Waste Watch - November 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 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:

Enforcement	Municipal Waste
Environmental Policy	Permitting and Licensing
Health and Safety	Producer Responsibility
Landfill	Waste Planning

 Enforcement

Sentencing Council: Environmental offences – Assessment of guideline: the Sentencing Council has published its assessment of the impact of its environmental offences definitive guideline on sentencing trends, under its statutory duty to monitor the operation and effect of its sentencing guidelines and to draw conclusions from this information. Its environmental guideline came into force on 1 July 2014, and includes offences covered by s.33 EPA 1990 and regs.12 and 38(1), (2) and (3) of the Environmental Permitting (England and Wales) Regulations 2010 (EPR 2010). Its assessment finds that for organisations, the guideline appears to have had the effect anticipated in the resource assessment, as some organisations have received higher fines since the guideline came into force. Data collected showed that the majority of cases were sentenced within the appropriate category range, which implied that the guideline was generally being applied in the manner intended. Although on occasion minor issues were encountered, overall sentencers did not indicate that they experienced any difficulties applying the guideline. (14 November 2016)

Environment Agency: Fines for illegal waste site operators: Snaresbrook Crown Court has fined a waste management company and two individuals £103,000 after >6,000 tonnes of controlled waste was illegally deposited on a residential site adjacent to a river. The premises did not have an environmental permit or an exemption for the waste to be deposited and no infrastructure was in place protecting the environment from pollution.  The defendants were also ordered to pay costs totalling £68,085. (1 November 2016)

Environment Agency: Man sentenced after waste fire destroys firm: Teesside Crown Court has sentenced a businessman to six months' imprisonment, suspended for two years, after he was found guilty of two waste offences. He was also ordered to pay £5,000 costs and an £80 victim surcharge. The charges arose after an incident at his chemicals site where his illegal unsupervised burning of waste resulted in a chemical spill and well over £500,000 paid out by insurers to clean up the site. (18 November 2016)

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Environmental Policy

Welsh Government: Consultation to inform the development of the Natural Resources Policy: seeks views on  proposals for a national natural resources policy, which include: accelerating green growth by increasing resource efficiency, renewable energy and supporting innovation; delivering nature-based solutions to improve resilience and the benefits derived from natural resources; and improving community and individual well-being by taking a place- and landscape-based approach. The consultation closes on 13 February 2017. (14 November 2016)

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Health and Safety

HSE: Employee dies after collapse of waste material covers him: Maidstone Crown Court has fined a waste and recycling company, New Earth Solutions Group Ltd, £80,000 plus ordered it to pay costs of £38,374, after the company pleaded guilty to breaching s.2(1) of the Health and Safety at Work, etc Act 1974. The prosecution arose after a pile of waste material collapsed on top of an employee who was working close by, asphyxiating him. An HSE investigation found that the company had failed to undertake and prepare risk assessments or safe systems of work for the creation and management of the stockpiles or adequate training. The judge indicated that if the company had not been in administration the fine would have been between £600,000 and £1.3m. (7 November 2016)

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Landfill

Landfill Disposals Tax (Wales) Bill: this Bill has been introduced into the National Assembly and is at Stage 1. It provides for a tax on disposals to landfill in Wales, to replace Landfill Tax from 1 April 2018. The tax will be payable by landfill site operators who pass these costs on to waste operators. The current Landfill Tax has two rates – a lower rate for qualifying materials and a standard rate for all other material. The new Landfill Disposals Tax will have these two tax rates along with a new third tax rate for unauthorised disposals, which is expected to be higher than the standard rate. This will act as a financial deterrent to illegal waste activity and tackle a potential source of tax evasion. (28 November 2016)

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Municipal Waste

Welsh Government: Local authority municipal waste management report for Wales, 2015-16: this statistical report shows that the percentage of local authority municipal waste (excluding abandoned vehicles) that was reused, recycled or composted in Wales has continued to increase since 2000-01, with 60.2% of waste reused/recycled/ composted during 2015-16. During 2015-16, 19 of the 22 local authorities in Wales met or exceeded the statutory reuse / recycling / composting target of 58%. (6 October 2016)

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Permitting and Licensing

Environment Agency: Bidwell Metals Ltd will close Somerset scrapyard after noise complaints: announces that a Somerset scrapyard that caused the ‘worst noise nuisance’ an Environment Agency expert had ever experienced, is to close. The Agency informed the scrap metal business that its waste exemption activities were being de-registered and would therefore have to stop, following complaints from nearby residents bout excessive noise. The company applied for judicial review of the Agency's decision, arguing the Agency had incorrectly applied UK and EU law and that the company had acquired a ‘prescriptive right’ to cause a noise nuisance because of the length of time the business had been in existence. It also alleged that the Agency had failed to consider its property rights under Human Rights law. The company withdrew its claim after the Agency agreed to postpone enforcement action in return for the company agreeing to a Consent Order under which it agreed to vacate the site and to clear the site and make good any polluted areas. (10 November 2016)

Natural Resources Wales: Consultation on changes to Standard Rules Permits: seeks views on proposed changes to a number of existing Standard Rule sets for various reasons, including the introduction of new fire prevention requirements, and changes to permit conditions to allow a broader range of materials and activities to be undertaken under a single permit. NRW has also reviewed the deposit for recovery permits to reduce the risk of pollution from these activities, and reviewed mobile plant permits for land treatment. The proposed changes if agreed, will apply to existing permits and new applications. The consultation closes on 23 December 2016. (31 October 2016)

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Producer Responsibility

Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations 2016 (SI 2016/1146): these regulations, which come into force on 20 December 2016, amend SI 2007/871 by setting packaging targets for plastic for 2016 - 2020 and for glass for 2018 - 2020. The target for recycling by re-melt for 2016 and 2017 is continued for 2018 - 2020. (25 November 2016)

DEFRA: Consultation on changes to packaging recycling business targets for paper, steel, aluminium, wood and overall recovery and recycling for 2018-20: seeks views on revised business targets for paper, aluminium, steel and wood and for overall recovery and recycling under the Producer Responsibility Obligations (Packaging Waste) Regulations 2007 that require producers of packaging to make sure that a proportion of the packaging they handle is recovered and recycled. The proposed changes would set new targets for overall recovery and recycling between 2018 and 2020. They will also set new material specific targets for paper, steel, aluminium and wood. These changes are being considered because the current targets expire in 2017. The consultation closes on 6 January 2017. (29 November 2016)

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Waste Planning

R (Birchall Gardens LLP) v Hertfordshire CC; BP Mitchell Ltd, Welwyn Hatfield BC and East Hertfordshire DC (Interested Parties) [2016] EWHC 2794 (Admin) (Admin Ct): BG applied for judicial review of the County Council's decision to grant planning permission for an inert waste recycling facility. The application site had been allocated in the county's Waste Site Allocations Document, which formed part of the statutory Development Plan, as being potentially suitable for a range of waste management uses, including the recycling of inert waste. The screening opinion concluded that an environmental impact assessment (EIA) was not needed as it was unlikely that the proposed development would cause any significant harm and therefore an EIA was not required. Significant harm was unlikely as only inert waste was to be imported, the development did not meet the size requirements and there were no particular sensitivities in the area. BG contended that the screening opinion was unlawful because the County Council  had failed to comply with its obligation under reg.4(7) of the EIA Regulations 2011 to give clearly and precisely the full reasons for its opinion that the proposed development did not constitute EIA development.
The court held, refusing the application, that the issues of whether there was sufficient information before the planning authority for them to issue a screening opinion and whether a development was likely to have significant environmental effects, were both matters of judgment for the planning authority. Such decisions could only be challenged in the courts on grounds of irrationality or other public law error. The burden lay on the claimants to show that the shortcoming in the reasons stated was of "such a nature that it may well conceal" a public law error. Here, the reasoning given in the screening opinion was, in the context of this case, legally adequate. Even if the screening opinion had been quashed because of the inadequacy of the reasons which accompanied that decision, it was inevitable that the County Council would have issued a further screening opinion with more detailed reasoning to the effect that EIA was unnecessary. BG had not been able to identify any inadequacy in the information before the County Council upon which the decision to grant permission was based or any flaw in the making of that decision. The factors upon which BG relied when criticising the reasons given for the screening decision (noise and air quality) were all taken into account by the County Council when it decided to grant permission. In each instance the authority was satisfied that there would be no significant impact. The suggestion that inadequacy of reasoning in the County Council's screening decision raised a substantial doubt as to whether it took these factors into account was entirely artificial and hollow. (4 November 2016)

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