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Posted on: 3 December 2018
Environmental Law News UpdateTweet
In this latest Environmental Law News Update, William Upton, Christopher Badger and Mark Davies consider another reminder of the responsibilities of landowners, the government’s response to a recent consultation on the waste sector, and new regulations banning combustible materials on new high-rise homes.
Another reminder of the responsibilities of landowners
On 19 November, Anthony Joyner, owner of several nursery sites in Devon, was fined £3,600 and ordered to pay £5,000 in costs after pleading guilty to knowingly permitting the keeping of controlled waste on land without an environmental permit and in a manner likely to cause pollution of the environment or harm to human health. He was further ordered to pay the Devon and Somerset Fire and Rescue Service £4,250 in compensation.
Mr Joyner had leased part of land he owned and used as a nursery near Totnes to Steven Loveridge and David Weeks who set up ‘Woody’s Recycling’ at the site. In a pattern with which we are all far too familiar, waste (unsurprisingly wood) entered the site, but never left. When Mr Joyner closed the site in early 2016 – Mr Loveridge, who operated the site on a day-to-day basis, having been sent to prison for an unrelated offence – there was approximately 10,000 tonnes of waste wood and approximately 3,000 tonnes of tree stumps left at the site.
Waste transfer notes were obtained by the Environment Agency in the course of its investigation accounting for only 1,075 tonnes of the material, not only leaving a massive shortfall in the provenance of the material on site, but also taking the site above its exemption limit of 1,000 tonnes.
In April 2016 Mr Joyner apparently approached another recycling company to see if it was interested in the waste. The response was reportedly that the wood was of low quality and that it would cost £750,000 to remove. Mr Joyner was being paid a monthly rent of £1,500 by Messrs. Loveridge and Weeks.
On 16 May 2016 the Environment Agency received reports of a massive fire at the site, which lasted for 5 days and covered an area the size of a football pitch. Joyner apparently himself admitted having moved the waste wood around the site despite the risk of combustion.
Now, this is not a case where an otherwise innocent landowner has been left to pay whilst the real actors have got off scot-free; Loveridge received a 6-month prison sentence after pleading guilty and Weeks was fined £9,553 and ordered to pay £1,767 in costs, but the point would be this: having received £1,500 a month in rent, if the true cost of the removal of the material was in fact £750,000, what was Joyner to do? His case provides a reminder that landowners who rent out space for others to conduct waste activities must be vigilant as to the true nature of the activities taking place on their land.
In this case, the criminal conviction is not the end of the matter for Mr Joyner with the Environment Agency apparently taking ongoing action against him this month regarding the clearing up of the site. Recalling the recent independent review into organised waste crime (covered in this blog here) that suggested that waste producers should be held accountable for the end destination of their waste products, including a requirement that they contribute to the clean-up, it may be considered that this case provides a further reminder of the pressing need for reform in this area.
The Government press release regarding Mr Joyner’s case may be read here
Government publishes response to consultation on the waste sector
On 26 November the Government published its response to a 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’.
It is now intended to amend the Environmental Permitting (England and Wales) Regulations 2016 to require all regulated facilities that undertake waste operations to be managed and operated in accordance with a written management system, which identifies and minimises the risks of pollution arising from the waste operation. Environmental permits issued since 2008 already include this requirement, but there are at least 2000 operating without this condition.
It is also intended to amend the Environmental Permitting Core Guidance to widen the scope of offences, behaviour and relevant persons that the regulator can take account of when assessing competence.
Further legislation will be introduced to clarify the legal requirement for technical competence and introduce a de-registration system for technical competence.
DEFRA is committed to reforming the exemption system and are further considering the impacts of proposed changes.
The Government will also consult on specific financial provision options in 2019, with the aim to include that in the same legislation. Financial competence checks will be able to be carried out at any time. There was a divergence in views as to whether financial provision should apply to all waste site operators (mainly advocated by local authorities and individuals), or just high risk operators (as advocated by the waste industry). We can anticipate that the Government will be keen not to impose an unnecessary burden on operators through the requirements of financial provision, as well as considering allowing operators to be able to choose the particular financial provision mechanism with the regulator.
Fixed penalty notices will also be introduced for breaches of the household waste duty of care, to provide authorities with an alternative enforcement option to prosecuting offenders through the courts. There will also be a supplementary consultation on updating the Waste Duty of Care Code of Practice to provide more detail on meeting the household waste duty of care and new guidance for local authorities in England on the use of the FPN.
The Government’s response can be found here
Bringing down the cladding
Last week the government finally announced it was introducing new regulations “banning combustible materials on new high-rise homes” and “giving support to local authorities to carry out emergency remediation work”.
The easier part has been to amend the Building Regulations so that materials used in building work which become part of an external wall, or specified attachment to it, of a relevant building are of the necessary European Classification standard. This is intended to cover the external walls of new buildings over 18 metres containing flats, as well as new hospitals, residential care premises, dormitories in boarding schools and student accommodation over 18 metres. New Building (Amendment) Regulations 2018 (SI No. 1230) have been laid before Parliament and will come into force on 21st December 2018.
The more difficult part, and one which is limited to work carried out on private residential buildings, is to empower the local housing authorities to carry out emergency work in order to remove unsafe aluminium composite material (ACM) cladding and recover the costs from building owners. This has been done by amending the guidance given in the “Housing Health and Safety Rating System” (HHSRS) used by the local housing authorities under the Housing Act 2004, and the expectation is that the LHAs will use their enforcement powers under that Act.
It is revealing that the change is to the risk assessment required. The Building Regulations are an example of ‘black letter’ law that give clear and precise regulatory requirements. By contrast, the HHSRS is not in itself a standard. It relies on the informed professional judgements of both of these to provide a simple means of representing the severity of any dangers present in a dwelling. Up until now, the HHSRS Operating Guidance did not specifically cover assessment of cladding. It predominantly focused on assessing the risk of hazards within individual dwellings, rather than assessing the common parts of the building, including the exterior of building. In other words, the change is being made to the statutory guidance to the same risk assessment tool that was in place when the refurbishment of Grenfell Tower was designed, built and approved.