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:

    European Law     Recycling
    Food Waste     Waste Collection
    Infrastructure Planning     Waste Management
    Municipal Waste       Waste Minimisation
    Packaging Waste       Waste Policy

European Law

Bar Council: The Brexit papers – Paper 22: Environmental Law: this forms part of part of The Brexit Papers: Third Edition, that set out in plain English the key legal challenges the Government will face on a range of policy issues. It highlights the particular risks of Brexit for environmental law and puts forward some recommendations, both long-term and for transitional arrangements. (23 June 2017)

UKELA: Brexit and environmental law – Enforcement and political accountability issues: this report highlights the danger of undermining environmental law after Brexit if enforcement and accountability gaps are not properly addressed. It calls for a review of possible options for a specialist environmental Commissioner or equivalent, and for strengthening the role of courts or tribunals in the environmental field. (18 July 2017)

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Food Waste

WRAP: Consultation – Updating guidance to food businesses on the application of date marks and related advice: seeks views on draft new industry guidance on the application of on-pack date and related advice (storage and freezing guidance) that aims to assist further reductions in food waste at home and remove key barriers to redistribution. The closing date for comments is 3 August 2017. (6 July 2017)

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Infrastructure Planning

R (Scarisbrick) v Secretary of State for Communities and Local Government [2017] EWCA Civ 787 (CA): S applied for judicial review of the SoS's decision to grant a development consent order under s.114 of the Planning Act 2008 for the construction of a hazardous waste landfill facility with a capacity of 150,000 tonnes pa, and the continuation of filling with hazardous waste of the adjacent landfill site. The issue was whether, in making the development consent order, the SoS had erred in his approach to the assessment of the need for the project by misconstruing and misapplying the policy in s.3.1 of the National Policy Statement (NPS) for nationally significant hazardous waste infrastructure, which said that relevant applications had to be assessed "on the basis that need has been demonstrated".
The court held, refusing the application, that the issue was not whether the NPS was lawful, but whether it had been lawfully construed and applied here. When determining an application for a development consent order, the SoS had to follow the requirements of s.104 of the 2008 Act and his considerations would include the policy need established in the NPS, any specific regional or local need for the development, any planning benefits, and the likely effects of the development on the environment. Where the proposed development was in the Green Belt, the making of the decision had to be approached as the relevant policy in the NPS required. The weight to be given to particular considerations, including the need identified in the policy in s.3.1 of the NPS, would always be a matter for the exercise of the SoS's planning judgement in the particular circumstances of the case. The need identified and established in the policy had to be given appropriate weight in the making of a decision on an application for a development consent order, but it would not necessarily carry decisive or even significant weight when the planning balance was struck. It did not provide the SoS with "carte blanche" to grant consent, without carrying out a proper balancing exercise nor did it mean that the bigger the project, the greater was the need for it – that was not what the policy said, and not how it was to be understood. The SoS had not misunderstood or misapplied the relevant NPS policies nor had he treated the policy need for the development as the single decisive factor in his assessment of the planning merits. He had determined the application lawfully, complying with the requirements of the statutory scheme. (23 June 2017)

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Municipal Waste

Welsh Government: Changes to local authority municipal waste statistical outputs: seeks views on  proposed changes to local authority municipal waste statistical outputs. The plans to replace the detailed quarterly statistical release with a short statistical headline outlining key points at a Wales level, and to publish Quarter 4 data as part of the final annual release in October. The annual release  would provide a detailed analysis of the local authority municipal waste data, and would be accompanied by StatsWales data tables. The consultation closes on 19 September 2917. (27 June 2017)

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Packaging Waste

DEFRA: The Producer Responsibility Obligations (Packaging Waste) Regulations 2007 – Post implementation review 2017: sets out the findings of a review into the effectiveness of the 2007 regulations. The review explains the PRN’s two functions: first, they are a ‘counting tool’ for the amount of recovery/recycling undertaken on the behalf of producers; and, secondly, as businesses are charged for PRNs, they are a way to channel producer funding to recycling/recovery operations. DEFRA concludes that the regulations are fit for purpose – the PRN system provides a financial incentive to existing packaging collectors and recyclers, to increase the amount of recycling undertaken. (7 July 2017)

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BSI: Executive briefing: BS 8001 – a Guide: the circular economy – where resources are recovered at their highest quality and kept in circulation for as long as possible – has become increasingly popular in recent years as more businesses seek an alternative to our current ‘take, make, dispose’ economic model. This Executive Briefing, which is aimed at executives, decision-makers and senior managers, provides a short overview of why the circular economy might be beneficial to organisations and how BS 8001 "Framework for implementing the principles of the circular economy in organisations" can help them take steps towards becoming more circular and create direct and indirect value. (5 June 2017)

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Waste Collection

Zero Waste Europe: Rethinking economic incentives for separate collection: this study examines existing measures and incentive schemes that have been used successfully for products such as beverage containers, and identifies additional key waste streams that could benefit from such measures. It highlights the fact that, despite widespread support for the circular economy across all stakeholders, current fiscal policies continue to support a linear economy model. This is evident in the unacceptably low collection rates for textiles (<20%), cigarette butts (<35%), batteries (<40%), and even lower rates for other waste streams such as coffee capsules. Without strong economic incentives for collection, it is unlikely that these numbers will change. It proposes a number of economic instruments to increase the collection and recovery of various waste streams. (12 July 2017)

Erith Holdings Ltd v Murphy [2017] EWHC 1364 (TCC): EH provided enabling services to the construction industry, including waste removal and haulage services. M owned a site that was used as a waste collection and transfer station. M's company MWL had gone into liquidation. EH sought to recover £715,053.82 from M for breach of contract; alternatively, for breach of a personal guarantee or indemnity given by M, or by way of restitution. EH contended that there was an oral agreement with M under which EH would supply waste clearance services for which M would pay or indemnify the group. M submitted that the agreement was made between EH and MWL; there was no agreement with M in his personal capacity, nor was there an enforceable indemnity or guarantee.
The court held, dismissing EH's claim, that there was a valid contract for the waste removal services between EH and MWL. M was not a party to the contract in his personal capacity and did not undertake any personal responsibility for the costs thereafter. It was clear that M was enriched at EH's expense; however, a claim for unjust enrichment would not succeed where there was a subsisting, enforceable contract. Here, there was an agreement made between EH and MWL in respect of the waste removal services so the claim for unjust enrichment must fail. (8 June 2017)

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Waste Management

London Assembly: Waste management: the Assembly's Environment Committee is investigating London’s waste generation, handling and disposal. The three areas of focus are: Waste reduction and the circular economy; Recycling; and Energy from waste. It will explore the Mayor’s role in reducing the costs and environmental impacts of London’s waste and how it is handled. The Committee has issued a call for evidence from members of the public, local authorities, private waste management companies and other stakeholders; the closing date for comments was 28 July 2017. (19 June 2017)

ESA: Misclassification of Waste – and how to avoid it: this guide for waste producers, carriers, brokers, consultants and managers lists the most common mistakes in waste classification, explains why they are wrong, and sets out what to do about. It covers categories such as waste acceptance criteria (WAC), List of Waste/EWC codes, and hazard property codes, as well as waste types such as metals, hydrocarbons, and inert wastes. (1 June 2017)

Welsh Government: Taking forward Wales’ sustainable management of natural resources: seeks views on a number of proposals, which seek to further deliver the commitment to manage natural resources more sustainably to deliver lasting economic, social and cultural, as well as environmental benefits, to ensure the continued prosperity of Wales. The proposals include: 

  • amending s.46 EPA 1990 for sanctions relating to notices for domestic recycling waste, so as to provide local authorities with a power to enforce notices issued to domestic premises, where the household has breached a notice prohibiting specific recycling materials; 
  • amending s.108 EA 1995 to reform the powers of NRW for entry and the ability to seize and retain documents and computers at premises used for residential purposes; and 
  • provide Welsh Ministers with powers to amend the EPA 1990 to allow for enforcement authorities to issue Fixed Penalty Notices where a littering offence has been committed in respect of the vehicle.

The consultation closes on 13 September 2017. (21 June 2017)

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Waste Minimisation

DEFRA: Carrier bags – Why there's a charge: updated information for consumers and others about the 5p carrier bag charge introduced in England from 5 October 2015. It includes information about the results of the scheme, and the money that's been given to good causes. There is also updated guidance for retailers about when they must charge at least 5p for plastic carrier bags, bags they are not required to charge for and the records they must keep and submit. (31 July 2017)

DEFRA: Single-use plastic carrier bags charge – Data in England for 2016 to 2017: since October 2015, large retailers in England have been required by law to charge 5p for all single-use plastic carrier bags and  to report certain information. This publication summarises data collected for the full 12 months reporting year from 7 April 2016 to 6 April 2017. The data indicates that the seven main retailers issued around 83% fewer bags (over 6bn bags fewer) in 2016 to 2017 compared to the calendar year 2014. (21 July 2017)

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Waste Policy

LGA: Evaluation of the Waste and Recycling Programme: the LGA’s Waste and Recycling Programme supported several projects involving councils across England to run projects to help councils make productivity savings in delivering waste services. The programme was open to English councils, and involved a mini competition of bids from councils for around £20,000 each to help develop and promote innovative approaches to waste and recycling. The funded projects each aimed to bring about efficiencies in councils’ services that could be replicable in other councils. This report sets out the findings of the evaluation. (13 June 2017)

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