Waste Watch – February / March 2017

Government and EU legal and policy developments in England and Wales relevant to those interested in municipal waste management

03/04/2017

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 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:

    Enforcement    Permitting and Licensing
    Food Waste    Procurement
    Hazardous Waste    Recycling
    Landfill    Waste Electrical and Electronic Equipment (WEEE)
    Litter and Fly-tipping     Waste Policy
    Packaging Waste  

Enforcement

Environment Agency: Ruthless fly-tipper jailed: reports that Plymouth Crown Court has sentenced a persistent fly-tipper to 20 months' imprisonment plus ordered him to pay £7,000 costs after he pleaded guilty to two offences under the Environmental Protection Act 1990 of illegally depositing controlled waste at various sites across Devon and also to an offence under the Control of Pollution (Amendment) Act 1989 of transporting controlled waste without being registered as a waste carrier. The defendant failed to turn up at the court for sentencing and was made the subject of a European Arrest Warrant. (21 March 2017)

Environment Agency: Waste firm AWM fined £125,000 for causing odour pollution: reports that Leeds Crown Court has fined a waste management company £125,000 plus £75,000 costs for causing odour pollution at two of its sites. The company pleaded guilty to two breaches of its environmental permits,  following repeated odour problems that had a detrimental effect on local residents. (7 March 2017)

Environment Agency: Payback for illegal waste crimes: reports that the director of a skip hire business has been given a confiscation order under the Proceeds of Crime Act to pay back £14,000 of available assets. This follows his conviction for operating a waste facility without a permit, depositing waste without a permit and failing to comply with a suspension notice. He could face up to six months in prison if he fails to pay. If he comes into future assets he will have to pay back more of the near £1m agreed benefit sum. (24 February 2017)

Environment Agency: Wiltshire site owner fined for obstructing Environment Agency staff: reports that Swindon Magistrates' Court has fined a businessman £200 with £300 costs after he was convicted of intentional obstruction of an environment officer under the Environment Act 1995. The prosecution followed his refusal to allow the Environment Agency's officers to enter and inspect his premises to investigate claims of an illegal waste site. (17 February 2017)

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Food Waste

WRAP: The business case for reducing food loss and waste: this report analyses the financial impacts of historical food loss and waste reduction efforts conducted by a country, a city, and numerous companies. The results show that the financial benefits of taking action often significantly outweighed the costs. The publication also identifies a number of complementary strategic benefits of reducing food loss and waste. It concludes by outlining how governments and companies can embark on reduction efforts. (7 March 2017)

WRAP: Helping consumers reduce food waste – Retail survey 2015: this survey assessed a range of own-brand and branded food products to understand changes in products since the previous surveys and how these could influence household food waste. The report highlights good progress made by retailers and brands in helping people buy the right amounts of food, and to make better use of the food they buy. It identifies where further action is required, which will inform activity under the Courtauld Commitment 2025 to reduce household food waste. It finds that changes to products and labelling could help prevent £1bn a year of food from being wasted. Good progress has been made in some areas (simplifying date labelling and updating freezing advice) but there is much more that can be done. (27 February 2017)

WRAP: Nine London boroughs & seven EU cities focus on valuing food through TRiFOCAL: announces the nine boroughs that will support a city-wide pilot project aimed at helping Londoners reduce food waste while promoting healthy and sustainable eating and recycling of unavoidable food waste. The project will target households, schools, community groups, hospitality and food services businesses and large businesses with an integrated communications campaign that will combine messages about avoiding wasting food, healthy and sustainable eating and increasing recycling rates for unavoidable food waste both in the home and when eating out. (16 March 2017)

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Hazardous Waste

European Environmental Bureau: Keeping it clean – How to protect the circular economy from hazardous substances: this report contributes to the EU's initiative to address the interface between chemicals, products and waste legislation, including how to reduce the presence and improve the tracking of chemicals of concern in products. It shows how the three relevant blocks of EU legislation – chemicals, product and waste legislation – interact. It highlights complementary features and shortcomings with case studies on two different products, mattresses and televisions. Recommendations are then proposed to improve the current legal framework to ensure better circularity of materials, while protecting human health and the environment. (27 February 2017)
 

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Landfill

HMRC: Landfill tax – Whether to bring illegal waste sites within the scope of landfill tax: seeks views on proposals to extend the scope of landfill tax to material disposed of at illegal waste sites. It follows changes to the definition of a taxable disposal for landfill tax purposes introduced at Spring Budget 2017, which bring greater clarity and certainty for landfill site operators, putting beyond doubt what material is within the scope of the tax. Illegal sites operating without the appropriate environmental licence or permit operate outside the scope of landfill tax making the activity attractive to rogue operators who exploit the disparity of tax treatment to undercut legitimate operators. These proposals aim is to support legitimate operators by removing the advantage criminals have in this sector. The consultation closes on 5 May 2017. (20 March 2017)

Welsh Government: Landfill Disposals Tax (Wales) Bill: this Bill was introduced into the Welsh Assembly in November 2016 and is currently at Stage 2 (Committee consideration of amendments). The Bill provides for a devolved tax on disposals to landfill in Wales, Landfill Disposals Tax (LDT), to replace Landfill Tax from 1 April 2018. It seeks to build on the administrative framework established through the Tax Collection and Management (Wales) Act 2016 by setting out the operational arrangements for LDT in Wales, which will ensure that a tax on disposals to landfill may continue to be managed and collected in Wales once LfT is "switched off" in respect to Wales in 2018. In particular, the Bill sets out: 

  • the definition of a “taxable disposal” on which LDT will be charged; 
  • what is meant by an authorised landfill site and what is expected of landfill site operators; 
  • the application of LDT to disposals made other than at an authorised landfill site and who is liable for LDT on such disposals; 
  • how LDT will be calculated, what rate of tax will apply and what exemptions, reliefs and credits may apply; 
  • duties on taxpayers to make payments and pay penalties and interest in certain circumstances; and 
  • the inspection of premises for the purpose of ascertaining a person’s liability to LDT, and the sharing of information between certain public authorities for the purpose of LDT.

(22 March 2017)

Landfill Tax (Amendment) Regulations 2017 (SI 2017/332): these Regulations, which come into force on 1 April 2017, amend SI 1996/1527 to change the maximum credit that landfill site operators may claim against their annual landfill tax liability when making contributions in respect of the Landfill Communities Fund (LCF), from 4.2% to 5.3%. (10 March 2017)

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Litter and Fly-tipping

DEFRA: Fly-tipping statistics for England, 2015/16: summarises the number and type of incidents of illegally deposited waste contrary to s.33(1)(a) EPA 1990, the cost of dealing with them and the actions taken against fly tipping in England. It highlights that local authorities and the Environment Agency both have a responsibility in respect of illegally deposited waste, including duties to collect and report data on fly-tipping in their area. The data shows that in 2015/16, local authorities dealt with 936 thousand fly-tipping incidents, a 4% increase over 2014/15, with an estimated cost of clearance of £49.8m. (2 March 2017)

Environmental Services Association: New national research reveals that rural businesses are putting themselves at risk of waste crime due to fundamental lack of understanding of key legislation: reports that a new survey by the information campaign Right Waste, Right Place shows the number of those falling victim to fly-tipping in the last three years rose to 43% in some areas, with owners turning to councils for help or being forced to deal with the fallout themselves. The clean-up cost has been estimated to be £100m - £150m pa. Agricultural businesses and rural land owners are bearing the brunt of waste crime with almost a third suffering incidents of fly-tipping on their land. The research shows the fundamental problem is to do with lack of understanding with many leaving themselves open to fines, prosecution and imprisonment due to lack of awareness of their obligations under Duty of Care law. The campaign believes that this lack of understanding of Duty of Care is directly contributing to waste being illegally dumped in rural areas. In response to these statistics, Right Waste, Right Place has launched sector-focused material aimed at increasing awareness amongst agriculture and land management businesses. It is calling on local authorities and businesses in rural areas to support the campaign. (13 March 2017)

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Packaging Waste

Food & Drink Federation / Incpen: Packaging for people, planet and profit - A sustainability checklist: this checklist helps companies choose and optimise their packaging systems in order to continuously improve the sustainability of their value chain. It provides practical guidance for companies to improve resource efficiency at all stages of a packaged product's journey while ensuring that the essential functionality of the packaging is not compromised. While including references to relevant regulation and guidance, the checklist also encourages companies to go above and beyond legal requirements. (10 March 2017)

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Permitting and Licensing

R v Recycled Materials Supplies Ltd [2017] EWCA Crim 58 (CA): RMS, a waste management company, appealed against its conviction on two counts of failing to comply with the terms of an Environmental Permit Condition, contrary to reg.38(2) of the Environmental Permitting (England and Wales) Regulations 2010. RMS carried out its business under two environmental permits (EPs), one issued by Newham LBC and one by the Environment Agency (EA). The Council's permit authorised activities identified by reference to Sch.1 Part 2 Part B of the Regulations; it also contained a number of conditions. The EA's permit was wider, authorising the company to carry out waste operations in respect of a greater quantity and variety of materials. In 2014 the Council brought the instant prosecution, alleging that the company had breached the conditions in its EP. Following a ruling on the law by the trial judge, RMS pleaded guilty and was fined £2,250 on each of the two counts. RMS appealed, submitting that the Council and the EA could not jointly regulate the same activity; its activities were properly regulated by the EA, and the Council's permit was therefore invalid, and because it processed a wider variety of materials than bricks, tiles and concrete, the Council had no jurisdiction to issue a permit or impose conditions; also, if its machines were "mobile plant", they were "waste mobile plant" within the meaning of reg.2 and were therefore regulated by the EA and not the Council.
The court held, allowing the appeal, that the Council had no jurisdiction to issue its EP or to seek to impose the conditions it did while the plant in question was being operated as an integral and effectively permanent part of the waste operation because the activities at RMS's site involved processing more than just tiles, bricks and concrete and were not Part B activities. There was no scope for joint regulation of the activities being carried out by RMS, including the use of the three items of plant that were the specified subjects of the Council's EP. The regulator empowered to exercise the regulatory functions was the EA and not the LBN; it was the EA that had authority under reg.32(1) to exercise the regulatory functions, including the issuing of its EP for the waste operation. RMS's machinery, when being used as an integral and effectively permanent part of the recovery of waste, was not being used on a Part B activity and was therefore not subject to the authority of the Council. The fact that the Council had issued the permit would have become relevant if the plant had in fact been used for what could substantially and realistically be called a Part B activity; on the facts, that seemed unlikely to happen unless the machinery was moved from the present operation and deployed elsewhere. On the assumption that the plant was mobile plant at all, it was not being used to carry out a Part B activity but was being used to carry out a waste operation. It would therefore fall to be categorised as "waste mobile plant" and was therefore not within the sphere of the Council's authority under reg.32(2)(b). (24 February 2017)

Environment Agency: Consultation on England local authority environmental permitting fees and charges scheme: seeks views on proposed amendments to the local authority environmental permitting fees and charges scheme, including a general increase of 4.5 per cent. In particular, it asks if the increase is justified to cover regulatory costs. The consultation closes on 13 April 2017. (15 March 2017)

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Procurement

Milton Keynes BC v Viridor (Community Recycling MK) Ltd (No.2) [2017] EWHC 239 (TCC): the Council sought rectification of its waste recycling contract with V on the grounds of common or unilateral mistake. The contract tender was conducted under the competitive dialogue process. The documents in the final tender bid included an Income Generating Payment Mechanism (IGPM) which identified a fixed payment of £500,000 per annum "indexed for inflation". However, the version of the IGPM included in the contract was not the version that was sent out by V as part of its final tender but the earlier version that had been sent out by the Council with the invitation to tender. The evidence showed that the IGPM incorporated into the contract was inoperable, because there were so many vital parts that were missing.
The court held that the Council had been able to demonstrate all of the relevant ingredients for rectification, on the basis of either common mistake or unilateral mistake. It was in the very nature of a mistake that it was not picked up by those who should have spotted it. Merely because the mistake was so glaring did not mean that it could not have been a mistake at all. There was compelling evidence as to how the mistake happened, and the fact that it was not spotted by either side. That was sufficient to demonstrate that a mistake was made and nothing further was required. The question was then whether it was a common mistake or a unilateral mistake sufficient to justify a claim for rectification. It was plain that the Council made a mistake in that it signed off a version of the contract which included the ITFT version of the IGPM, rather than the version completed and sent back by V. In addition, V made precisely the same mistake. On this basis, there was a common mistake and all of the ingredients were in place to permit rectification. The alternative case of unilateral mistake was also made out. The entire agreement clause was immaterial –where there was a strong case for rectification, the agreement which constituted "the entire agreement" was the contract as rectified and not in the contract which did not reflect the true intention or agreement of the parties.
The court dismissed V's defence to the claim for rectification based on laches and acquiescence. Laches could only attach from the date when the Council realised the mistake. The Council had immediately put V on notice of the mistake and its consequences so any delays were, at worst, a shared responsibility. There was no detriment to V. It was V's own delay during that period, and its own failure to pursue the original vendors, which was directly responsible for the failure of that claim. There was no evidence of acquiescence by the Council in the proposition that, contrary to the accepted tender, the fixed payment would not be subject to indexation nor was there any detriment to V.
The court ordered that the contract was to be rectified by the replacement of the wrong IGPM with the correct IGPM. The contract would then properly record the parties' rights and liabilities. (22 February 2017)

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Recycling

Resource: Recycling – Who really leads the world? Identifying the world’s best municipal waste recyclers: this report present a world league table of reported recycling rates that aims to overcome discrepancies and inconsistencies in reporting methodology. The analysis shows up the vast variations in the ways in which recycling is measured and perhaps the need for greater consistency. It shows how, on the best available data, Wales is now one of the world's top three recyclers and is the second leading recycler  in Europe. (13 March 2017)

Welsh Government: Wales recycling efforts shine on the world stage: announces the award of up to £3m to eight Welsh local authorities to help increase the amount of waste they recycle. The funding will help the selected local authorities to update their recycling methods, increase recycling rates, potentially create new jobs and increase value for money. (13 March 2017)

WRAP: Recycling guidelines: these updated guidelines aim to tackle the continued confusion in UK households around what items can and cannot be recycled. They: list what items can and cannot be collected for recycling, plus serious contaminants that should never be included; and explain how the materials should be presented (e.g. lids on/off) and why certain items cannot be accepted or should be presented in a certain way. They cover paper, card, mixed paper and card, plastic bottles, mixed plastic packaging, glass containers, metal packaging, cartons, food waste and garden waste. (1 March 2017)

GMWDA: Greater Manchester gearing up to recycle more and waste less: announces that Greater Manchester Waste Disposal Authority (GMWDA) and WRAP have joined forces and established a Partnership, Resource Greater Manchester, to drive up recycling and prevent waste across the conurbation. The partnership will provide a strategic programme of work to help Greater Manchester achieve its ambitions towards ‘zero waste’. (23 March 2017)

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Waste Electrical and Electronic Equipment (WEEE)

LetsRecycle: Defra confirms WEEE targets for 2017: reports that DEFRA has confirmed the targets for the collection of waste electrical and electronic equipment (WEEE) for 2017, with a goal of 622,033 tonnes for the year. This overall target has been revised down slightly from the initial proposals circulated by DEFRA at the beginning of the month. (29 March 2017)

WRAP: WEEE flows report: this project updates the numbers the UK holds for the EEE sector by reviewing existing data, gathering new data, and sense checking all the numbers with key industry stakeholders. Projections have also been made on the electronic equipment placed on the market and the WEEE generated to be able to make an assessment of likely compliance with the European Directive’s increasing targets in both 2016 and 2019. (1 March 2017)

WRAP: WEEE Collection trials and monitoring: these five case studies highlight collection trials that tested options to increase the collection of WEEE for re-use and gain maximum value from it. The case studies sought to demonstrate that better collection, preparation for re-use and recovery can maximise value, create jobs and increase skills; and in turn support the Government to meet current and future WEEE collection targets. They include a case study on the inclusion of WEEE re-use in local authority contracts that investigated re-use practice in LA Invitation to Tender (ITT) documents and resulting contracts with Producer Compliance Schemes (PCSs). (14 March 2017)

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Waste Policy

DEEU: Legislating for the United Kingdom’s withdrawal from the European Union: the Government has published its Great Repeal Bill White Paper setting out its proposals for ensuring a functioning statute book once the UK has left the EU. It provides the detail about the repeal of the European Communities Act 1972, how EU law will be converted into UK law and how corrections will be made to the statute book, to ensure the law continues to function once we have left the EU. It states that "unless and until domestic law is changed by legislators in the UK, legal rights and obligations in the UK should where possible be the same after we have left the EU as they were immediately before we left. EU regulations will not be ‘copied out’ into UK law regulation by regulation. Instead the Bill will make clear that EU regulations, as they applied in the UK the moment before we left the EU, will be converted into domestic law by the Bill and will continue to apply until legislators in the UK decide otherwise". The paper confirms that ECJ case law will continue to be binding on UK courts, as it stands at the date of our exit – but after that date, the Supreme Court may come to a different conclusion if it "appears right to do so" (under a 1966 House of Lords Practice Statement). It is, however, expected to use those powers "sparingly". Original provisions in Directives may also remain relevant, post-exit, when interpreting EU derived legislation.
There is also Guidance for businesses on the Great Repeal Bill. (30 March 2017)

Policy Exchange: Going round in circles – Developing a new approach to waste policy following Brexit: this report argues that Brexit presents a huge opportunity for the UK Government to develop a new approach to waste and resources policy. It highlights significant shortcomings in the EU’s approach to waste and recycling: the objectives are increasingly unclear, the targets are badly designed, and the policies are not in the UK’s interest. Rather than adopting the EU’s proposed Circular Economy Package, which would cost British businesses an extra £2bn over the next 20 years, the British Government should use Brexit to define our own approach to waste and resource policy. (1 March 2017)

London Waste and Recycling Board: Business plan 2017 – 2020: this new business plan sets out how LWARB will contribute to the Mayor of London’s ambitious challenge to reinvigorate London’s recycling efforts and accelerate the development of the circular economy in the capital. It sets out three programmes – Advance London, Circular London and Resource London – with a total programme budget, including external project and partner contributions, of around £50m over three years. (14 March 2017)

Environmental Industries Commission: Brexit – Implications for waste and resources legislation: this briefing paper summarises the impact of EU legislation on waste and material resource management and highlights issues that could arise if the UK is no longer subject to EU waste law. It summarises the key elements of EU waste law and the broad impact they have had on the way waste management has been carried out in the UK. It then analyses each major piece of legislation against key criteria, and concludes with recommendations for how to ensure that the UK has coherent and effective waste regulation post-Brexit. The paper argues that it is not clear that the UK will meet the EU 2020 50% recycling target and the Commission will no longer be able to sanction the UK for not achieving it.  While the EU is considering a one-size fits all target for the remaining EU countries for 2030, the UK should consider setting a 2025 target that is ambitious but realistic in a UK context.  Such a target if set with industry and cross-party support would provide an investment framework for the industry to drive UK progress towards a circular economy. (21 February 2017)

Welsh Government: Cabinet Secretary confirms £6.5m ‘Circular Economy’ fund: the Welsh Secretary for Environment and Rural Affairs, Lesley Griffiths, has announced a £6.5m fund to help the country move towards a Circular Economy. The £6.5m Circular Economy Capital Investment Fund will be available to businesses developing capital projects worth up to £50,000 in 2019, building on the highly successful £14m Accelerating Reprocessing Infrastructure Development (ARID) project. It will help Wales towards the milestones of 70% recycling by 2025 and 100% recycling by 2050, as set out in the Welsh Government’s waste strategy Towards Zero Waste. (10 March 2017)

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