Monthly Archives: May 2018

A salutary lesson for any landowner tempted to turn blind eye to tenant’s activites

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Landowners’ liability for occupiers’ abandoned waste

Shoosmiths LLP
Angus Evers
Joanne Sear
United Kingdom May 25 2018

An unsuccessful appeal by a landowner against a conviction for knowingly permitting an unauthorised waste operation on its land has highlighted the risks to landowners of incurring criminal liability if former occupiers abandon waste on their land.

The High Court has recently clarified the circumstances in which landowners can face criminal liability for waste abandoned on their land by former occupiers. Commercial landlords need to be aware of the risks and consider how they might be minimised, because the judgment imposes virtually strict liability on landowners in circumstances where occupiers cease trading and abandon waste on their land.

Background

Salhouse Norwich Ltd owned a site in Norwich, which it leased to a mattress recycling business. The business did not have an environmental permit or a waste exemption. In August 2015, the Environment Agency served an enforcement notice on the tenant, requiring it to remove the mattresses. The tenant didn’t comply, and ceased trading, abandoning over 20,000 mattresses (weighing 471 tonnes).

The mattresses remained on the site after the tenant ceased trading. Salhouse Norwich proposed a remedial plan to attempt to clear the site, but the Environment Agency rejected it and charged Salhouse Norwich with the offence of knowingly permitting the storage of waste without an environmental permit. One of Salhouse Norwich’s directors was also charged in a personal capacity, because the company was said to have acted with his consent or connivance, or the offence was attributable to his neglect.

Both Salhouse Norwich and the director were convicted in the Magistrates’ Court, receiving a fine and 150 hours of unpaid community work respectively. They both appealed.

The appeal

On appeal, the High Court upheld the convictions and found that Salhouse Norwich and the director were guilty because:

  • the continued presence of the mattresses on the land after the tenant abandoned them amounted to a waste storage operation; and
  • they had known that the mattresses were present on the land, but had failed to ensure their removal.

All the Environment Agency therefore needed to prove was that Salhouse Norwich and the director knew that the mattresses were present on the land and had done nothing to prevent them being there. There was no need to prove any positive act by them.

What does the case mean for landowners?

The judgment is a harsh outcome for landowners, as it seems to require them to take positive action to clean up their land if former occupiers abandon waste on it. Once they are aware of the presence of a former occupier’s waste on their land, they are guilty of knowingly permitting an illegal waste storage operation if they do nothing to remove it.

In addition to or instead of prosecuting for carrying out illegal waste operations without a permit, the Environment Agency, Natural Resources Wales and local authorities have powers to serve notices on landowners requiring the removal of waste when it has been illegally deposited or illegally stored on land. Failing to comply with such a notice is also an offence. As highlighted in our March 2018 update ‘Imminent changes to waste rules – it’s not all rubbish‘, these powers have recently been extended significantly, and the position now is that a landowner can also be served with a notice requiring it to remove waste when the waste was deposited with legal authority but where that authority has expired, when the occupier cannot be found, or when the occupier was served with a notice but didn’t comply with it. Landowners can also be charged landfill tax if they knowingly permit the illegal deposit of waste on their land.

Our experience is that, where possible and practicable, regulators will pursue occupiers in preference to landowners. However, regulators will look to landowners to make up the shortfall where an occupier has disappeared or become insolvent.

Before allowing a third party such as a tenant or licensee to occupy its land, a landowner should carefully consider the nature of the occupier’s business and whether it involves waste. If it does, the landowner should ask:

  • Are the necessary environmental permits and planning permissions in place for the occupier’s proposed use of the land?;
  • Is the occupier’s business established and reputable?;
  • Is the occupier’s business financially solvent?

If the answer to all of these questions is yes, then the risk of the occupier disappearing and abandoning waste is reduced. Prevention in these circumstances in better than a cure.

Stone and Salhouse Norwich Ltd v Environment Agency [2018] EWHC 994 (Admin)

Shoosmiths LLP – Angus Evers and Joanne Sear

Private approved inspectors ‘insulted’ by Hackitt report

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Copied from Building Magazine

By 23 May 2018

 

grenfell

Inspectors offended by recommendation in report that they be excluded from high-rise residential

Private approved inspectors have said the recommendation in last week’s Hackitt review that they be excluded from providing building control services on high-rise residential buildings is “unacceptable in a public report”.

Paul Wilkins, the chair of the Association of Consultant Approved Inspectors (ACAI), which represents the profession, said its members were “insulted and highly offended” by the report’s implication they would approve sub-standard work in order to get the next job.

He added: “To have their professionalism and ethics questioned in this way, with no evidence, has the potential to damage reputations and is unacceptable in a public report.”

Wilkins plans to write to Dame Judith Hackitt to ask for the evidence that approved inspectors accepted lower standards of workmanship.

More piecemeal environmental policy making on the horizon?

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Incineration tax could boost plastic recycling

Ben Webster, Environment Editor

The Times

Waste companies find it cheaper to burn rubbish than recycle it
Waste companies find it cheaper to burn rubbish than recycle itTIMES PHOTOGRAPHER RICHARD POHLE

A new tax on waste incineration is being considered by the government to help increase recycling of plastic and reduce the amount that ends up in the ocean.

Waste companies would have to pay a tax on every tonne of plastic they burn to encourage them to invest in new technologies that can turn plastic packaging into new products.

Less than half of plastic packaging is recycled and some types, such as plastic films and black plastic trays, are almost always incinerated or sent to landfill.

In the past five years the landfill tax has halved the proportion of waste collected by local authorities and buried in the ground to 15.7 per cent.

However, over the same period, the amount sent tax-free to incinerators has doubled to 10 million tonnes while the recycling rate has hardly changed.

Waste companies find it cheaper to burn waste than recycle it, partly because of the difficulty of separating different types of plastic but also because of lack of investment in the latest recycling equipment.

A Treasury consultation on using taxes and charges to tackle plastic waste closed yesterday and Robert Jenrick, the exchequer secretary, said an incineration tax was one of the options being considered.

Mr Jenrick said: “A number of submissions have advocated a tax on the incineration of waste. There is an argument for changing the incentives to discourage putting further waste to incineration. We would like to see less plastic incinerated, sent to landfill or exported and more recycled.”

He said the Treasury was also considering how the tax system could encourage manufacturers to use plastics that were easier to recycle and make products from recycled plastic.

Mr Jenrick confirmed that the government was considering a “latte levy” on disposable coffee cups. He met executives from Starbucks recently and discussed its trial of charging 5p for a disposable cup in 35 stores in London.

Early results suggest that a 5p cup charge is more effective than a 25p discount in getting consumers to bring their own reusable cup to a store. Only about 2 per cent of Starbucks customers claim the discount but this rose to 6 per cent when the charge was introduced.

Are we ready to scrap democracy when it comes to local services and just pay as you go?

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Interesting comment piece lifted from today’s Times (thank you).  It only discusses refuse collections, but should it be applied to every service we receive?  If the public just paid the going rate for the services they receive, with the private sector running things for profit, there would be no need for any political involvement.

Just as you now complain to ‘the company’ when the service isn’t up to scratch, you would then complain to the organisation that runs the refuse collection service, or whatever other service it is.  What response you get, is of course another matter.  After all, the person on the other end of the phone is in a ‘job’, not elected to a seat you can either vote to keep them in, or not.

However, the bigger problem for me with this proposal, is the same as happens whenever you outsource any public facing service – loss of flexibility and control.  Once the private sector get their hands on the contract,mother customer can so easily become the lamb to slaughter when it comes to changing circumstances.  Anything that’s not in the contract comes with a price tag.  There’s nothings wrong with that in itself, after all they are running a business not a charity.

So as long as the public understand that’s how things work and there’s very little politicians can do about it without increasing the budget for the contract, it’s fine.  Unfortunately, the public seldom do and the politicians are therefore get the flak.  The alternative of course, is that the contract ends up being more costly than it needed to be, just to build in the contingency funds needed to cover for the unknown and offer the desired flexibility.  What follows of course is the potential for the contractor to exploit that flexibility whenever the opportunity arises, more often than not to their own ends.

I take particular issue with one of the commentators suggestion.  That having taken away the ability to provide the service to a standard that is universal and consistent for the local community, the council’s role would then become that of enforcer against those who refused to conform to the new arrangement and in fact chose to save money by not disposing of their rubbish often enough.

If nothing else, two things are clear. This gentleman has never been a councillor, he’s a business man first and first foremost with little, or no understanding of the public service ethic.

Dump the idea of council-controlled bin collection, it’s time to privatise

mark littlewood

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Pundits and politicians have been seeking to interpret the results of last week’s local elections. This has increasingly involved contorted meta-analyses whereby the challenge is not so much to look at the electoral outcomes themselves, but to compare the tallies with the degree of optimism or pessimism expressed by each party before polling day.

“Expectations management” has therefore become a necessary tool in the armoury of every spin doctor. If your party’s result is mediocre, but you persuaded people it would be pathetic, this is notched up as an electoral triumph. The consequence is that no one seems to agree objectively on who did well and who did badly or what Thursday’s poll means for the national political picture.

In one area, however, there has been an unbreakable consensus. The central explanatory force for many of the results was, apparently, the quality of local refuse collection. “Bin collection is fundamental,” Tom Brake, a Lib Dem MP, asserted in a television interview to knowing nods from his fellow panellists. “This was about bins not Brexit,” insisted Anna Soubry, a Tory MP, without challenge from the BBC’s interviewer. If the English electorate really did cast their ballots in an attempt to optimise the efficiency of the emptying of dustbins, they have acted in a rational, albeit rather narrow, fashion. Our local councils do not have any direct influence on whether we stay in a customs union with the EU, but they are responsible for picking up our rubbish.

What we should be asking is whether we really need refuse collection to continue to be a competence of municipal government at all or whether we can rely on the open market providing a better service. We don’t troop down to a church or school hall every four years to vote on how our council should provide us with an electricity supply or a telephone connection, so why should we entrust them with picking up our bins?

Perhaps this core responsibility of local government has been with us so long that we have become inured against questioning it. The Public Health Act 1875 first made it a legal obligation for councils to empty bins. In 1936, this statutory duty was strengthened to insist collections must be weekly. That specific requirement was relaxed in 1974 and the frequency with which our bins are emptied has continued to be a highly charged campaigning issue. Latest figures show that about 1 million households, and over 2.5 million residents, are forced to accept rubbish collections only every three or four weeks. The proportion of homes receiving weekly collections has fallen by more than a third since the turn of the decade. Many will point to the squeeze on local government financing, but surely improved technologies should be enabling councils to achieve more with less?

On the face of it, there are some credible reasons for refuse collection to be run by the public sector. First, it has the standard features of a natural monopoly. If a dumpster is travelling around a particular district anyway, then the associated costs of picking up all of the rubbish, rather than just from a proportion of residences, is fairly minimal. Second, there are obvious negative externality effects in play. Typically, I don’t much care how my neighbours arrange their household budgets, but if they do start to save money by allowing stinking refuse to pile up in their front garden, then my quality of life is impacted. The key question is whether new technologies and more imaginative public policy can overcome these inbuilt problems and allow a competitive market to solve the problem of collecting and disposing of household waste. The evidence is that they can.

About ten years ago, before the explosion of the gig economy, a research report by the neoliberal Adam Smith Institute concluded that moving to a privatised “pay as you throw” approach would have widespread benefits. Rather than relying on their council tax to pay for local government bin collections, households would pay privately in broad proportion to the waste they generate and the frequency with which it is collected. The report concluded that the impact on incentives would lead to an increase in recycling by 50 per cent, a reduction in the need for landfill of about 16 per cent, a cut in carbon emissions of millions of tonnes a year and a reduction in average bills. With the enhanced ability to transmit and collect data that we now have in 2018, these improvements would be likely to be even greater today.

New technologies could also help overcome fears that some people might be tempted to save money by fly tipping or allowing enormous amounts of refuse to build up before arranging a collection. Households could be charged with a specific minimal legal duty akin to the requirement for drivers to have basic motor insurance. It would be far easier to spot which homes had gone for many weeks without their rubbish being picked up than it would have been a decade or two ago. Councils might still be charged with carrying out appropriate enforcement processes, but this doesn’t mean they should be in control of the practicalities of collecting waste.

In a world in which we can book a taxi or order a takeaway meal and expect delivery within a matter of minutes, we can surely find a way to unleash the forces of the market to find cheaper and smarter ways to handle waste collection and disposal.

Politicians of all stripes have been insisting that a key driver of last Thursday’s vote was the electorate’s approach to “bread and butter issues”. The catchphrase is, of course, a misnomer. Fortunately, our bread and butter are provided through market mechanisms and not by local government bureaucracies. In a more rational world, we would be treating bin collections in the same way.

Mark Littlewood is director-general of the Institute of Economic Affairs. Twitter: @MarkJLittlewood