Waste Enforcement Regulations to put pressure on occupiers and landowners

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Osborne Clarke

United Kingdom March 23 2018

Over the past five months, the government has shown an increasing commitment to cleaning up waste and dealing with waste offenders, most notably through its publication of the Clean Growth Strategy (12 October 2017), the Industrial Strategy (27 November 2017) and the 25 Year Environment Plan (11 January 2018). Whilst these initiatives have been criticised by some for not going far enough or failing to establish concrete obligations or enforcement policies in respect of waste, on 8 March 2018 the Waste Enforcement (England and Wales) Regulations 2018 became law. The Regulations aim to strengthen the powers of environmental regulators to address waste crime in England and Wales.

The Regulations form part of the government’s wider policy intention to tackle waste crime. This is an issue that is also referred to in Chapter 4 of the 25 Year Environment Plan, which highlights the cost of waste crime to taxpayers and the long-term impact of waste on the natural environment. In particular, fly-tipping and poorly managed waste sites lead to problems with fumes, dust, vermin, insect infestations and waste fires, with the latter often causing significant disruption to roads, railways and schools. According to the Environment Plan, the cost to local authorities of fly-tipped waste was £57.7m in 2016/2017, which does not include the additional costs borne by landowners forced to deal with illegal waste disposal.

What do the Regulations do?

As set out in the Industrial Strategy, the government is seeking clean growth as one of its four “Grand Challenges” to boost UK productivity. The government aims to minimise waste by establishing a more circular economy, whereby materials are recycled up the waste hierarchy and are used more efficiently.

To achieve this and reduce pollution, the Regulations provide environmental regulators (the Environment Agency in England and the Natural Resources Body in Wales) with the following new powers:

1. Waste removal

Regulation 2 empowers the regulators to serve notice on an occupier of a property which requires them to:

• remove waste from the property which is being illegally stored, kept or disposed of, within in a specified period of time (of not less than 21 days), including waste that was initially lawfully deposited; and

• take steps (within the above specified period) to eliminate or reduce the consequences of the unlawful keeping or disposal of the waste.

Failure to comply with a waste removal notice (without reasonable excuse) is a criminal offence and is punishable by way of a fine. Additionally, should the offender fail to comply with the waste removal notice, the regulator may remove the waste and recover from the occupier the expenses reasonably incurred in doing so.

2. Restricted access to waste sites

Regulation 3 empowers the regulator to prohibit access to and the importation of waste into a site for up to (i) 72 hours by serving a restriction notice; or (ii) 6 months where the court issues a restriction order, in the following circumstances:

• there is a risk of serious pollution to the environment or serious harm to human health which is a result of the treatment, keeping, deposit or disposal of waste in or on the premises; and

• the notice is necessary to prevent the risk from continuing.

The regulators’ power to restrict access is a significant one and could have a notable impact on the movement of goods and services into and out of waste sites, which could have serious knock-on effects for business.

Failure to comply with a restriction notice is a criminal offence and is punishable by way of a fine or imprisonment for a period not exceeding 51 weeks, or both. Failure to comply with a waste removal restriction order is punishable by either: (i) on summary conviction, to a fine or imprisonment for up to 12 months (or to both); or (ii) on conviction on indictment, to a fine or imprisonment for a term not exceeding two years (or to both).

Impact of the Regulations: cost to landlords

In certain circumstances, as set out below, landlords could find themselves responsible for the cost of removing illegally kept or disposed of waste. Leaseholder and freeholder landlords of sites which house regulated or exempt facilities should be aware that they could be held responsible for unlawful waste on their properties.

The Regulations permit the regulator to serve notice on landowners requiring them to remove unlawful waste if:

• there is no occupier;

• the occupier cannot be found without the regulator incurring unreasonable expense; or

◦ the occupier has failed to comply with a waste removal notice within the specified period.

It will therefore become increasingly important for landlords to ensure that waste obligations are clearly set out in tenancy agreements and that regular property inspections are held. Enhanced scrutiny of a tenant’s financial status should also be considered before tenancies are agreed. This is particularly the case as the powers granted to the regulator by the Regulations are capable of interfering with business practice.

Ahead of the government’s Resource and Waste Strategy, the Regulations come into force on 29 March 2018, with the exception of regulation 2 and certain related transition provisions, which come into force on 8 May 2018.

Osborne ClarkeKiera TaylorMatthew Germain and Caroline Bush

Network Rail has no interest in our traffic issues

Recently the local press published a letter suggesting that South Holland District Council could somehow have required the rail companies to do something other than what they eventually did with the line through Spalding.

I did send the newspaper a response, as the writer did raise a number of valid questions that needed answering.  To date, this has not been published.

Dear sir,

Further to Mr Delve’s letter re traffic grid lock in Spalding being caused by increased use of the rail line. He refers to a rail loop proposal and asks why the council didn’t require Network Rail to build this, rather than carry out the upgrade work that allowed for the increased rail traffic.

If only it were that easy. The ‘rail loop’ he refers to, was in fact a protected corridor identified by the district council in an early plan. Its inclusion was more in hope than anticipation, that the rail company would see the logic in bypassing a town centre with four level crossings and no bridges, at some point in the future.

As the local planning authority, South Holland would never have been under any illusion that it could compel Network Rail to do anything other than the Railways Act allows it to; upgrade the existing line, whatever the impact. Even our encouragement for the development of a Rail Freight Interchange, failed to prompt the company into becoming more engaged.

Since the original upgrade proposals became known to South Holland DC, the council has made every effort to reduce the impact. First in meetings with Railtrack, when proposals included the potential for level crossing closures of up to 40 minutes in the hour. We also looked at the potential for a road bridge on Winsover Road. Then with Network Rail, a company that regrettably, has been somewhat less forthcoming.

We are now working in partnership with Lincolnshire County Council and local developers, to progress the delivery of the Spalding Western Relief Road. This road is one of only four strategic road projects in the county council’s local transport plan.

Working with LCC we successful bid for £12m from central Government, to support major housing delivery projects, a crucial element of Spalding Western Relief Road scheme.

Cllr Roger Gambba-Jones
Cabinet member for Place
South Holland District Council

Ministers’ ‘out of sight, out of mind’ attitude to councils must end

Copied from LG online

All too often the government’s attitude to local government can be categorised as “out of sight, out of mind”. The shadow of Brexit’s cloak of doom obscures most things right now.

However, local government made a high-profile sortie to the front of the collective ministerial consciousness earlier this week – when Sajid Javid and Theresa May lambasted the sector for its apparent failure to ensure homes get built.

While some councils do block too many new homes, scores of headlines relating to “nimby councils” were not a fair reflection of where culpability lies for failure to address the housing crisis. “Land-banking developers” and “ineffective ministers” surely merit far harsher headlines.

In her showpiece housing speech, the prime minister legitimately espoused the benefits of homeownership among the (relatively) young. However, she has become increasingly blind to the plight of more vulnerable younger people. Many have basic unmet needs as a result of austerity.

Warning more top-tier councils could follow Northamptonshire
LGC analysis shows an astonishing 63% of area reviews of special educational needs and disabilities provision undertaken in the past year have uncovered weaknesses. It is not that councils do not regard these services as important, but they simply lack the proper resources to offer the service levels they desire. SEND services, like a myriad of other areas of council provision, are deteriorating due to funding cuts – but the government continues to look the other way.

Ministers need to be a willing to accept responsibility for the tough stuff as they are willing to dole out the blame.

Evidence of the scale of local government’s financial crisis comes today as the National Audit Office reports on the sector’s financial health. The spending watchdog reveals that more than a fifth of top-tier councils are running through their reserves at such a rate that they are set to follow Northamptonshire CC in issuing a section 114 notice within the next five years. Authorities are in an impossible situation, buffeted by rising demand for services on one side and reduced funding on the other.

Councils’ plight is growing ever greater, as is the government’s inability to appreciate the scale of the challenge. In response to the NAO review, a government spokesman trotted out all the usual lines about the recent finance settlement striking “a balance between relieving growing pressure on local government and ensuring hard-pressed taxpayers do not face excessive bills” and how councils are getting “a real-terms increase in resources over the next two years”. The NAO’s research suggests a far more negative picture.

We need more straight-talking honesty from our ministers. They need to be as willing to accept the responsibility for the tough stuff – the devastating impact on services of austerity – as they are willing to dole out the blame.

In something of a breath of fresh air, Ministry of Housing, Communities & Local Government minister Heather Wheeler this week said she would resign if rough sleeping worsens. If her ministerial colleagues are so certain they’re getting the balance right on council funding, they should make similar commitments to resign in the event of a spate of Northamptonshires.

National Planning Policy Framework revisions due any day now – here we go again?

Legal landscape: Let’s hope the revised NPPF can provide much-needed clarity
By Ian Graves

A revised National Planning Policy Framework could bring clarity to planning, says Ian Graves, but he fears government will avoid difficult decisions about green belt and neighbourhood planning.

Six years since the introduction of the National Planning Policy Framework (NPPF), which saw 1,300 pages of planning regulations condensed into just 65, the government has confirmed its intention to publish a consultation draft of the revised framework this spring. The review will be welcomed by planners, developers and local authorities.

A lot has changed since 2012 and it’s time for national planning policy to catch up. The proposals in last year’s white paper Fixing Our Broken Housing Market, the written ministerial statements on small sites and housing land supply, and the growth of neighbourhood planning all need to be integrated into the framework.

The revised NPPF will no doubt also be a key tool in the government’s efforts to fulfil its pledge to deliver a million new homes by 2022. This is the chance for the government to have its say on contentious issues surrounding the interpretation of the current NPPF. Is the presumption in favour of sustainable development really intended to be a ‘golden thread’ running through the whole of the framework, or just paragraph 14? What are “relevant policies for the supply of housing”?

Interpretation has thus far been left to the courts, but it is now time for the government to let us know its views and intentions. The hope is that doing so will bring much-needed clarity – although, of course, some may say that a revised document will merely bring another round of arguments about what those new policies really mean.

“Many of the most sustainable locations for new homes to be built are in fact within green belt land”

A major change is likely to be the introduction of a standard methodology for the calculation of objectively assessed housing need, following the government’s consultation late last year.

The adoption of a standard method will introduce a new level of predictability, transparency and certainty to the process, which many will see as desirable. Certainly, the current system whereby individual local authorities can choose how to estimate housing need isn’t working.

However, many commentators have suggested that the method proposed by the government will lead to large regional disparities in objectively assessed need, with big increases in the South East and reductions in some parts of the North.

It also doesn’t appear that local authorities will be obliged to plan for the full figure arising from the new methodology, with the indication being that some sort of cap on any increase in housing numbers over that in the current plan is likely.

One issue that seems unlikely to be addressed is the contradiction in policy between the focus on increasing the numbers of houses being built and the supposed ‘strong focus’ on maintaining protection for the green belt. There seems little acknowledgement from ministers that a more sensible policy on the green belt is necessary if the housing crisis is to be tackled.

Many of the local authorities experiencing the greatest demand for housing also find themselves constrained by large areas of green belt. Many of the most sustainable locations for homes to be built are in fact within green belt.

The answer should lie in a sensible reappraisal of the function and purpose of the green belt, together with a limited release of suitable land for development. Sadly, politics seems to have trumped economics on this issue.

Similarly, the contradiction between the expansion neighbourhood planning and the imperative to increase housing numbers is also set to deepen. Although the government claims that neighbourhood development plans boost housing supply, many in the development industry are sceptical.

Those with direct experience often find that the effect is to stymie rather than encourage the building of homes. Continuing to increase the importance of neighbourhood plans is likely to exacerbate that effect.

We can only hope that the government chooses to take the bull by the horns and address some of these long-standing issues. An update to national policy is sorely needed. The development industry will be watching and waiting with interest.

Ian Graves is a legal director in the planning team at law firm Shakespeare Martineau