Proposed revisions to the waste exemptions from environmental permitting

Defra, the EA and the Welsh Assembly are reviewing the waste exemptions from environmental permitting with the aim of providing a more risk-based, proportionate approach. The consultation contains draft regulations that include a number of proposed measures intended to maximise the use of exemptions for low-risk activities and restrict their availability for higher-risk operations through the use of Standard Permits. The proposals, if implemented, will bring many activities that are currently exempt from the requirement for an environmental permit within the permitting regime. The consultation closed on 23 October 2008, and it is expected that the new scheme will be implemented in October 2009.

Redefining waste for land development

In consultation with the EA, the development industry group CL:AIRE has introduced a Code of Practice (CoP) meant to introduce clarity with regard to when material will constitute ‘waste’ when used for land development purposes. The basic principle is that if materials are dealt with in accordance with the CoP, the EA will not consider them to be ‘waste’. It will be for the holder of the material to decide whether the CoP has been met, and to self-declare compliance with the CoP to the EA. Compliance will be subject to a system of random auditing by the EA.

Conspiracy charges successfully used to prosecute waste offences

The EA has successfully used a conspiracy charge for the first time to prosecute two fly-tippers. A conspiracy charge under section 1 of the Criminal Law Act 1977 was used instead of a prosecution under the Environmental Protection Act 1990 for tactical reasons to enable the court to assess the full extent of the offences. The fly-tippers, who were making around £1.2 million per year from the enterprise at the time of the incidents, were jailed for a total of 36 months.

Agreement on the revised Waste Framework Directive

The European Parliament and EU environment ministers have approved a deal to amend the Waste Framework Directive. The changes will establish general recycling targets for member states, enshrine the five-step waste hierarchy into EU law and introduce a definition of by-products that will remove some materials from the definition of waste and the regulatory regime that accompanies it. Importantly, changes will not incorporate minimisation targets. It is anticipated that the final text will become law by the end of 2008 with member states having two years to implement the changes.

Landfill tax applicability restricted by the Court of Appeal

In the case of Commissioners for Her Majesty’s Revenue and Customs vs. Waste Recycling Group [2008] EWCA Civ 849, the Court of Appeal concluded that materials used by a waste company as daily cover or to build roads on a landfill site are not subject to landfill tax. The case centred upon the four-limbed definition of ‘taxable disposal’ under section 40 of the Finance Act 1996. The court decided that there is no principle that material once labelled as ‘waste’ is always ‘waste’ just because the original producer threw it away. In this case, the court decided that the retention and use of waste material by a company for its own purposes did not constitute an intention to ‘dispose’ or ‘discard’ of the material. This case may be very useful to certain operators, for example those using waste on their sites for construction purposes.

Public nuisance and personal injury damage

In the case of Corby Group Litigation vs. Corby Borough Council [2008] EWCA Civ 463, the Court of Appeal decided that it is still possible to claim personal injuries
in public nuisance. The case involved a group of claimants born with upper limb deformities. They alleged that their mothers had been exposed to toxic materials while
pregnant as a result of a reclamation programme that involved the transportation of heavily contaminated waste. The court decided that a public nuisance claim (which does not require negligence to be proved) may still be used to claim personal injuries, despite the fact that a claim for personal injuries may not be brought under private nuisance.

New Batteries Regulations in force

On 26 September 2008, the Batteries and Accumulators (Placing on the Market) Regulations 2008 came into force. These Regulations aim to maximise the separate collection and recycling of spent batteries and accumulators, and to reduce their disposal in municipal waste streams. The requirements are more stringent under the new regime, with the introduction of a partial ban on nickel-cadmium batteries and staggered
collection targets.