Waste Watch – April 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 waste management, which have been published inApril 2013.

02/05/2013

Nadeem Arshad

Nadeem Arshad

Partner

This Update contains brief details of Government and EU publications, legislation, cases and other developments in England and Wales relevant to those interested in 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    Permitting and Licensing
   Environmental Liability    Producer Responsibility
   Infrastructure    Waste Management
   Judicial Review    Waste Minimisation

 

Contaminated Land

Environment Agency: Contaminated Land Capital Grants guidance note for 2013/14: guidance note for local authorities who want to apply for funding for contaminated land site investigation or remediation work under the capital projects funding programme. It explains how to apply for a contaminated land grant under s.31 LGA 2003 and how the Agency will assess and prioritise bids. It also covers how it will pay grant to successful schemes.
The Agency is inviting local authorities to bid for capital grants. The Agency’s budget for 2013/14 is an initial £2m, with the potential for increase if departmental underspends become available. It will set aside a proportion of this as a 'contingency pot' which project managers can bid into on a first come first served basis if they find they need contingency funding. The closing date for applications is 17 May 2013. (5 April 2013)

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Environmental Liability

Sentencing Council for England and Wales: Environmental offences guideline for sentencing: seeks views on draft guidelines for fly-tipping and other environmental offences, looking at: the principal factors that make an environmental offence more or less serious; the additional factors that should influence the sentence; and the sentences that should be given for environmental offences. The draft guidance follows concerns that the levels of fines for environmental offences were not high enough and so neither reflected the seriousness of the offences nor deterred offenders. Concerns were also raised about inconsistency in fine levels. The consultation closes on 6 June 2013. (14 March 2013)

Willis v Derwentside DC [2013] EWHC 738 (Ch) (Ch D): W brought a claim against the former local authority (now part of Durham Council) for damages in nuisance and negligence arising from the escape of CO2 from disused mine workings on land adjacent to their house. That land had been transferred to the Council by the National Coal Board (NCB), subject to the Council undertaking to keep the NCB indemnified against any liability and expense in any way related to the shafts and drifts or their fillings which had not been occasioned by any mining operations. W contended that  the Council’s delay dealing with the discovery of escaping CO2 while arguing with the NCB over liability caused W unreasonable disruption, distress and inconvenience until the remedial works were completed. They also claimed that the Council’s refusal to reveal or explain the nature and causes of the gas emissions, or the thinking behind the design of the remedial scheme, led them to incur substantial expense in the appointment of their own mining expert to advise them, and that the Council’s failure to obtain a certificate of the due completion of the remedial scheme, or to conduct monitoring or maintenance of the remedial works in accordance with the NCB’s recommendations, meant that their house was unmortgageable and unsellable, resulting in a loss of its capital value of £200,000.
The court held that the Council came under an obligation to remedy the gas escape from April 2006, when it was notified by the NCB of the risks of gas emission from the mine workings. Although none of the gas afflicting the property was generated on the Council's adjoining land, all of it passed across it from mine workings. There was nothing special in the emission of gas through an underground pipe on to a neighbour's land which set it apart from the emission of gas at ground level from an opening inside the Council's own land. Both the mouth of the drift and the underground drain were routes by which a potentially harmful gas was escaping from the Council's land on to the W’s property and once discovered, both of them gave rise to an abatement duty on the part of the Council. The Council had refused to disclose the reports and analyses being undertaken during the design and execution of the remedial works, on advice from its legal department, apparently due to a perception that information relevant to the potential liability to the Council both to W and to the NCB should be kept confidential. The Council was liable to reimburse W for their expenditure on their mining expert – reasonable steps to abate a potentially dangerous and frightening nuisance of this type included keeping W informed of the Council's developing understanding of the cause of the problem, together with the analysis and design of the remedial works being carried out by the NCB on behalf of the Council. W were not provided with that information, and their expenditure on the obtaining of advice about those matters from the expert was a reasonable mitigation of their loss, for which they should be reimbursed.
The Council’s response to the nuisance constituted by gas emissions onto the property in the form of commissioning and paying for a remedial scheme, but without either obtaining a certificate of its satisfactory completion, or committing to its monitoring and maintenance, fell short of the taking of reasonable steps to abate the nuisance. The property was unsellable and unmortgageable because of the absence of a certificate of the satisfactory completion of the remedial works and the existence of a dispute about their adequacy, if not satisfactorily monitored and maintained in accordance with the NCB’s recommendations. The court would not grant or refuse an award in damages for the diminution in value of W’s house where there was an alternative remedy of certification, monitoring and maintenance of the works which represented a fairer, cheaper and more satisfactory solution. Therefore the case would be adjourned for further argument on the question whether any further remedy in respect of the abatement of the nuisance was required, pending the provision of a certificate of satisfactory completion of the works and the giving of an appropriate undertaking as to their monitoring and maintenance. (10 April 2013)

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Infrastructure

HM Treasury: Drax Biomass backed by UK Guarantee: announces that Drax Group Plc’s private funding for the conversion of their coal-fired power station to biomass will be the first to be underpinned by a UK Guarantee. The Government’s UK Guarantees Scheme was launched last year to provide up to £40bn of guarantees to kick start infrastructure projects struggling to access finance. The Scheme works by providing a sovereign-backed guarantee to help infrastructure projects raise debt finance by removing project risk. (24 April 2013)

DCLG: Planning Act 2008 – Associated development applications for major infrastructure projects: this guidance is designed to help those who intend to make an application for development consent under the 2008 Act to determine how the provisions in respect of associated development apply to their proposals. It has been amended to take account of the Localism Act 2011 amendments, and to provide clarity on what constitutes associated development. It also includes two annexes with examples of the type of development that may qualify as associated development. (26 April 2013)

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Judicial Review

MoJ: Reform of judicial review – The Government response: in December 2012, MoJ launched a consultation on proposals to reform judicial review procedures. MoJ stated that the aim of the proposals was to tackle delays and reduce the burden of judicial review by filtering out weak, frivolous and unmeritorious cases at an early stage, while ensuring that arguable claims can proceed to a conclusion without delay. This response sets out how the Government will now proceed with the reforms, in light of comments received. The changes include:  

  • reducing time limits for bringing a claim from three months to six weeks in planning cases and 30 days for procurement cases;  
  • introducing a new fee of £215 for an oral renewal hearing, where the claimant does not accept a refusal of permission on the papers, and asks for the decision to be reconsidered at a hearing (an "oral renewal"); and  
  • removing the right to an oral renewal where the case is assessed as totally without merit on the papers.

The changes complement separate proposals being considered which would also see the fee for a judicial review application increase from £60 to £235. Court Rules will now be put in place to implement the changes, which are expected to take effect this summer. (23 April 2013)

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Permitting and Licensing

Environment Agency: Environmental Permitting (EP) Charges Scheme & guidance 2013/14: guide to the EA’s charges under the EP Charging Scheme effective from 1 April 2013. It covers the different types of operations that require a permit under the Environmental Permitting Regulations as well as various other charges. It explains the scheme and what charges have to be paid. It is designed to help both charge payers and the EA’s own staff and should be read in conjunction with the scheme itself. (2 April 2013)

Environmental Permitting (England and Wales) (Amendment) (No. 2) Regulations 2013 (SI 2013/766): these regulations, which come into force on 26 April 2013, amend the Environmental Permitting (England and Wales) Regulations 2010 (SI 2010/675) so as to enable take up of the derogation from the prohibition on the landfill of liquid waste in the case of metallic mercury which is allowed for by Regulation 1102/2008; it also implements the requirements of Directive 2011/97 amending the Landfill Directive 1999/31, thereby allowing the storage of liquid metallic mercury waste for more than 12 months, provided other relevant requirements are complied with. (2 April 2013)

Environment Agency: Understanding the meaning of regulated facility (RGN no.2): this regulatory guidance note gives a high level summary of the facilities that the Agency regulates under the Environmental Permitting (England and Wales) Regulations 2010. It aims to help staff and customers decide if an activity is a regulated facility and therefore needs a permit. (10 April 2013)

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Producer Responsibility

DBIS: Implementation of the WEEE Recast Directive 2012/19/EU and changes to the UK WEEE system: seeks views on revised WEEE Regulations that are expected to come into force from 1 January 2014, and changes to the UK system for WEEE collection, treatment recovery, recycling and re-use. It discusses achieving the higher WEEE collection targets, the widening of the scope that will bring more items within the ambit of the regulations and the policy of Individual Producer Responsibility (IPR). It also sets out proposals for improvements to the UK WEEE system as a result of the findings of the Environmental Theme of the Government’s Red Tape Challenge, with four options relating to the system for the collection and financing of WEEE arising from households. The consultation closes on 21 June 2013. (17 April 2013)

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Waste Management

Scottish Government: Guidance on applying the waste hierarchy: provides guidance on the discharge of the duty under s.34 EPA 1990 to take all reasonable measures available to apply the waste hierarchy set out in Article 4(1) of the Waste Directive. It also sets out the circumstances in which the duty may be departed from. (25 April 2013)

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Waste Minimisation

WRAP: Zero waste events – Achieving success: WRAP has launched a new event industry initiative with the goal of no waste being sent to landfill from UK events by the end of the decade. It includes an Events Industry Roadmap that has been developed by WRAP working with the events industry as part of its work on the European Pathway to Zero Waste project (EPOW). The roadmap draws on lessons learned from the London 2012 Olympic and Paralympic Games, creating a series of steps that events and the industry can take to achieve sustainable events. There is also a Zero Waste Events portal that links to all the resources. (5 March 2013)

WRAP: Consumer attitudes to food waste and food packaging: presents the findings from a qualitative and quantitative investigation into consumer attitudes to, and behaviour around, food waste and food packaging, to inform action to help further reduce household food waste. (5 March 2013)

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