environmental legal update
TRANSCRIPT
Environmental Law
Update Emma Tattersdill
Partner, Freeths LLP and
Victoria Teece
Solicitor, Freeths LLP
www.emlawshare.co.uk
Introduction
• From a Local Government background
having worked at Charnwood Borough
Council for 3 years prior to joining Freeths.
• Environmental law including all aspects of
environmental permitting and regulation,
environmental enforcement and
environmental constraints within the
planning regime.
• Advising on information governance
including data protection and freedom of
information and all aspects of regulatory
services.
• Over 19 years experience.
• Emma regularly advises local authorities on
a wide range of environmental matters,
including all aspects of environmental
regulation and permitting, environment and
planning, and environmental constraints.
• Extensive experience of defending the
decisions of public bodies in judicial review
proceedings and statutory appeal
processes.
Emma Tattersdill, Partner Victoria Teece, Solicitor
www.emlawshare.co.uk
Timetable and Topics
9.45 am - Part 1
• General waste overview
• Litter strategy
10.30am - Part 2
• Update on Fixed Penalty Notices
Break 11am – 11.15am
• Waste packaging
• Bin offences
• Fly tipping
12pm - Part 3
• Statutory Nuisance
12.45pm – Any further questions
1pm - Lunch
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Part 1
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Waste overview - Enforcement and
responsibilities of councils
1. County councils are responsible for waste management.
2. District, borough and city councils are responsible for, rubbish
collection and recycling.
3. Parish, community and town councils have the power to issue
fixed penalty fines for things like, litter, graffiti, fly posting and
dog offences.
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Waste overview - enforcement and
responsibilities of councils
R v Recycled Materials Supplies Limited [2017] EWCA CRIM 58
• The Court of Appeal clarified the regulatory functions of local
authorities and the Environment Agency.
• Held that the LA authority had no jurisdiction within the provisions
of its permit to regulate waste operations unless it was a Part B
activity: crushing bricks, tiles and concrete.
• Dual regulation is discouraged.
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Waste overview - Litter Strategy for England 2017
• The Government’s Litter Strategy for England (1st April 2017)
summarises the importance of England’s move towards a cleaner
and healthy environment, and ways to work with local authorities to
do this.
• The Litter Strategy for England summarises the need for stronger
enforcement against offenders and the improvements to be made to
councils’ responsibilities and powers.
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Waste overview - Litter Strategy for England 2017
This has been done through the introduction of:
1) giving powers to local authorities to fine vehicle owners where
litter is disposed from a vehicle, under the Littering from
outside London (Keepers: Civil Penalties) Regulations 2018
(in force since 1st April 2018)
2) updated guidance on promoting proportionate enforcement by
councils. This also includes increasing transparency in the
reporting of enforcement actions taken to create a deterrent for
any future offence.
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Waste overview - Litter Strategy for England 2017
• The strategy stresses the need for councils to collaborate with Highways
England to work towards litter clearance on the strategic road network.
• Further elements in the Strategy also include proposals to commission an
assessment of road cleanliness by local authorities. Following which:
- underperforming local authorities will have to improve their road cleanliness.
- Local Authorities not fulfilling their duties will have responsibilities reallocated
and the costs will be recovered from that council.
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Waste overview
• Modification to the Code of Practice on Litter and Refuse: Guidance
on effective enforcement (April 2018):
- Update in the Code in relation to changes to the fixed penalty levels from
the introduction of various legislation.
- To boost public confidence it is essential that enforcement staff are
regularly trained.
- New guidance on proportionate enforcement with the emphasis placed
on:
1) Fixed penalties not be used to generate income
2) Powers should be used fairly, so as to work as a deterrent and engage
with the public
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Dog Control Orders and PSPOs
• Under the Anti-social Behaviour Crime and Policing Act 2014
(ASBC&PA) existing Dog Control Orders automatically transition
to become Public Space Protection Orders (PSPO)
• Any Dog Control Orders in force on 20th October 2017 will be
treated as if the provisions of the existing order were provisions
of a PSPO made under the ASBC&PA
• PSPOs can have effect for a period of not more than 3 years but
can be extended more than once, with maximum period for each
extension of 3 years
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Litter Campaigns
• Love Essex is an award winning litter campaign run by the Cleaner
Essex Group, made up of Essex local authorities and local business
partners.
• The campaign aims to remind people that littering is a criminal
offence.
• In the areas monitored, and independently verified by Keep Britain
Tidy, figures showed an average drop in litter of 43%.
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Litter Campaigns
• Campaigns have appeared on bus shelters, petrol pumps and
refuse vehicles across Essex.
• Campaign messages were also reiterated in and around 86
McDonald’s and 15 KFC restaurants in Essex, Kent and Suffolk
helping to reduce branded fast food litter by 63%.
• The Cleaner Essex Group also used social media to spread the
campaign’s messages to 2.4 million social media accounts.
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Love Essex Litter Campaign
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Litter Campaigns: Discussion
• Does your local authority have a litter campaign?
• If so, what elements have you found to be most successful?
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Part 2
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Update on Fixed Penalty Notices
• Environmental Offences (Fixed Penalties) (England) Regulations 2017
• In force since 1st April 2018.
• Increasing the level of fines under fixed penalty notices for various
environmental offences to be imposed upon persons/organisations as an
alternative pursing criminal prosecutions.
• Increased uniformity with other offences such as fly tipping and dog fouling.
• See handout for the list of FPN’s
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Update on Fixed Penalty Notices
• Littering from outside London (Keepers: Civil Penalties) Regulations
2018 (in force since 1st April 2018)
- Penalty charge notices issued to the keeper of a vehicle when the council
has reason to believe that litter was thrown from that vehicle on the council’s
“relevant land” as determined under s.89 of the Environmental Protection
Act (EPA) 1990.
- A penalty charge can be appealed.
- The civil penalty notice can be set at the same level as local fixed penalties
for littering offences.
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Update on Fixed Penalty Notices
Littering from outside London (Keepers: Civil Penalties)
Regulations 2018:
• Public service vehicles, taxis and private hire vehicles are exempt
from liability for a civil penalty notice if the offence is committed by a
passenger.
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Waste packaging
• 25 Year Environment Plan published on 11th January 2018:
- Encourages clean water, minimising food supply chain emissions and
waste, i.e. sustainable use of resources.
- Strategy is to apply best practice in education, enforcement and
infrastructure to reduce and aide the above.
- Government is to collaborate with the Waste and Resources Action
Programme (WRAP), businesses, LA’s etc. to create a new plastics
economy where plastic is valued and doesn’t become waste.
- WRAP has been working with LA’s to demonstrate how the Framework for
Consistency 2016 in household waste can help in the use of more
recyclable materials.
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Bin offences
• Waste Collection Authorities are responsible for waste collection
(including recyclable waste) under sections 45-48, of the EPA 1990.
• Waste Collection Authorities are local district or borough councils
that are responsible for bin and household waste recycling
collections.
• Since 15 June 2015, it is no longer an offence to incorrectly present
household waste for collection, LAs can only issue an FPN,
following a formal warning, provided that a s.46 notice has
previously been served on the occupier.
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Fly tipping
Waste Deposit Offences: S.33(1) of the EPA 1990
• a person shall not—
(a) deposit controlled waste, or knowingly cause or knowingly permit
controlled waste to be deposited in or on any land unless an environmental
permit authorising the deposit is in force and the deposit is in accordance
with the permit;
(b) submit controlled waste, or knowingly cause or knowingly permit
controlled waste to be submitted, to any listed operation unless in
accordance with an environmental permit;
(c) treat, keep or dispose of controlled waste in a manner likely to cause
pollution of the environment or harm to human health.
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Fly tipping
Waste Duty of Care offences: s.34 of the EPA 1990
Waste holders statutory duty of care regarding waste
• Fail to take reasonable measures to:
1. prevent a person committing a s.33 offence;
2. prevent the escape of the waste from his, or another persons control;
3. ensure that waste is transferred to an authorised person or to any person
for authorised transport and fail to ensure that person is provided with a
written description of the waste.
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Fly tipping - Penalties
• S.33 Offences
• Magistrates’ court: Committed on or after 12 March 2015: Maximum 6 months in prison, an unlimited fine or both.
• Crown Court: Maximum 5 years in prison and/or an unlimited fine.
• Other costs
• Fixed penalty notice: Between £150 - £400 (£200 where no amount specified)
• S.34 Offences
• Magistrates’/Crown Court: Unlimited fine
• Fixed penalty notice: £300 (this does not include householders).
• Search and seize vehicles
• Other costs
Sentencing guidelines
• https://www.sentencingcouncil.org.uk/wp-content/uploads/Final_Environmental_Offences_Definitive_Guideline_web1.pdf
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Fly tipping – Recent updates
• Serious and organised crime in the waste sector: Call for
Evidence: launched on 10th June 2018 and questionnaire closed
on 8th July 2018.
- Michael Gove‘s review is to tackle waste crime, in particular fly
tipping.
- A review of how the Environment Agency, LAs and other
organisations can tackle fly tipping, operation of illegal waste sites,
and prevent the use of sites to conduct other activities such as
human trafficking, fraud, supplying drugs and firearms, and money-
laundering.
- It is due to be completed by September 2018.
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Fly tipping – Recent updates - Consultation
• Consultation on proposals to tackle crime and poor
performance in the waste sector & introduce a new fixed
penalty for the waste duty of care.
• Consultation was held from 15 January 2018 to 26 March 2018.
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Fly tipping – Recent updates – Consultation
• Key points put forward in the consultation:
1. Working towards improving householder awareness on
their waste duty of care and how to check if a carrier is
licenced.
2. Proposals to introduce new FPN for household duty of
care offences for fly tipping (circa £200)
• To reduce prosecution costs and give more flexibility
to be proportionate
3. Limit use of FPNs for first offence
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Fly tipping – Recent updates - Consultation
• Consultation responses were published on 3 July 2018
• 57% agreed that there was a need to improve householders
awareness of their duty through campaigns and perhaps separate
simple guidance or improvements on the current Code of Practice
on householder duties.
• 88% thought that an FPN would help tackle fly tipping provided that
there was enough awareness.
• 72% agreed that the level of the fine should be £200.
• 95% agreed that following the implementation of the use of FPNs,
reports on the use should be communicated publicly.
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Case study
• What enforcement options are available to the LA in the following
scenarios:
1. Taxi driver throwing litter from their taxi vehicle;
2. Taxi passenger throwing litter from the vehicle;
3. Passenger throwing litter from a private vehicle;
4. Driver throwing litter from a private vehicle.
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Part 3
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Statutory nuisance
s.79(1) EPA 1990: nine categories of statutory nuisance (England & Wales)
1. the state of premises
2. smoke from premises
3. fumes or gases from premises
4. dust, steam smell or other effluvia arising on industry, trade or business premises
5. any accumulation or deposit
6. any animal kept in such as place or in such a manner as to be a SN
7. insects emanating from industrial, trade or business premises
8. artificial light from premises
9. noise from premises or from a vehicle, equipment or machinery in the street
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Statutory nuisance
Two limbs under s.79 EPA 1990:
• Prejudicial to health; or
• A nuisance – unacceptable interference with comfort or amenity of
neighbours or nearby community
- Extent and impact
- Time, frequency and duration
- Location/character of area
- Importance/ value of activity to the community -v- difficulty in
avoiding its effects
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Statutory nuisance
Responsibilities of LA’s include:
• Duty to inspect for statutory nuisances.
• Duty to issue an abatement notice:
“where a Local Authority is satisfied that a statutory nuisance exists,
or is likely to occur or recur… the Local Authority shall serve an
abatement notice.” (s80(1) EPA 1990)
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Statutory nuisance: practical tip
At the point of issue, be prepared for an appeal of the abatement
notice.
Fully document the evidence of nuisance:
• All relevant factors – not just the extent and impact of matters
complained of
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Statutory nuisance: best practicable
means
Ground of Appeal against abatement notice; defence to prosecution
• State of premises; dust steam etc; accumulation or deposit; animals;
insects; noise from premises
- Only available where premises used for industrial, trade or business
purposes
• Artificial light – only where premises used for industrial, trade or
business purposes or lighting for outdoor sports facility
• Smoke – only where emitted from a chimney
• Not available in cases relating to fumes and gases
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Statutory nuisance – discussion
• The EHO has concluded that a statutory nuisance exists but that
the person responsible has adopted “best practicable means”.
Do you issue an abatement notice?
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Statutory nuisance: common questions
(1) Withdrawal of an enforcement notice:
• No express power
• Woods v Sevenoaks DC [2004] EQHC 15 11
- High Court: abatement notice may be withdrawn at any time
(2) Relationship with environmental permitting
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Statutory nuisance - updates
The agent of change principle: draft revised National Planning Policy
Framework (NPPF)- published March 2018 (Para 180)
Planning policies and decisions should ensure that new development
can be integrated effectively with existing businesses and community
facilities (including places of worship, pubs, music venues and sports
clubs). Existing businesses and facilities should not have unreasonable
restrictions placed on them as a result of development permitted after
they were established. Where an existing business or community
facility has effects that could be deemed a statutory nuisance in the
light of a new development (including changes of use) in its vicinity, the
applicant (or ‘agent of change’) should be required to secure suitable
mitigation before the development has been completed.
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Statutory nuisance: our recent experience
• Existing community sports facilities
• Potential for new residential development to be affected by noise
from those facilities
• Planning condition requiring new development to incorporate
noise mitigation measures – to protect amenity of new residents
and to protect ongoing activities of existing community
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Environmental Bulletins
• Our quarterly bulletins are available online, our most recent one
is here: http://www.freeths.co.uk/2018/04/19/environmental-
bulletin-spring-2018/#
• If you would like us to send you our environmental bulletins by
email, please let us know.
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Any questions?
Vicki Teece
Tel: 0845 272 5732
Emma Tattersdill
Tel: 0845 077 9560