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:

   Energy from Waste    Producer Responsibility
   Environmental Services    Recycling
   Landfill    Waste Management
   Municipal Waste    Waste Policy


Energy from Waste

DEFRA: Anaerobic digestion strategy and action plan – a commitment to increasing energy from waste through anaerobic digestion: sets out how the Government proposes to promote increased energy from waste through anaerobic digestion (AD). Key actions include guidance on the cost and benefits of AD to developers and local authorities, evidence on the value of digestates, developing skills and training for AD operators, and highlighting best practice projects that deliver community benefits. However, it stresses that the strategy does not dictate to local authorities the best method of organic waste collections - it is up to councils to decide if they wish to run a separate collection scheme for organic waste. (14 June 2011) 

Environment Agency: Energy from waste - position statement: sets out where the Agency stands on finding affordable ways of managing municipal waste that cannot be recycled, and maximising its use as a resource, and how it works with local authorities and other bodies on this issue. (30 June 2011)

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Environmental Services

Association for Public Service Excellence: State of the market survey 2011 – Local authority street cleansing services: this briefing identifies the key findings of an APSE survey into the effect of the economy on street scene services, standards of cleanliness, integrated services, and staffing. (30 May 2011)

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Landmore Ltd v Shanks Dumfries and Galloway Ltd [2011] CSOH 100 (CS): this Scottish case considered the meaning of “inert waste” in a lease of a landfill lease. The lease provided that S, the tenants, were to pay “royalty rents” to L, the landlords, for  waste, the amounts of which varied according to whether the waste was “inert waste” or “putrescible waste”. S sought a declaration that soil that was brought onto the site for capping waste cells was “inert waste”.
The Court of Session held, after considering the definition of waste in the Waste Framework Directive 2006/12 and case law on the construction of commercial contracts, that the materials fell within the natural and ordinary meaning of waste and so were “inert waste”. It was not appropriate, when considering objectively what the parties to the contract intended by the word "waste", to view this from the perspective of the potential user of material as anything, or almost anything, could be put to some use by someone. the material would at least require to undergo some process, or actually be put to some use, before its categorisation as waste would change. Nothing had happened to change its character from waste to something else before it was brought onto the premises. (16 June 2011)

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Municipal Waste

Association for Public Service Excellence: State of the market survey 2011 - Local authority refuse services: this briefing identifies the key findings of an APSE survey that included recycling activities, collection and disposal methods, charging for services, and future areas of work. (30 May 2011)

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Permitting and Licensing

Draft Environmental Permitting (England and Wales) (Amendment) Regulations 2011: these draft regulations are the final stage in amending the regulatory framework following a UK-wide review of the regulation of radioactive substances. The primary aim of the regulatory regime is to license the use and disposal of radioactive substances such that the public and the environment are protected from the effects of ionising radiation. The draft regulations, which are due to come into force on 1 October 2011, amend some of the provisions relating to the regulation of radioactive substances in SI 2010/675 in order to provide a more modern, transparent and user-friendly system for the regulation of radioactive substances which present a very low risk to people and the environment, while at the same time maintaining the necessary level of protection. They modify the situations in which permits will be required, by amending what is defined as radioactive material or waste (and hence are subject to regulation) and by consolidating and revising the existing exemptions from the requirement to hold permits.  They also transpose provisions of the IPPC Directive 2008/1 and the Water Framework Directive 2000/60 that have been inserted by the Carbon Capture and Storage Directive 2009/31. (20 June 2011)

Environment Agency: Standard rules for the Environmental Permitting Regulations – Consultation no.7: seeks views on  views on revised sets of standard rules and generic risk assessments for waste operations and installations that the Agency intends to make available under the Environmental Permitting Regulations 2010. The consultation closes on 22 July 2011. (22 June 2011)

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J Varney & Sons Waste Management Ltd v Hertfordshire CC [2011] EWCA Civ 708 (CA): V was one of the unsuccessful tenderers for the contracts for the operation of the local authority's 18 Household Waste Recycling Centres for the five year period from 2008 to 2013. V was the incumbent operator at three sites for 2003 - 2008; it tendered for the contracts to operate 17 of the sites, but was awarded none. The invitations to tender consisted of instructions for tendering, drafts of relevant documentation and the conditions of contract, the return schedules and various appendices to the new contract. The return schedules set out the standard of service expected and were used by the local authority to assess the bids as regards customer satisfaction. V submitted that the subject matters of the return schedules were criteria for the award of a public contract and under reg.30(3) of the Public Contracts Regulations 2006, the local authority had been required to identify them, together with the weightings it proposed to attach to them. The court dismissed V’s  claim for damages against the local authority for breach of its obligations under the Public Contracts Regulations 2006.
The court held, dismissing V's claim, that it was necessary to decide whether the standards applied by the local authority were criteria or sub-criteria and, if the latter, whether they had been defined in advance and whether the requirements of Ati Eac v Actv Venezia (C-331/04) (2005) ECR I-10109 (ECJ)  had been satisfied. The definition of "criterion" in the Shorter Oxford English Dictionary was not appropriate because it would mean that reg.30 required every standard by which a bid was to be evaluated, no matter how minor or subsidiary, to be disclosed, with its proposed weighting. That was impracticable and was not what EU law required. The matters referred to in the return schedules were relevant to the criteria identified in the contract notice. They had been identified in advance, in the invitation to tender. V knew that the information sought by the schedules was to be used in awarding the contracts. The judge had correctly held that the matters referred to in the return schedules were sub-criteria and that there was therefore no absolute requirement that their weightings be specified in the invitation to tender. Each tenderer had been given the same information and there had been no breach of the principles of equality and transparency. (21 June 2011)

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Producer Responsibility

Environment Agency: Operational plans for battery compliance scheme – guidance notes: battery compliance schemes (BCS) collect, treat and recycle batteries on behalf of large producers. They also register their members with the appropriate environment agency and provide the necessary data in the correct format. The operational plan sets out how the proposed BCS is going to fulfil the obligations in Sch.3 Part 2 to the Waste Batteries and Accumulators Regulations 2009. This guidance explains why a BCS operator must submit an operational plan when they apply for approval to operate as a BCS and what information it should contain. (31 May 2011)

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DEFRA: Dragon’s Den-style call for creative recycling: announces a new reward and Recognition scheme where DEFRA is providing up to £2m over the next three years to local authorities and civil society organisations to introduce or trial new schemes that reward or recognise people or communities for adopting positive behaviours towards managing their waste. Community groups, charities and local authorities can bid for a share of the first £500,000 of funding until 26 July 2011, and DEFRA will begin advising successful applicants from 16 August. (17 June 2011)

WYG Environment: Review of kerbside recycling collection schemes in the UK in 2009/10: this report presents the findings from an analysis of WasteDataFlow information, submitted to central government by local councils for the year 2009-10, that aimed to identify the top councils for collecting dry recycling, and the most improved, and see what could have driven their success. It concludes that local councils wanting to improve recycling performance and cut the rising cost of expensive waste disposal should give their residents separate wheeled bins for collecting co-mingled dry recycling and refuse, and empty them on alternate weeks. (27 June 2011)

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Waste Management

DEFRA: Responsibility Deal between Government and the waste and resource management sector: gives details of a new deal between Government and the waste industry that focuses on the Government's plans to work with the Environmental Services Association to help businesses prevent waste and recycle more of their waste. It aims to make it easier for businesses to do the right thing and save money, such as by improving recycling services for small and medium businesses and giving them better information on what they can do to prevent and deal with waste. (23 June 2011)

Milton Keynes Council v Fuller & McVeigh (Unreported) (Div Ct): McV was asked by F, a farmer, to remove waste that had been deposited on F’s field in order to clear enough space to spray his crops. McV moved the waste to the entrance of the field. F and McV were charged with unlawfully depositing waste contrary to s.33(1)(a) EPA 1990, but the magistrates’ court found them not guilty, ruling that moving the waste did not amount to a deposit for the purposes of s.33(1)(a).
The Divisional Court held, dismissing the council’s appeal, that the conclusion that someone else had already deposited the waste on F's land and that moving it did not amount to a deposit was a decision that was open to the court to make on the facts. It was not for the appeal court to devise its own definition of the word "deposit" and apply it to the facts. There might be cases where a second movement of waste could amount to a deposit but that would be for a court to determine on the individual facts of a case. (23 June 2011)

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Waste Policy

DEFRA: Government review of waste policy in England 2011: sets out the findings from the Government's comprehensive review of waste policy and delivery in England, with actions and commitments that set a clear direction towards a zero-waste economy. The stated priorities include: 

  • accelerate recycling and reducing waste creation by providing incentives for householders, recycling-on-the-go schemes, better services for businesses and voluntary responsibility deals focusing on the hospitality industry, paper, direct mail, textiles, and construction waste; 
  • abolition of bin fines and taxes, and introduction of new powers to deal with repeat fly-tipping offenders and genuine nuisance neighbours; and 
  • crack down on illegal fly-tippers, with appropriate powers to seize vehicles, and consideration of revised penalties that might include offenders clearing up items they have dumped.

The report stresses that waste services are a matter for local authorities to develop fit for purpose local solutions so there will be no mandatory return to weekly collects; instead, Government will work with authorities to increase the frequency and quality of waste collections and make it easier to recycle. It also states that the Government will remove the Landfill Allowance Trading Scheme, and will work on improving access to infrastructure financing.
The Action Plan will form the implementation plan for waste policies in this Waste Review and for the rest of this Parliament; it includes the timetable for delivery of each action. (14 June 2011)

WRAP: Business Plan 2011-15: sets out WRAP’s strategy and objectives for working in partnership towards a world without waste over the next four years. Its guiding principles continue to be a focus getting good value for money, working in partnership and supporting the work of others. (14 June 2011)
WRAP is also preparing Delivery Plans for each devolved UK administrative area.

DEFRA: Waste data overview: this statistical release provides an overview of waste and recycling data in the Construction and Demolition, Commercial and Industrial, and Local Authority Collected Waste sectors. It summarises waste and recycling statistics on total waste arisings, international comparisons, materials including food, packaging and hazardous waste, and greenhouse gas emissions from waste management. It presents the latest figures and data sources in all three areas, in line with the Government’s Waste Policy Review. (17 June 2011)

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