Waste Watch – March 2015

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 March 2015.

31/03/2015

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:

   Charging    Producer Responsibility
   Enforcement    Recycling
   Environmental Liability    Sustainability
   Health and Safety    Waste Collection
   Landfill    Waste Infrastructure
   Litter and Fly-tipping    Waste Management
   Procurement    Waste Minimisation

Charging

Local Government (Prohibition of Charges at Household Waste Recycling Centres) (England) Order 2015 (SI 2015/619): this Order, which come into force on 6 April 2015, prohibits "best value authorities" in England from using their powers under s.93(1) of the Local Government Act 2003 to charge residents to enter into or exit from household waste recycling centres, or to deposit household waste or recycling at such centres.
See also DCLG's response to the January 2015 consultation on "Preventing ‘backdoor’ charging at household waste recycling centres". (12 March 2015)

Local Authorities (Prohibition of Charging Residents to Deposit Household Waste) Order 2015 (SI 2015/973): this Order, which comes into force on 23 April 2015, prohibits local authorities from using their General Power of Competence under s.1 of the Localism Act 2011 to charge their residents to enter into or exit from household waste recycling centres, or to deposit household waste or recycling at such centres. (26 March 2015)

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Enforcement

Control of Waste (Dealing with Seized Property) (England and Wales) Regulations 2015 (SI 2015/426): these regulations, which come into force on 6 April 2015, establish the procedures which a waste collection authority, the Environment Agency and Natural Resources Wales must follow once they have seized a vehicle and/or its contents under either s.5 of the Control of Pollution (Amendment) Act 1989 or s.34B of the Environmental Protection Act 1990 because of suspected involvement in offences concerning the transport or disposal of waste (such as fly-tipping). It sets out what an authority must do to ensure the safe custody and determine the rightful owner of any seized vehicle or other property. It also sets out when the authority must return the property to its owner and the circumstances in which it can sell, destroy or otherwise dispose of the property. (5 March 2015)

Household Waste (Fixed Penalty and Penalty Charge) Regulations 2015 (SI 2015/969): under changes made to the Environmental Protection Act 1990 and the London Local Authorities Act 2007 (LLAA) by the Deregulation Act 2015, waste collection authorities and London borough councils can impose a monetary penalty on any person who fails to comply with a requirement imposed under those Acts related to the collection of household waste where that failure causes a nuisance or is detrimental to any amenities of the locality. These regulations, which come into force on 15 June 2015, set the levels of the monetary penalty that may be imposed at between £60 and £80. They also provide that, where a WCA or an LBC makes provision for treating a penalty as having been paid if a lesser amount is paid before the end of a specified period, that amount must not be less than £40. The regulations also modify SI 2007/3842 to enable appeals against a decision to impose a penalty charge under LLAA to be made to an adjudicator. (27 March 2015)

Deregulation Act 2015: this Act has received Royal Assent. It contains a range of measures in line with the Government’s aim to reduce burdens on businesses and public authorities. Its provisions include:

  • replacing the current criminal sanctions under s.46 EPA 1990 for non-compliance with local authority requirements for collection of household waste, with a new fixed penalty scheme;
  • imposing a statutory duty on specified non-economic regulators to "have regard to the desirability of promoting economic growth"; and
  • repealing Part 11 of the Local Government and Public Involvement in Health Act 2007 that enables the Secretary of State to create Joint Waste Authorities at the request of the relevant local authorities.

(26 March 2015)

R v Jagger [2015] EWCA Crim 348 (CA): J appealed against his conviction for depositing controlled waste without a permit, contrary to s.33(1)(a) EPA 1990. J acknowledged that he had deposited material collected from a building site into a void on another site that had been created during demolition work; however, he contended that the material did not constitute controlled waste at the time of the deposit. He submitted that the judge's definition of "waste" and "controlled waste" was too restrictive and his direction to the jury as to the test to be applied in considering whether the material had the status of waste at the time of its deposit was defective.
The court held, allowing the appeal, that this was not a straightforward area of the law, and the question of what was waste at any given time was not clear-cut. The judge had stated that material remained controlled waste unless something happened to alter that, but he did not then go on to assist the jury in any way by indicating to them factors which might have had a bearing on the question of whether such alteration had taken place. Also, the judge had referred to the possibility that material was not controlled waste if it had been acceptably recovered or disposed of. Again there was no reference to what that might mean in the context of this case and it was far from self-evident what that phrase meant. As a result of his understandable desire to keep the case simple for the jury, the judge had oversimplified his directions to the detriment of J's case. The effect was unduly to restrict the jury's consideration of valid arguments available to J on the question of waste so that he was deprived of fair consideration by the jury of a significant issue. (19 February 2015)

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Environmental Liability

Environmental Damage (Prevention and Remediation) (England) Regulations 2015 (SI 2015/810): these regulations, which come into force on 19 July 2015, revoke and consolidate the Environmental Damage (Prevention and Remediation) Regulations 2009 (SI 2009/153) and amending instruments, which transposed the Environmental Liability Directive 2004/35. The Directive's objective is to make operators of activities which cause environmental damage financially liable for that damage (the ‘polluter pays’ principle). The consolidated regulations apply to serious environmental damage to land, water and to species and habitats. They cover both species and habitats protected by the Birds and Habitats Directives and any other species and habitats protected on SSSIs. They impose duties on operators of economic activities to take immediate steps to prevent damage if there is an imminent threat, and to control damage which is occurring so as to limit its effects. Once environmental damage has occurred, the regulations contain procedures for establishing appropriate remedial measures. The key changes made following responses to the consultation include: adjusting the regulations to provide greater clarity as to the roles of the respective enforcing authorities, underpinned by a proposed revision to the existing Memorandum of Understanding between the bodies; and a proposal to clarify, in guidance, the definition of “operator” to take account of offshore oil and gas operators and licensees.
See also DEFRA's Revised Transposition Note for the implementation of Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage that explains how the new regulations meet the requirements of the Directive. (23 March 2015)

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Health and Safety

HSE: Waste company in court over worker’s death: St Albans Crown Court has ordered waste management company FCC Waste Services (UK) Ltd to pay a total of £265,000 for safety failings after a worker was killed when he was struck by a vehicle at a Watford waste transfer station. An investigation found the company failed to organise and control the workplace to ensure that pedestrians and vehicles could circulate and operate safely. The company was fined a total of £200,000 and ordered to pay costs of £65,000 after pleading guilty to breaching reg.4(1) and reg.17(1) of the Workplace (Health, Safety and Welfare) Regulations 1992 and to breaching reg.5(1) of the Management of Health & Safety at Work Regulations 1999. (16 March 2015)

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Landfill

HMRC: Reform of the Landfill Communities Fund: seeks views on proposals for reform of the LCF that provides money to environmental bodies for a variety of projects which comply with the objectives of the scheme. Landfill operators can claim a credit of up to 5.1% (in 2014-15) against their Landfill Tax liability on 90% of the voluntary contributions they make to environmental bodies. The Government announced at Autumn Statement 2014 that it would set up a working group to develop proposals to reform the LCF. This consultation sets out the proposals developed by the working group and seeks views on the impact and workability of these proposals to help determine the final shape of reform of the LCF. The consultation closes on 10 June 2015. (18 March 2015)
The Chancellor announced in Budget 2015 that the saving from the LCF will be used to fund a one-off £4.2m increase in Environment Agency funding to address waste crime.

HMRC: Excise Note LFT1 – A  general guide to Landfill Tax: updated general guide to Landfill Tax which is a tax on the disposal of waste to landfill. As such, it encourages efforts to minimise the amount of waste produced and the use of non-landfill waste management options, which might include recycling, composting and recovery. The Notice cancels and replaces Notice LFT1 (July 2013) from 6 April 2015. (27 March 2015)

Landfill Tax (Amendment) Regulations 2015 (SI 2015/744): these regulations, which come into force on 1 April 2015,  vary the maximum amount of credit which a landfill site operator may claim against its annual landfill tax liability when making contributions in respect of the Landfill Communities Fund, from 5.1% of its landfill tax liability in a contribution year to 5.7%. (18 March 2015)

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Litter and Fly-tipping

HC Communities and Local Government Committee: Litter and fly-tipping in England: This report finds that litter levels in England have barely improved over the last 12 years, hitting the tax-payer with an annual bill of as much as £850m in clean-up costs. It examines trends in litter and fly-tipping and looks at some of the most frequently littered items (cigarettes, chewing gum and fast-food packaging) and how to tackle these. It reviews the current legislation on litter and fly-tipping, looks at keeping roads and highways free from litter and discusses a strategy for change. The Committee is clear that change is needed and that individuals, Government, and tobacco, chewing gum and fast food industries must now act to tackle the nation’s litter problem. The Committee comments that the current division of responsibility between DEFRA and DCLG is often unhelpful, and there is little leadership or coordination of the excellent work of authorities and volunteers. It recommends that the Government creates a national litter strategy for England, with a clear framework for action, underpinned with a coordinating role for local authorities within their respective areas. (14 March 2015)

DEFRA: Litter and refuse – Council responsibilities to keep land clear: this guidance explains how local authorities should deal with litter, refuse, dog mess and fly-tipping, and the penalties they can give. Litter authorities should also consider the Code of Practice on Litter and Refuse about how to keep land clear of litter according to the type of land it is. (23 March 2015)

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Procurement

DCLG: Household waste collection – Procurement savings opportunities: this report, developed with Local Partnerships, demonstrates how local authorities can make savings by joining up their procurement processes where waste management goods are concerned. The report collates findings from a short study of both the public and private sectors and information from experts in this field. It finds that savings of up to 10% on vehicles and 35% on wheeled bins can be achieved through clearer specification and procuring in larger volumes in partnership with other councils. It estimates that the scale of these opportunities total over £70m per year. The report and case study examples provide options for overcoming some of the perceived challenges facing local authorities in procuring waste management goods (wheeled bins and refuse collection vehicles) more effectively. (29 March 2015)

Bevan Brittan byte size procurement updates: we have published a further four articles in our "byte size" legal updates, in which we look at the new Public Sector Directive and implementing Regulations and deconstruct them into a topic based approach. For each topic we provide a brief explanation of the provisions in the new Directive. We also highlight some of their practical implications. They cover:

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Producer Responsibility

Environment Agency: Waste electrical and electronic equipment (WEEE) – Evidence and national protocols guidance: updated guidance for WEEE Producer Compliance Schemes, Approved Authorised Treatment Facilities and Approved Exporters on how to issue evidence, meet recovery and recycling targets and apply protocols on WEEE. There is also a Recovery and recycling targets flow chart. (18 March 2015)

DEFRA: Consultation on changes to the Producer Responsibility regimes for batteries and packaging: seeks views on proposals to amend the producer responsibility regimes for batteries and packaging across the UK, so as to reduce red tape for businesses. It also seeks evidence to help underpin a review of the waste plastic  packaging target, and to support the Government’s analysis with WRAP and other partners to consider what further actions can be taken to ensure that the household waste recycling target is met. The consultation closes on 27 May 2015. (27 March 2015)

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Recycling

DCLG: Recycling Reward Scheme – Successful bids: provides a list of the successful bidders for the Recycling Reward Scheme 2015 to 2016, which helps local authorities encourage households to increase recycling rates. There is also a set of frequently asked questions to support both successful and unsuccessful bidders. (16 March 2015)

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Sustainability

Well-being of Future Generations (Wales) Bill: this Bill has been passed by the National Assembly and is now in the four week period of intimation prior to being submitted for Royal Assent. The Bill provides for a set of long-term well-being goals for Wales; these include:

  • a prosperous Wales: an innovative, productive and low carbon society which recognises the limits of the global environment and therefore uses resources efficiently and proportionately;
  • a resilient Wales: a nation which maintains and enhances a biodiverse natural environment with healthy functioning ecosystems that support social, economic and ecological resilience and the capacity to adapt to change; and
  • a globally responsible Wales: a nation which, when doing anything to improve the economic, social, environmental and cultural well-being of Wales, takes account of whether doing such a thing may make a positive contribution to global well-being.

It places a duty on Welsh local authorities and other specified public bodies to explain every year the progress they have made toward achieving their well-being objectives, which must contribute to the well-being goals for Wales. It will also require these bodies to state how they propose to govern themselves and ensure that resources are allocated annually to fulfil the duty. (17 March 2015)

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Waste Collection

WRAP: Dry recyclables – Improving quality, cutting contamination: this guide highlights useful information for local authorities on why contamination in dry recycling is a problem and why it might occur. It offers practical tips on how to assess the scale of the issue in their area and then sets out a variety of ways to tackle the problem. (24 March 2015) 

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Waste Infrastructure

DCLG: Planning Act 2008 – Guidance on the pre-application process: the Planning Act 2008 created a new development consent regime for nationally significant infrastructure projects in the fields of energy, transport, water, waste water, and waste – "major infrastructure projects". This revised guidance sets out the necessary requirements and procedures and gives clarity on the scope and scale of the consultation required at the pre-application stage. It covers all the main processes required by an applicant prior to the submission of an application, including the pre-application consultation, Environmental Impact Assessment, Habitats Regulations Assessments, and advice on drafting a Development Consent Order. It has been updated to include a new final section relating to the publication of applications. (26 March 2015)

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Waste Management

WRAP: Re-use how to guides: WRAP has published a series of step-by-step guides aimed at encouraging more partnerships between local authorities, waste management companies and third sector organisations. WRAP’s work on initiating action plans has found that partnerships are fundamental to success in establishing more re-use. To help others achieve the same, the new case studies show just what can be achieved through partnership working. (24 February 2015)

Environment Agency: Fire prevention plans: guidance on storing combustible waste at permitted sites. It sets out the fire prevention standards that must be followed. (20 March 2015)

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Waste Minimisation

Friends of the Earth Europe: Preventing Waste – Recycling isn't enough for a circular economy: this briefing documents a series of community-led projects that are helping Europe to reduce its resource use and waste, and makes policy recommendations that would enable these best practices to become the norm. It outlines ways in which recycling has been boosted, consumption lowered and products repaired instead of being scrapped. The case studies show that it is often local, under-resourced communities, guided by principles of sustainability, that are at the forefront of improving resource use and waste prevention. The report argues that EU policy needs to take the waste hierarchy into account when writing new policies. This means designing polices that first prevent waste, then which prepare products for reuse, then which repair them – leaving recycling, recovery of materials, and finally landfill, as last resorts. (9 March 2015)

Single Use Carrier Bags Charges (England) Order 2015 (SI 2015/776): this Order, which comes into force on 5 October 2015, requires retailers with 250 or more employees to charge a minimum amount of 5p for unused single use (lightweight) plastic bags used for taking goods out of shops or for delivering them. The charge is to be enforced by local authority trading standards officers, with two types of civil sanctions: Fixed Monetary Penalties or Discretionary Requirements. They also have duties to publish reports and guidance about enforcement action . The Order ceases to have effect on 5 October 2022. (19 March 2015) 

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