Waste Watch – June / July 2016

Government and EU publications, legislation, cases and other developments in England and Wales relevant to those interested in waste management

01/08/2016

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 two months.

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:

   Clinical Waste    Packaging Waste
   Enforcement    Permitting and Licensing
   Environmental Policy    Recycling
   Food Waste    Waste Management
   Landfill Tax    Waste Minimisation
   Municipal Waste  

Clinical Waste

NHS England: National Framework Agreement for clinical waste services for GPs and pharmacies: NHS England has launched a new national framework agreement for the collection and disposal of clinical waste from GP surgeries and unwanted medicines from pharmacies. NHS England is responsible for funding and arranging these services on behalf of GPs and pharmacies. This new approach will deliver a number of benefits including improved quality standards, consistency, better management of contracts and value for money. Following a procurement process, five suppliers have been chosen. See also the Clinical Waste factsheet that provides some more information about the Framework, the benefits and how to find out more. (1 June 2016)

Care Quality Commission: Health care waste: advice to GP practices on the management of clinical waste, summarising framework set out in Healthcare Technical Memorandum (HTM) 07-01 Safe Management of Healthcare Waste. (8 July 2016)

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Enforcement

London Councils: London Councils supports highest fly tipping fine: London boroughs (as waste collection authorities) can now introduce new fixed penalty notices for fly tipping, under s.33 of the Environmental Protection Act 1990. It is for boroughs to decide whether to use the penalties. London Councils’ Transport and Environment Committee supports all London boroughs that are keen to crack down on illegally dumped rubbish and is in favour of setting newly-introduced fixed penalty notices for fly tipping at £400, the upper limit agreed by central government. (7 July 2016)

Environment Agency: Leeds businessman receives record jail sentence over £2.2m recycling fraud: reports that Leeds Crown Court has sentenced a waste operator to seven years and six months' imprisonment for defrauding the electrical waste recycling industry out of £2.2m. The court also disqualified the defendant from acting as a company director for 12 years. (18 July 2016)

Environment Agency: Dorset man narrowly escapes prison for running illegal waste oil site: reports that Taunton Crown Court has sentenced a rogue waste operator to four months' imprisonment suspended for 18 months, ordered him to carry out 200 hours unpaid community work, and made him the subject of a Criminal Behaviour Order prohibiting him from operating a waste oil or any other waste business for 10 years, after he pleaded guilty to two offences of keeping controlled waste in a manner likely to cause pollution or harm human health and failing to comply with seven anti-pollution notices. This followed an investigation which found that the defendant was illegally depositing, storing and processing  waste vegetable oil; the site was also being used for the illegal production of bio-diesel fuel. (19 July 2016)

Environment Agency: Man jailed for running illegal waste site: Peterlee Magistrates’ Court has sentenced a man to 16 weeks' imprisonment after he pleaded guilty to operating a waste facility without a permit. He was also sentenced to eight weeks in prison, to run concurrently, for breaching a suspended prison sentence relating to the same offence.  (27 July 2016)

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Environmental Policy

PM's Office, 10 Downing Street: New ministerial appointment July 2016 – Secretary of State for Environment, Food and Rural Affairs: announces that Andrea Leadsom has been appointed as the new Secretary of State for Environment, Food and Rural Affairs, replacing Liz Truss.
Thérèse Coffey has been appointed Parliamentary Under Secretary of State for the Environment and Rural Life Opportunities, with responsibility for waste management. (14 July 2016)

UK Environmental Protection (Maintenance of EU Standards) Bill 2016-17: this Private Member's Bill has been introduced into the Commons by Geraint Davies MP and received its 1st Reading. The Bill provides for the safeguarding of standards of environmental protection derived from EU legislation, including for water, air, soil, flood protection and climate change, after the withdrawal of the UK from the EU. (13 July 2016)

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Food Waste

HC Environment, Food and Rural Affairs Committee: Food waste in England inquiry: the EFRA Committee has launched an inquiry into the economic, social, and environmental impact of food waste in England, with a focus on consumers, the retail and hospitality sectors, and local government. In particular, the Committee will ask how far voluntary initiatives can further reduce food waste or if legislation is required in this area. (11 July 2016)

World Resources Institute: First-ever global standard to measure food loss and waste introduced by international partnership: announces the launch of a new international framework to empower businesses, governments, and other organisations to measure, report on and manage food loss and waste. The Food Loss and Waste (FLW) Accounting and Reporting Standard is the first-ever set of global definitions and reporting requirements for companies, countries and others to consistently and credibly measure, report on and manage food loss and waste. The standard comes as a growing number of governments, companies and other entities are making commitments to reduce food loss and waste. (6 June 2016)

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Landfill Tax

HMRC: Landfill Tax – Improving clarity and certainty for taxpayers: seeks views on proposals to amend the definition of a taxable disposal of waste at a landfill site, with the aim of clarifying the scope of the tax. It proposes to amend the criteria for determining when Landfill Tax is due so that all material disposed of at a permitted landfill site is taxable, subject to certain exceptions. A set of narrowly defined exceptions will be included, consistent with the activities that are not currently taxable. HMRC is also calling for information and views on the limited circumstances where hazardous waste falls within the scope of the Landfill Tax (Qualifying Material) Order 2011. The consultation closes on 18 August 2016. (26 May 2016)

R (Biffa Waste Services Ltd) v HM Revenue and Customs [2016] EWHC 1444 (Admin) (Admin Ct): BWS, landfill site operators, applied for judicial review of HMRC's decision that material used in the construction of a "regulation layer"  was subject to landfill tax (LFT). This regulation layer was the layer above the final layer of soft waste placed below the cap used to seal the containment system which housed the waste material disposed of within the cell. BWS contended that the decision was contrary to a 2009 HMRC Ruling that the regulation layer was not subject to LFT. HMRC argued that the Ruling was confined to a single landfill site and could not reasonably be relied upon by BWS in respect of any other landfill site that it operated.
The court held, granting BWS's application, that the Ruling was not limited to a particular site, but was a general statement by HMRC, albeit in the context of one site, as to the meaning and effect of the relevant legislation that could legitimately be relied on in respect of a regulation layer at any landfill site. The disclosed documents utterly undermined any contention that HMRC intended to make a Ruling that was exclusively site specific. The issue of the correct tax treatment of the regulation layer was considered at a senior policy level within HMRC and an assessment was made, as a matter of general principle and application, of the correct tax treatment of the regulation layer, a concept well understood both locally and centrally within HMRC. It was deeply unattractive for HMRC to advance a case, based upon incomplete material known to the taxpayer, that a particular representation should be given a very narrow scope, when HMRC had in its possession further significant documents that showed that no such narrow scope was intended at the time by HMRC. A public authority that had the heavy responsibilities that are borne by HMRC, could not, without infringing the principle of conspicuous unfairness, put forward as the true meaning of a particular representation an interpretation that was wholly inconsistent with what the public authority at the time intended should be the effect of that representation in question. Such conduct might be acceptable in the sphere of private contract; in public law it was simply offensive to justice and unlawful. (23 June 2016)

R (Veolia ES Landfill Ltd) v HM Revenue & Customs [2016] EWHC 1880 (Admin) (Admin Ct): two waste management companies, V, which operated a number of landfill sites, applied for judicial review of HMRC's decision to reverse its policy regarding payment of landfill tax on materials used to line landfill cells ("fluff"). Following the decision in Waste Recycling Group Ltd v HMRC [2008] EWCA Civ 849 that material put to use on a landfill site was not taxable, HMRC invited claims for repayment of landfill tax which fell within given examples of such use. V submitted repayment claims and in 2009 HMRC decided that base and side fluff claims were in principle well founded, and proceeded to process such claims. However, in 2014 HMRC announced that it would make no further payment of base and side fluff claims, although it would not seek to reclaim any payments that had been made. V contended that the reversal of the decision to pay out on fluff claims was a breach of their legitimate expectations and an abuse of power.
The court held, dismissing the application, that there was a clear and unambiguous representation, and no breach of the cards face up principle, which would give rise to a legitimate expectation of the type the law would prima facie protect. It followed that, subject to one subtlety, V had each established a legitimate expectation of being repaid. The subtlety was that the phrase "legitimate expectation", although a very familiar one, contained within it what was not an entirely easy question, namely what it meant to say that an expectation was legitimate. One could say that for an expectation to be legitimate, it must be reasonable; and that in circumstances like the present case, it was not reasonable unless both the relevant guidance or ruling was clear, unambiguous and devoid of relevant qualification, and there has been no failure by the taxpayer to put their cards on the table, but it was unclear what more, if anything, was required.
The remaining question was whether the decision to stop paying fluff claims even to those who had been led to believe that their claims would be paid was a proportionate response; that would be answered by asking whether the decision was conspicuously unfair, so unfair as to amount to an abuse of power. This had to be considered not by reference to the industry as a whole but by reference to the impact on the individual taxpayers before the court, focusing on whether it was conspicuously unfair to defeat their expectations given their individual circumstances. The mere fact of HMRC raising a taxpayer's hopes by telling it that it was due a refund, and then dashing them by telling it that on further consideration no refund was due, was bound to cause the taxpayer disappointment but was not in itself necessarily productive of unfairness. The court should have a degree of reticence before castigating as conspicuously or substantially unfair the decision of the Commissioners in weighing up what were essentially incommensurable matters, namely the public interest on the one hand against the potential unfairness to individual taxpayers; and on the facts of this case the Commissioners' decision was not so unfair to V as to fall into that category. (25 July 2016)

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Municipal Waste

WRAP Cymru: Compositional analysis of municipal waste in Wales: this analysis shows that out of the 1.55m tonnes of MSW collected in 2014/15, 856,000 tonnes were collected for recycling either on the kerbside or via other types of collection. This has improved substantially since the last analysis in 2009. However, there are considerable amounts of recyclable material still present within the municipal waste stream. It estimates that if just half of all the food and dry recyclables found in Wales’ bins were recycled, Wales would reach its statutory 2025 recycling target of 70 per cent nine years early. (14 June 2016)

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Packaging Waste

CIWM: Packaging waste recovery – A European comparison: this report examines the UK’s market based approach to packaging waste recovery compared three other European Member States: Republic of Ireland, Germany and Denmark. Almost 20 years after initial implementation, the study considers how well the system operates alongside the wider aims of a more resource efficient, circular economy. The study highlights a number of considerations which could be factored into the UK’s thinking in the event of a fundamental review of the Producer Responsibility Obligations (Packaging Waste) Regulations. (12 July 2016)

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Permitting and Licensing

DEFRA / Environment Agency: Pollution prevention for businesses: overview guide for businesses and organisations on what they should do at work to avoid pollution incidents, including the permissions they need to dispose of waste. (12 July 2016)

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Recycling

Welsh Government: Recycling gets a £5.75m boost: announces £5.75m under the Collaborative Change Programme (CCP). The funding will allow local authorities to invest in equipment such as recycling vehicles, make improvements to collections and depot facilities and enable them to improve their rates of recycling. (15 July 2016)

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Waste Management

Waste (Meaning of Recovery) (Miscellaneous Amendments) Regulations 2016 (SI 2016/738): these regulations, which come into force on 3 August 2016, amend various enactments which define waste “recovery” by reference to the Waste Framework Directive 2008/98 (WFD). The amendments update these references to reflect the amendment made to Annex II to the WFD by Commission Directive 2015/1127. (12 July 2016)
See also the Waste (Meaning of Recovery) (Miscellaneous Amendments) (Wales) Regulations 2016 (SI 2016/691 (W.189)), which make equivalent amendments to Welsh legislation.

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Waste Minimisation

DEFRA: Single-use plastic carrier bags charge – Data in England for 2015 to 2016: summarises the data on single-use plastic carrier bags for the half year from 5 October 2015 to 6 April 2016, the first reporting period since the introduction of the 5p charge on single-use plastic carrier bags sold by large retailers. The data shows that 6bn fewer bags were used in that period than were used in the whole of the previous year.
See also the updated policy paper Carrier bags: why there's a charge. (30 July 2016)

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