Waste Watch - November/December 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 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
Incineration	Procurement
Landfill	Producer Responsibility
Litter and Fly-tipping	Waste Policy

Enforcement

Sentencing Council: Health and safety offences, corporate manslaughter and food safety and hygiene offences – Definitive guideline: sets out a new guideline for judges and magistrates that aim to ensure a consistent, fair and proportionate approach to sentencing organisations or individuals convicted of corporate manslaughter, health and safety and food safety and hygiene offences. The guidelines set out sentencing ranges that reflect the very different levels of risk of harm that can result from these offences; they also take into account how culpable the offender was. For fines, the turnover of the offender is used to identify the starting point of the fine. They provide for remedial orders to be made by the court in addition to or instead of punishment in cases where they may be appropriate, and also includes a range of mitigating factors which allow for voluntary positive action to remedy a failure on the part of offenders to be reflected in sentences. The guidelines will come into force in courts on 1 February 2016. (2 November 2015)

Environment Agency: Massive fines for tipping offences: reports that Truro Crown Court has ordered three businessmen to pay more than £262,000 in fines, proceeds of crime payments and costs for illegally dumping more than 60,000 tonnes of construction waste, demolition waste and soil on two farms. (20 November 2015)

R (Allensway Recycling Ltd) v Environment Agency [2015] EWCA Civ 1289 (CA): the issue in this case was whether entry to residential premises in the exercise of powers under s.108 of the Environment Act 1995 and pursuant to a warrant lawfully granted under Sch.18 to that Act, could lawfully be effected only after giving at least seven days' notice to the occupier of the premises, even where the warrant had been granted on the basis that an application for admission to the premises would defeat the object of the proposed entry. The Agency obtained warrants to enter and inspect business and residential premises in connection with its examination of AR's business as operator of a permitted waste composting facility. AR contended that the Agency had exceeded its powers of entry, but the court dismissed their claim for judicial review challenging the execution of the warrants.
The Court of Appeal held, allowing AR's appeal, that the judge's construction did not give proper effect to the language of s.108(6) or to the relationship between that provision and Sch.18. The natural meaning of the subsection was clear: in every case there must be at least seven days' notice before entry may be effected, and entry may be effected after the expiry of the notice period only with the consent of an occupier or under the authority of a warrant. Parliament had chosen, by s.108(6), to confer special protection on residential premises as regards the exercise of powers under s.108 and it had done so by way of a detailed provision. The court should be very slow to read into that provision an implied qualification to the protection that Parliament had conferred. (16 December 2015)  

^back to top 

Incineration

DEFRA: Environmental permitting guidance – Waste incineration: updated guidance on when Chapters 2 and 4 of the Industrial Emissions Directive 2010/75 apply to a waste incinerator, co-incinerator or small waste incineration plant. The revised guidance follows on from the September 2015 consultation on whether the proposed changes were clear. The changes clarify the guidance to state clearly that all waste incineration plants and waste co-incineration plants burning waste oils in England and Wales fall under the scope of Chapter IV of the Industrial Emissions Directive. This revised guidance for England takes effect from April 2016. (22 December 2015) 

^back to top 

Landfill

HMRC: Draft legislation: the Landfill Tax (Amendment) Regulations 2016: in the Autumn Statement 2015, the Government announced a number of changes to the Landfill Communities Fund (LCF). This draft statutory instrument amends the Landfill Tax Regulations 1996 so as to improve the flow of funds to communities by removing barriers that prevent funds reaching projects and ensure value for money for the taxpayer.
There is also a Tax Information and Impact Note explaining the changes: Reform and value of the Landfill Communities Fund. (9 December 2015)

^back to top 

Litter and Fly-tipping

DCLG: Government response to the Communities and Local Government Select Committee’s Seventh Report of Session 2014-15 on litter and fly-tipping in England: sets out the Government’s response to the issues raised by the CLG Select Committee in its report on litter and fly-tipping. It comments on each of the Committee's 21 recommendations regarding the problems that litter and fly-tipping create for local communities, the effectiveness of councils' actions for managing waste in the local environment, and whether any changes are needed to the regulatory framework. (4 December 2015) 

^back to top 

Permitting and Licensing

Environment Agency: Standard Rules for the Environmental Permitting Regulations – Consultation No14: Summary of consultation responses and decisions: in December 2014, the Agency sought views on views on proposals for new and amended rules and risk assessments. This document states that the responses from the consultation will be used to inform new and amended standard rules and the generic risk assessments. (2 November 2015) 
The new and revised sets of standard rules for regulating waste activities have now been published on the Environment Agency's website. They cover a wide variety of activities including anaerobic digestion, metal recycling, waste transfer stations, construction waste, WEEE treatment, composting and incinerator bottom ash treatment.

DEFRA: Consultation on the consolidation of the Environmental Permitting (England and Wales) Regulations 2010 – A summary of responses to the consultation and government response: sets out the Government's response to the August 2015 consultation on the accuracy of the draft Environmental Permitting (England and Wales) Regulations 2016. It states that Government will proceed to make the regulations with a view to them coming into force on 1 January 2017. (10 December 2015) 

R (Tarmac Aggregates Ltd) v Secretary of State for Environment, Food and Rural Affairs [2015] EWCA 1149 (CA): TA, quarry operators, applied for judicial review of the inspector's dismissal of their appeal against the Secretary of State's refusal to grant them a standard rules environmental permit. TA applied for an environmental permit in connection with its restoration of a quarry and the reinstatement of a public path through the middle of the site. LA proposed to use inert waste to raise land levels to support the reinstated path and applied for a permit in respect of the waste. The EA decided that the operations proposed by TA did not constitute recovery operations for the purposes of the Waste Framework Directive 2008/98 (WFD) and its decision was upheld by the Inspector on appeal. The court dismissed TA's application for judicial review. TA  appealed. The central issue was whether the inspector had correctly interpreted the concepts of "recovery" and "recovery operations" in art.3(15) WFD.
The court held, allowing the appeal, that the EA should issue a standard rules environmental permit for the use of relevant waste for the backfill operation in this case. It was clear that use of waste material for the function in question would involve replacing other materials which would otherwise have been used to fulfil that function, in accordance with the definition of "recovery" in art.3(15) WFD. The primary objective in using waste for the construction was the recovery of the waste, in the sense of replacing the use of primary materials in an operation which would have to be carried out for the purpose of ecological improvement of the quarry site in any event, thus avoiding the need to use primary materials for that purpose. The backfill operation therefore ought properly to be classified as a recovery operation. (17 November 2015)

^back to top 

Procurement

CCS: Procurement Policy Note 17/15 – Standard EU forms and notices for public procurement: announces that the new standard forms and notices for procurements under the Public Contracts Regulations 2015 have been published in the Official Journal of the EU. Contracting authorities should use the new standard forms and notices for procurements under the Public Contracts Regulations 2015. They should stop using the current forms and notices as soon as the new ones become available on Tenders Electronic Daily (TED) eNotices or via TED e-Senders system. Note that the commencement date of 3 December in the PPN is incorrect - the Commission Implementing Regulation 2015/1986 actually comes into force on 2 December 2015. (2 December 2015)
See our Procurement Alert: New standard form OJEU notices published.  

^back to top 

Producer Responsibility

DEFRA: Consultation on changes to the plastic packaging recycling business targets for 2016 & 2017 and new plastic and glass targets for 2018-20: seeks views on proposals to amend the business targets under the Producer Responsibility Obligations (Packaging Waste) Regulations 2007 (SI 2007/871) that require producers of packaging to ensure that a proportion of the packaging they handle is recovered and recycled. The proposed changes would amend plastic packaging recycling targets for 2016 to 2017.  It would also set new targets for plastic and glass packaging for 2018 to 2020.  These changes are being considered following publication of WRAP's Plastic Packaging Market Study (Plastic Flow) 2014 report. The consultation closes on 23 December 2015. (26 November 2015)

DEFRA: Review of standards for biodegradable plastic carrier bags: this report to Parliament is made under the Single Use Carrier Bags Charges (England) Order 2015 that requires retailers to charge at least 5p for each single use carrier bag, except where exempted. The report summarises conclusions drawn from a review of industry standards for the biodegradability of lightweight plastic material. It found that there are a number of standards for plastic bag biodegradability and it will need to conduct further work before any of these could be used to exempt certain types of carrier bags on grounds of biodegradability. (17 December 2015)

Waste Batteries and Accumulators (Amendment) Regulations 2015 (SI 2015/1935): these regulations, which come into force on 1 January 2016, amend certain provisions of SI 2009/890 that implements the Waste Batteries and Accumulators Directive 2006/66. The amendments reduce regulatory burdens on businesses, allowing for increased focus on the key aims of the core regulations, including delivery of environmental benefits. (26 November 2015)

Waste Electrical and Electronic Equipment (Amendment) Regulations 2015 (SI 2015/1968): these regulations, which come into force on 25 December 2015, amend the WEEE Regulations (SI 2013/3113) that transpose the recast WEEE Directive 2012/19. They amend the definitions of "appropriate authority", "evidence note" and "very small EEE" to clarify the meaning of these terms. They also allow service of documents by electronic means, and make minor drafting amendments and further clarification to the WEEE Regulations. (3 December 2015)

^back to top

Waste Policy

DEFRA: UK response to European Commission public consultations on the circular economy and on the functioning of waste markets: sets out the UK Government's response to two EC consultations on actions to promote the circular economy to be taken forward over the five next years at EU level. It states that while the UK believes that EU action could be beneficial in improving harmonisation, data collection and benchmarking across Member States, any new measures must respect the principles of subsidiarity, better regulation and national decision making. The Government endorse the use of voluntary measures, which have been successful in the UK, and oppose prescriptive approaches that do not allow Member States scope to take account of their national circumstances. The Government asks that the Commission  focus on the following as it develops its new package on the Circular Economy:

• Draw on the principles of Better Regulation;
• Approach the circular economy as a whole;
• Build on current measures and develop new ideas to keep materials in circulation where it makes sense economically, environmentally and socially;
• Work together with other parts of the Commission.

DEFRA has also issued a response to the EC's consultation on barriers to the establishment of a more circular economy, that includes examples of successful measures adopted across the UK or within UK regions which the Government believes could be usefully adopted in other countries or regions. (November 2015) 

^back to top