High Court clarifies relationship between landfill site regulatory compliance and private nuisance

A recent group action brought by 152 households seeking damages in private nuisance against the defendant, Biffa Waste Services Limited, for odours arising from a pre-treated waste landfill site, has helped to clarify the relationship between regulatory compliance and private nuisance.

The defendant operated a site under an environmental permit issued in accordance with the Environmental Permitting (England and Wales) Regulations 2010. The court held that, in the absence of negligence, the claimants could not make a claim for damages in private nuisance. This was because the environmental permitting regime, which sets out detailed requirements for issuing permits and enforcement mechanisms regulated by the Environment Agency (EA), was designed to manage the balancing of the public interest in waste management and the private interests of residents. It was not for the courts, under the law of private nuisance, to question the balance set by the EA. This decision makes it clear that compliance with environmental permits is a sufficient defence for operators against complaints by the public relating to the matters covered by the relevant environmental permit.

The court also considered what would amount to private nuisance caused by odours generally. The court’s approach was to establish a threshold of what was acceptable based on the particular location of the relevant odour’s source. The threshold for the mixed-use neighbourhood in this case was held to be 52 ‘odour complaint days’ per year (days on which a claimant had some form of contemporaneous record of odour, regardless of intensity or duration).

Warning to local authorities on the illegal export of waste electrical and electronic equipment (WEEE)

A recent BBC programme has highlighted the need for local authorities (LAs) to be vigilant in ensuring that WEEE collected at their waste collection facilities is treated at Environment Agency (EA) approved facilities only. LAs are not under a duty to collect or dispose of WEEE but many volunteer to register their amenity sites as designated collection facilities (DCFs) as WEEE recycling can count towards their waste management plan recycling targets in accordance with the Waste Framework Directive (2008/98/EC). LAs operating DCFs, and any appointed third-party contractors, must comply with the Department for Business, Innovation and Skills ‘Code of Practice for the Collection of WEEE from DCFs’, published July 2010. Although the code encourages agreements with organisations specialising in refurbishment and reuse of WEEE, DCF operators have a responsibility to ensure that such items go to organisations that have the necessary capabilities to guarantee that reuse occurs. The code makes it clear that LAs remain responsible even where the day-to-day running of a DCF is in the under the control of a contractor.

DCF operators must not carry out any form of treatment, including dismantling or removal of parts such as doors and cables, unless they have a permit for their site from the EA as an approved authorised treatment facility (AATF). Any DCF operators intending to export WEEE to sites outside Europe also need approval from the EA. Such approval can be refused or revoked if the particular site does not meet the European standard of employing ‘best available treatment, recovery and recycling techniques’. This is intended to prevent DCF operators and other parties circumventing the European rules on WEEE treatment by exporting goods to countries where WEEE is not regulated. Where exporters or DCFs give false information to obtain export approval, they can face criminal sanctions under the WEEE Regulations.

Monitoring and penalties introduced for Welsh recycling targets

The ‘Recycling, Preparation for Re-use and Composting Targets (Monitoring and Penalties) (Wales) Regulations 2011’, which came into force at the end of March this year, have introduced monitoring and penalties to ensure that Welsh local authorities (LAs) meet their statutory targets for percentage of municipal waste that must be recycled. LAs must now submit quarterly records to the Environment Agency stating the amount of waste sent for recycling and accepted using the WasteDataFlow system. LAs will be liable to a penalty of £200 per tonne that they fall short and £1,000 for failing to maintain adequate records. It will be interesting to see if England adopts a similar approach as a further ‘stick’ to encourage LAs to increase recycling rates.