issue, and he had been found by the judge to be an honest witness. Moreover, it had not been put to the officer in cross-examination that he had been influenced by his concerns. In the circumstances, the judge had not been entitled to conclude that the procedure was infected by reliance on an irrelevant consideration. (7 December 2010)

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WRAP: Analysis of kerbside dry recycling performance in the UK 2008/09: this report provides an analysis of kerbside dry recycling performance for local authorities in the UK for 2008/09. It explores how the nature of the collection systems and local area characteristics influence recycling performance, and provides benchmarks against which authorities can compare themselves. WRAP has also produced There is also an online tool where authorities can compare their kerbside dry recycling performance for 2008/09 with other similar authorities. (6 December 2010) 

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Waste (Wales) Measure 2010: this Measure has received Royal Approval and comes into force on 15 February 2011, apart from s.3 (recycling, preparation for re-use and composting targets) which comes into force on a day to be appointed. The Measure introduces legally-binding targets for the amount of municipal waste councils recycle or compost from 2012-2013, with a 2024-2025 target of 70%, with penalties imposed if local authorities fail to meet these targets. This means that Wales will be able to implement statutory targets for the rates of municipal waste recycled, as set out in Wales’ waste strategy Towards Zero Waste. It also gives Welsh Ministers powers to: 

  • introduce other statutory waste targets in the future in relation to the prevention, reduction, collection, management, treatment or disposal of waste; and impose penalties for noncompliance with such targets; 
  • require retailers to donate net profits from the sale of single-use carrier bags to environmental causes if a voluntary agreement with retailers is not successful; 
  • make regulations about a fees and charging scheme for site waste management plans for the construction and demolition sector; and 
  • introduce bans or restrictions on landfilling certain materials such as food waste, plastics and metals.

(15 December 2010)

Single Use Carrier Bags Charge (Wales) Regulations 2010 (SI 2010/2880 (W.238)): these regulations, which come into force in Wales on 1 October 2011, prescribe that 5p is the minimum amount which sellers of goods must charge for single use carrier bags and provide for enforcement of that charge. (30 November 2010)

Welsh Assembly Government: Draft recycling, preparation for re-use and composting targets: seeks views from local authorities on two sets of draft regulations that define some terms for the waste targets set in the Waste (Wales) Measure 2010 and explain how the targets will be monitored and how penalties for non compliance will be applied. The consultation closes on 26 January 2011. (1 December 2010)

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Waste Authorities

Localism Bill: this Bill has been introduced into Parliament and received its 1st Reading. The Bill devolves more powers to councils and neighbourhoods and gives local communities greater control over local decisions like housing and planning. Items of particular interest to waste authorities are: 

  • it provides for a General Power of Competence that will give local authorities all the same powers that an individual generally has, and so enable them to do anything apart from that which is specifically prohibited. The Government hopes that this will encourage councils to innovate and work together with others to drive down costs and to diversify, e.g. by running new services;
  • it repeals ss.71-75 of, and Sch. 5 to, the Climate Change Act 2008 and so removes the powers for local authorities to pilot charge-and-reward waste reduction schemes (the so-called “bin tax”). Local authorities will still be free to introduce schemes which reward householders for waste reduction, under their well-being powers or the new general power of competence, as appropriate, but will no longer need to complete the processes required under the Climate Change Act 2008;
  • the Infrastructure Planning Commission will be abolished and its functions transferred to the Secretary of State;
  • changes to the Community Infrastructure Levy will require some of these funds to be passed to neighbourhoods where the development has taken place; funds can be spent on the ongoing costs of infrastructure, as well as the initial costs of new infrastructure; and local authorities will have greater control over setting their charging levels;
  • changes to Local Plans, removing the ability of the Planning Inspectorate to re-write local plans and also removing procedures on timetabling and monitoring. Local authorities will be able to suggest changes during the examination and withdraw development plan documents before their adoption, without seeking clearance from central Government;
  • Regional Strategies are to be abolished and replaced with a duty to cooperate in relation to the planning of sustainable development; 
  • voluntary and community groups, social enterprises, parish councils and local authority employees will be able to express an interest in running any service for which the authority is responsible, and the authority will then have to consider whether they can provide it better - the "Right to Challenge". However, the organisation would have to bid in a procurement exercise for that service alongside others; 
  • the Community Right to Build will give local communities the power to take forward development in their area without the need to apply for planning permission, subject to meeting certain safeguards and securing 50 per cent support of the community (reduced from an earlier proposal for 75 per cent) through a local referendum. Communities will have to identify suitable land, sources of finance and secure support for their proposals, with DCLG’s help and guidance; and 
  • it gives the Secretary of State a power to order English councils to contribute to the UK’s obligation to pay an EU fine imposed on the UK for, e.g. failure to meet recycling or waste targets or failure to comply with environmental directives. The Secretary of State is required to publish a statement of policy which will set out the general principles on how the power will be exercised and amounts determined to which a Minister must have regard. The Bill sets out the process that the Minister must follow in giving a financial sanction notice to a local or public authority.

The full text of the Bill, explanatory notes and its progress through Parliament are on the Parliamentary website. (13 December 2010)
We have issued an Authority Alert with our initial comments on the key measures contained in the Bill’s 207 clauses and 24 schedules: The Advent of Localism.
In addition, Bethan Evans & Peter Keith-Lucas will be providing training on this topic through the Local Government Group on 4 February 2011.

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Waste Management

DEFRA: Survey of Commercial and Industrial Waste Arisings 2010 – Final results: summarises the final results from the 2010 Survey, providing estimates of the amount of waste that businesses generate and how it is managed, for 2009. (16 December 2010)

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