04/06/2018

 

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 Nadeem Arshad.

The following topics are covered in this update:

   Clinical Waste    Plastic Waste
   Enforcement    Procurement
   Environmental Policy    Recycling
   Litter and Fly-tipping    Waste Electrical and Electronic Equipment
   Municipal Waste    Waste Management
   Permitting and Licensing    Waste Planning

Clinical Waste

Royal College of Physicians: Less waste, more health: A health professional's guide to reducing waste: this report explains how health professionals can positively influence societal health and wellbeing by making simple changes to the procurement and disposal of medical supplies. It states that the NHS has a duty to improve efficiency and reduce carbon dioxide emissions, ensuring that healthcare today doesn’t compromise health and healthcare availability in the future. To achieve this, all NHS staff must become resource advocates, procuring, using and disposing of all resources in the most efficient way. This report illustrates the financial and environmental co-benefits of addressing the issue of waste in the NHS. It includes a range of case studies and 12 recommendations. (17 April 2018)

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Enforcement

LGA: LGA Response to Defra consultation on proposals to tackle crime and poor performance in the waste sector and introduce a new fixed penalty for the waste duty of care: sets out the LGA's comments on the January 2018 consultation. It agrees with the proposal for fixed penalty notices for householders who fail to meet their waste disposal duties and considers this could be a useful alternative to prosecution for “duty of care” offences. It encourages the Government to consider a wider range of solutions to fly-tipping, including a faster and more effective legal system for prosecuting the most serious cases of fly-tipping. Criminal activity will not be deterred by a new fine for householders. Councils would like to see hard hitting penalties that send a strong message to illegal waste operators. (26 March 2018)

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Environmental Policy

Department for Environment, Food and Rural Affairs single departmental plan: sets out how DEFRA plans to deliver its objectives that include "passing on to the next generation a natural environment protected and enhanced for the future". This includes its plans to minimise waste by: 

  • Publishing a new Resources and Waste Strategy, along with underpinning consultations on producer responsibility and deposit return schemes; 
  • Publishing a consultation on restricting plastic drinking straws and cotton buds; 
  • Consulting on reducing poor performance and illegality in the waste sector, covering permitting and exemptions; 
  • Delivering commitments in the National Litter Strategy with the aim to clean up the country and achieve a substantial reduction in litter; 
  • Supporting comprehensive rubbish collection and recycling, support better packaging and take new powers to force councils to remove roadside litter and prosecute offenders; 
  • Implementing the OSPAR Regional Action Plan on Marine Litter; and 
  • Delivering the legislated ban on sale of microbeads in rinse-off personal care products.

(23 May 2018)

DEFRA: Environmental principles and governance after EU Exit: seeks views on the development of a new Environmental Principles and Governance Bill, which will establish a new statutory independent environmental watchdog to hold government to account on its environmental ambitions and obligations once the UK has left the EU. The Bill would also to require ministers to produce, and then have regard to, a statutory and comprehensive policy statement setting out how they will apply core environmental principles as they develop policy and discharge their responsibilities. The paper considers some of the key questions around how environmental principles should be embedded into law, public policy-making and delivery, and what functions and powers the new environmental watchdog should have to oversee environmental law and policy. The consultation closes on 2 August 2018. (10 May 2018)

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Litter and Fly-tipping

DEFRA: Reducing litter; Proportionate enforcement: seeks views on proposals to modify the Code of Practice on Litter and Refuse to incorporate guidance on the proportionate and effective use of fixed penalties (civil and criminal) against littering and related offences. The guidance is also relevant for other environmental fixed penalty powers such as for abandoned vehicles, fly-tipping, parking, and offences related to domestic waste bins. The consultation closes on 8 June 2018. (10 April 2018)
There is also updated guidance on Fixed penalty notices: issuing and enforcement by councils that sets out how councils and other authorities issue fixed penalty notices (FPNs) for environmental offences, the fine limits and how the money can be spent. (1 April 2018)

Environment Agency: Relaxing certain waste regulatory requirements for volunteers and waste sites involved in voluntary litter collection (RPS 212): this regulatory position statement sets out the Agency's regulatory approach to certain aspects of voluntary litter collection. It states that volunteers who transport litter from voluntary litter collections and follow the conditions in this RPS do not need to apply for an environmental permit, register as a waste carrier or register an exemption. This RPS also allows permitted household waste sites to accept litter for disposal and recycling from voluntary litter collection; this includes sites that are not allowed to accept litter under the conditions of their permit. (9 May 2018)
 
LGA: Fly-tipping crisis – Dumped waste across England could stretch from London to Moscow: new analysis shows that the cost of clearing up fly-tipping rose by 13 per cent over the last year, to £57m. The LGA is calling on the Government to "urgently streamline" the courts and prosecution process for offences by introducing a scaled-up and speedier approach to punishing fly-tipping, so that local authorities are able to recover the costs of prosecutions and truly tackle fly-tipping. This press release includes case studies of how three local authorities are tackling fly-tipping in their area. (12 May 2018)

Local Government Lawyer: Prosecution by council over waste dumping sees business fined £35k: reports that Willesden Magistrates' Court has fined an accountancy business £35,000, and ordered it to pay costs of £1,402.50 and a victim surcharge of £170, after the firm was found guilty of illegally dumping waste. The prosecution was brought by Brent LBC after complaints from nearby residents about the rubbish. (18 April 2018)

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Municipal Waste

Environmental Services Association: Delivering best value through competition: the trade body for the UK’s resource and waste management industry has launched a campaign to promote the use of outsourcing to deliver cost savings and drive innovation in service delivery for local authorities and their residents. Their briefing sets out the arguments in favour of using the market to find contracting solutions that deliver value for money. (10 April 2018)

LARAC: The future of local authority waste funding: this policy paper aims to stimulate debate and bring about key policy developments and change in council waste funding across the UK. LARAC believes that without a complete overhaul of the current finance system, high recycling levels of household waste will be virtually impossible to achieve. It urges the industry and governments to come together to turn the tide of cuts to local authority funding and inject much needed and on-going finance into the municipal system. The paper contains a number of recommendations which include serious research and consideration of direct charging in the UK, major producer responsibility reform and a managed process towards the standard use of the On-Pack Recycling Label (OPRL) system. (11 April 2018)

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Permitting and Licensing

Environment Agency: Excavated waste from utilities installation and repair (RPS 211): this regulatory position statement (RPS) applies to businesses who deal with excavated waste from unplanned utilities installation and repair works. It allows excavated waste which has not been assessed and classified in line with the hazardous waste technical guidance to be classified as non-hazardous waste. Businesses that follow the conditions in this RPS do not need to apply a hazardous waste classification for excavated wastes covered by this RPS. If they cannot comply with the conditions in this RPS they must assess and classify all excavated waste in line with the hazardous waste technical guidance. (30 May 2018)

Natural Resources Wales: Warning to waste companies: NRW is  strongly advising companies that handle waste in Wales to comply with the rules on environmental permits. The warning comes after Mold Crown Court ordered the directors of a waste company to pay a total of £292,000 under the Proceeds of Crime Act 2002 as compensation for running a waste operation illegally. The figure is based on the potential value at auction of the company’s assets and the personal assets of all three directors. (16 April 2018)

Stone v Environment Agency [2018] EWHC 994 (Admin) (Admin Ct): S, a company director, appealed by way of case stated against convictions for offences under the Environmental Permitting (England and Wales) Regulations 2010. S's company owned a site that was leased to a third party, Q, who operated a waste business there, recycling mattresses. The Environment Agency served an enforcement notice on Q and he ceased trading, leaving about 471 tonnes of mattresses on the site. The Agency contended that S and his company had knowingly permitted a waste operation to be carried on at the site in the form of storage pending removal or disposal. S argued that there had been no waste operation on the site during the period of the charges as the recycling business had been Q's, and what was done after his departure was a clean-up operation. Also, if what was occurring was a 'waste operation', it was not one which they had knowingly permitted. The magistrates found S and sentenced him to a 12 month community order; the company was fine £5,000. The magistrates stated two cases: were they entitled to find that there was a continuing "waste operation" consisting of the storage or waste between the dates charged?; and were they entitled to find that the offence of "knowingly permitting" the operation of a regulated facility did not require the prosecution to establish that the accused took a positive act within the period covered by the charges, but simply knew such a waste operation (as defined) was taking place?
The court held, dismissing S's appeal, that the answer to the magistrates' first question was "Yes". Disposal and recovery operations under Annex I and Annex II to the Waste Framework Directive 2008/98 showed that storage pending disposal or recovery was a "waste operation" and there was no authority for the argument that storage required some positive act of retention. The magistrates ad been entitled to find that the mattresses continued to be stored at the site and there was no meaningful distinction between storage pending disposal or recovery on the one hand and passive sufferance pending the 'expulsion' of the mattresses.
On the second question, the magistrates were right to find that the offence of "knowingly permitting" the operation of a regulated facility did not require the prosecution to establish that the accused took a positive act within the period covered by the charges. It was sufficient for the prosecution to prove that the accused knew such a waste operation (as defined) was taking place and did nothing to prevent it. The magistrates were entitled to find that was the case.  (1 May 2018)

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Plastic Waste

WRAP: UK Plastics Pact: this initiative brings together businesses from across the entire plastics value chain with UK governments and NGOs to tackle the scourge of plastic waste. 42 businesses, including major food, drink and non-food brands, manufacturers and retailers right through to plastic reprocessors and packaging suppliers, have made their commitment to the Pact. These Pact members are responsible for over 80% of the plastic packaging on products sold through UK supermarkets. In addition, 15 other organisations have also shown their commitment to the Pact. (26 April 2018)

DEFRA: UK Government rallies Commonwealth to unite on marine waste: the Government has announced that it intends to consult on plans to ban the sale of plastic straws, drink stirrers and plastic-stemmed cotton buds. The Prime Minister also called on all other Commonwealth countries to join in the fight against plastic pollution. The Prime Minister has urged all Commonwealth countries to sign-up to the newly-formed Commonwealth Clean Oceans Alliance and take action to eliminate avoidable plastic waste, e.g. by a ban microbeads, a commitment to cutting down on single use plastic bags, or other steps. To drive this forward the Government has committed a £61.4m package of funding to boost global research and help countries across the Commonwealth stop plastic waste from entering the oceans in the first place. (18 April 2018)

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Procurement

CCS: Procurement Policy Note 01/18: Supply chain visibility: this PPN sets out new measures to increase the visibility of subcontracting opportunities in Government supply chains and to provide greater visibility of supply chain spend. The measures include a reporting template. All Central Government Departments, their Executive Agencies and Non Departmental Public Bodies must apply the provisions of this PPN in new procurements from 1 May 2018. (10 April 2018)

CCS: Prompt payment by Government suppliers: seeks views from suppliers to government, their representatives, public bodies and those involved in public procurement on proposals to exclude suppliers from major government procurements if they cannot demonstrate a fair, effective and responsible approach to payment in their supply chain management. The closing date for comments is 5 June 2018. (10 April 2018)

DDCMS: The Public Services (Social Value) Act 2012 – Introductory guide: the Office for Civil Society, with support from the Crown Commercial Service, has written an introductory guide to the Social Value Act for commissioners and policy makers. It gives a plain English explanation of the Act and advises on how to include social value in specifications for services. This guidance is aimed at those in commissioning, policy-making or operational roles who need to procure a service on behalf of bodies defined as contracting authorities under the Public Contracts Regulations 2015. (5 April 2018)

CCS: Public Sector contract: the CCS has published the Core Terms and generic schedule templates that make up the Public Sector Contract standard template for framework contracts for common goods and services. It says that when setting up a new framework contract, CCS will use: the standard core terms (used in every procurement), and relevant schedules (some schedules must be used, while others are optional). These schedules are templates. They will be customised for every procurement by CCS and will be found in the bid pack for new procurements. (1 May 2018)

CCS: Procurement Policy Note PPN 02/18 Changes to data protection legislation & General Data Protection Regulation: this PPN contains enhanced guidance and clarifications on a number of key areas regarding GDPR compliance, with updated standard generic clauses. It replaces PPN 03/17. The note applies to all Central Government Departments, their Executive Agencies and Non Departmental Public Bodies. Other public bodies will also be subject to the new Data Protection Legislation and may wish to apply the approaches set out in this note. See also our article on PPN 02/18. (18 May 2018)

Bevan Brittan: Procurement Bytes on Supply Chain: we have published three new articles in our Procurement Byte series: 

  1. Crown Commercial Service Procurement Policy Note PPN 01/18: comments on the new PPN Action Note 01/18 "Supply Chain Visibility" that sets out two new requirements aimed at assisting suppliers, including SMEs, in bidding for work in Government supply chains
  2. CCS consultation on Prompt Payment by Government Suppliers: looks at the new proposals to include the issue of whether a supplier has demonstrated a fair, effective and responsible approach towards payment of its supply chain as a selection criterion or as a ground for exclusion in major government contracts
  3. The Reporting on Payment Practices and Performance Regulations 2017: considers the requirements of recent regulations aimed at ensuring the transparency of large companies in their payment practices and performance. This legislation has not been particularly well publicised but has the potential to impact on public procurement in light of the general developments in supply chain transparency discussed in our first two Bytes and in the context of the recent news around Carillion. (17 May 2018)

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Recycling

Environmental Services Association: An economic assessment and feasibility study of how the UK could meet the Circular Economy Package recycling targets: this report looks at what it will take to meet the (weight based) 60 per cent recycling targets by 2030 proposed by the EU Circular Economy Package. It considers what changes in operations would be required for local authorities and businesses to increase recycling and how much it might cost, focusing on end of life and end of use. It finds that over half of councils will be able to meet the target of 60% recycling at no additional cost, but only if they are willing to make the necessary changes to their services, such as reducing the frequency of waste collections to make the savings that could pay for additional recycling services. (25 May 2018)

European Commission: Circular Economy – New rules will make EU the global front-runner in waste management and recycling: announces that EU Member States have approved a package of legislation on waste and the circular economy that sets ambitious recycling targets. The new rules will help to prevent waste and, where this is not possible, significantly step up recycling of municipal and packaging waste. They will phase out landfilling and promote the use of economic instruments, such as Extended Producer Responsibility schemes. The new legislation strengthens the "waste hierarchy", requiring Member States to take specific measures to prioritise prevention, re-use and recycling above landfilling and incineration, thus making the circular economy a reality. The press release includes details of the new recycling targets for 2025, 2030 and 2035. (22 May 2018)

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Waste Electrical and Electronic Equipment (WEEE)

DEFRA: UK Waste Electrical and Electronic Equipment Regulations 2013 – Summary of consultation responses and the UK Government’s response to proposed amendments: sets out the Government's response to the October 2017 consultation that sought views on proposed amendments to the 2013 WEEE Regulations, including introducing "Open Scope" requirements. The majority of the respondents favoured Option 2, namely to implement the WEEE Directive requirements by amending the 2013 WEEE Regulations to retain the current system of 14 categories with new flexibility to allocate products previously out of scope to one of the 14 categories; and to develop protocols that will allow the UK to report to the EU under the six WEEE Directive categories. It also states that the Government will amend the WEEE Regulations to introduce a mandatory requirement for Producer Compliance Schemes (PCSs) to be part of a scheme whereby costs of collecting WEEE when requested by local authorities are shared amongst all PCSs. This is to ensure that Regulation 34 requests are fulfilled and collection services are provided to local authorities in circumstances where they have no collection contracts with PCSs. (22 May 2018)

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Waste Management

DEFRA: Digest of waste and resource statistics, 2018 edition: this is the fourth edition of the Digest that brings together a wide range of key statistics on waste and resource. It looks at the physical flow of available materials through the economy, followed by sections looking at waste. (24 May 2018)

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Waste Planning

Wiltshire Waste Alliance Ltd v Secretary of State for Communities and Local Government [2018] EWHC 1110 (Admin) (Admin Ct): WWA, a local residents' group, applied under s.288 TCPA 1990 to quash the planning inspector's decision to grant permission to a waste company, HWS, to extend a materials recycling facility. The site was located within a larger site where HWS conducted a variety of waste management activities.
The court held, granting the application, that the inspector had erred in his consideration of the relevant consents and had failed to give consideration to the questions posed as to the limits of those consents. This infected the inspector's conclusions regarding the baseline scenarios which meant that its assessment of likely significant effects arising from the proposed development was also affected. To that extent, the Environmental Statement was inadequate. (10 May 2018)

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