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

Landowners’ liability for occupiers’ abandoned waste

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)

Private approved inspectors ‘insulted’ by Hackitt report

Copied from Building Magazine

 

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.

Investigation: why so many boilers froze this winter — and who is to blame for this cold-snap scandal

This is a worthwhile story in itself, becuase I suspect a lot of householders might not be aware of this simple fix, along with the shortcoming in their boiler installation.

However, that’s not the main reason for copying this item from the Sunday Times.  Towards the bottom of the article, there’s the following paragraph:

‘In response to The Sunday Times, the Ministry of Housing, Communities and Local Government said that rules published in 2005 make clear that “any external condensate pipework must be insulated to minimise the risk of freezing”. It stated that it is the job of local authorities to apply building regulations and inspect installations.’

Assuming that the last statement is accurate, it shows a remarkable lack of understanding by MHCLG, of even the basics of how the building control system works in England.  So, just for their benefit.

A brief history of Private Building Control
Back in 1984, a body called the Construction Industry Council (CIC) was formed to allow the privatisation of Building Control. This central government organisation regulates Private Building Control and approves inspectors to carry out this role.
The first company to gain CIC approval was the National House Building Council (NHBC) in the 1990s. There are now more than 150 companies nationwide who offer Building Control services for residential or commercial properties.
What’s the difference between Private and Local Authority Building Control?
Your Local Authority is a non-profit organisation, so it is likely to charge less than Private Building Control. On the other hand, if you can pay a bit more for Private Building Control, you get a dedicated inspector for your project.
When taking a straw poll of other surveyors, many seem to agree that the Local Authority Building Control officers have a reputation for being more independent and thorough; for instance, with more on-site inspections than Private Building Control. Contractors may understandably prefer the ‘lighter touch’ of the latter, which can mean fewer and less thorough inspections. This can give obvious advantages to contractors but may not be in the best interests of the client.  
Reference:  http://www.grumittwade.com/private-building-control-local-authority-building-control/

Copied from Sunday Times on line

Investigation: why so many boilers froze this winter — and who is to blame for this cold-snap scandal
Bruce Millar and Jonathan Leake. April 1 2018, 12:01am,
The Sunday Times Home and garden
The flow never bothered me anyway… Unless you want to live in an ice palace, you might want to insulate your pipework
The flow never bothered me anyway… Unless you want to live in an ice palace, you might want to insulate your pipework

A simple plumbing problem left tens of thousands of households without heat and hot water when temperatures plummeted last month — just when the nation needed them most. The issue? The intense cold froze water in pipes that drain condensation from boilers — which then automatically switched off in their droves.

Cue no heating or hot water… but white-hot anger. At the peak of the cold spell, on March 1, the gas emergency helpline — which is supposed to be reserved for serious concerns such as gas or carbon monoxide leaks — received 40,000 calls in a single day.

Plumbers were the main beneficiaries. The London firm Pimlico Plumbers, owned by Charlie Mullins, the high-profile Tory donor and anti-Brexit campaigner, did record business, taking 25,485 calls in the peak week and making 900 visits on the busiest day, at charges ranging from a minimum of £100 to £220 for callouts after midnight. All of this helped the firm to earn £4m last month — £1m more than in March 2017.

It happened to one of us, too — and to about 10% of the parents in my son’s year at school, Bruce writes. When I battled home through the snow from work, I found the boiler switched off and the radiators fast losing their heat. I cursed and called a local plumber, whose automatic message informed me that demand was high, and asked me to call back when the weather had cleared.

I then spent £20 registering for an online plumbing advice line, but there was a backlog of queries. Finally I checked the website of my boiler’s manufacturer, Vaillant, which told me how to solve the problem.
The remedy turned out to be simple. In most cases, it is sufficient to pour hot (but not boiling) water on the frozen pipe, wait for the blockage to thaw out, then reset the boiler, which will fire up automatically. Being left without heat and hot water in the coldest weather is uncomfortable and distressing, expensive if callout fees are involved, and potentially dangerous. Ahead of the “big freeze” of 2010, the Department of Health and Social Care forecast as many as 30,000 additional deaths.

Has your boiler broken because of frozen pipes? Share your story

What is scandalous in 21st-century Britain is that this commonplace problem is predictable, unnecessary — and completely avoidable. Indeed, for the plumbing trade, it has become a regular cold-snap cash windfall.

Pimlico Plumbers, for example, noticed the red warning weather forecast , cancelled all leave and booked local accommodation so it could handle callouts around the clock. “It was stressful, but great for business at the same time,” one member of staff said.

Exactly the same problem with frozen condensate pipes was reported following icy spells in 2010 and 2014; on the second occasion, the British Standards Institute tightened up its guidelines to stress that: “Insulation does not give complete protection if the temperature continues at or falls further below freezing point. Consideration should be given to fitting a frost thermostat, which should be set to operate at a temperature of approximately 4C.” The institute can only make recommendations, however; it has no regulatory power.

Following pressure from The Sunday Times, a clearly embarrassed industry called an emergency “summit” last week to thrash out a unified response. Hosted at the headquarters of the Energy and Utilities Alliance (EAU) in Kenilworth, Warwickshire, it brought manufacturers and installers together with representatives of the Heating and Hotwater Industry Council (HHIC), the Association of Plumbers and Heating Contractors (APHC), and the Chartered Institute of Plumbing and Heating Engineering (CIPHE).

In an admission of the industry’s failure to self-regulate, it was concluded that the problem was the fault of the government and a lack of oversight of building regulations. “From the feedback we have received, it has become clear that there was a significant proportion of installations that were not carried out to current standards and manufacturer’s instructions,” says Stewart Clements, director of the HHIC. “We believe it is time for the government to act.

“Greater enforcement and strengthening of the building regulations will reduce this risk of boiler condensate pipes freezing. We are calling on the government to make the necessary legislative changes.”

In response to The Sunday Times, the Ministry of Housing, Communities and Local Government said that rules published in 2005 make clear that “any external condensate pipework must be insulated to minimise the risk of freezing”. It stated that it is the job of local authorities to apply building regulations and inspect installations.

As the squabbling continues, thousands of householders and tenants will be left trying to avoid a repetition of the problem as early as tomorrow, with blizzards forecast in parts of the country.

The cheapest DIY approach is to buy a length of insulating foam to clad your pipe: it doesn’t look great, but then external pipework never has much aesthetic appeal. Then, when the cold bites, place your boiler on its maximum setting — turning down the room thermostats if necessary — and leave it on continuously, rather than using cost-saving on-off settings that may permit a build-up of ice.

Hot tips

Since 2005, every new gas boiler installed in the UK must be a condensing model: these are much more efficient (up to 90%, compared to 60% for older models), so reduce running costs. About half the country’s 26m households now have one and 1.5m are installed every year.

They work with flue gases at a lower temperature than earlier models – 50C, rather than 130C – and the process produces up to two litres an hour of acidic water, known as condensate, which must be carried away as waste in a non-corroding pipe.

Ideally, this condensate pipe should empty directly into the waste water system, inside the property. In some countries, including Germany, where many of the boilers are manufactured, this is the only permitted method of installation. In Britain, however, the condensate pipe can be run down the outside of the wall directly behind the boiler. This is often the easiest and cheapest way.

Pipes passing through unheated parts of a property, including attics, are prone to freeze and should be insulated. Running down the outside wall, exposed to cold winds, they are more vulnerable still. To reduce the chances of the pipe freezing, it should be vertical, at least 32mm in diameter, no more than three metres long and properly insulated or (expensively) fitted with a “trace heater” system.

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
8 MARCH, 2018 BY NICK GOLDING

COMMENT
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

At last, somebody puts in print my own thoughts exactly

Copied from Sunday Telegraph 31 Dec 2017

Let those filling up drunk tanks pick up the tab by Daniel Hannan

Shakespeare, and most likely Falstaff – played above by Sir Antony Sher – would recognise modern-day attitudes to public drinking CREDIT: ROBBIE JACK/CORBIS
The announcement that “drunk tanks” may be rolled out across the UK has prompted amused headlines around the world. I’m afraid we have something of a global reputation when it comes to alcohol abuse. “This heavy-headed revel east and west makes us traduced and tax’d of other nations,” as the poet says. “They clepe us drunkards”.
In our own day, as in Shakespeare’s, we display an unusual attitude to inebriation. In most countries, being drunk in public is disgraceful. The notion that young Brits boast about how hammered they got the night before is met with incredulity in much of Europe.
But here’s the thing. Contrary to the impression you’d get from this week’s headlines – or, indeed, any headlines over the past decade – boozing is becoming less of a problem in the UK. Take any measure you like – binge drinking, overall consumption, alcohol-related crimes. All are in decline.
Why? Partly because, in November 2005, we ended the rule that forced pubs to stop serving at 11pm. It was controversial at the time. The tabloids prophesied societal collapse. The Daily Mail warned against “unbridled hedonism, with all the ghastly consequences that will follow.” The Sun foresaw a “swarm of drunken youngsters.” The Royal College of Physicians predicted “more excess and binge drinking, especially among young people.”
In the event, the opposite happened. Binge drinking among 16 to 24-year- olds sank from 29 to 18 per cent. Overall alcohol sales declined by 17 per cent. Alcohol-related hospital admissions fell sharply. It turned out that forcing drinkers to beat the bell, racing to get a final pint in at last orders, was not a sensible way to discourage consumption. Giving people more responsibility, on the other hand, encouraged them to behave more responsibly.
I suspect the creation of innumerable virtual universes over the past decade has also played its part. Although parents complain about how much time their children spend on screens, that is time that previous generations often spent on more directly harmful addictions. The rise of online gaming and social media has probably also played a part in the reduction of teen pregnancies and sexually transmitted diseases – two other developments that bear little relation to popular worries.
The increased use of police facilities or dedicated buses as places where drunks can dry out should be seen for what it is. Not as a response to some new epidemic of crapulous misbehaviour, but as a sensible way of ensuring that A & E facilities are there for the genuinely ill and injured. Being drunk, after all, is not a disease, but a consequence of choices. It is quite wrong to load the cost onto the taxpayer. The people filling the drunk tanks should be presented with the bill for their stay after they sober up.
The Englishman may, as Shakespeare put it, drink with facility the Dane dead drunk, and sweat not to overthrow the Almain. The least he can do is pick up his tab.