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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 Clarke – Kiera Taylor, Matthew Germain and Caroline Bush

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Lifting the council tax cap is just passing the buck
By Heather Jameson | 18 December 2017
Heather Jameson
The Scottish Budget does not bode well for local government – on both sides of the border.

Finance secretary Derek MacKay’s decision to use his tax raising powers to pay for public services may herald a welcome shift towards ending austerity. However, the Scottish local government finance settlement also included the presumption that councils would do the same.

Without a double whammy of income tax rises, and council tax increases, taxpayers north of the border are set to feel the pinch.

And so we wait for the English settlement – delayed, we have been assured, due to communities secretary fighting for a good deal for the sector.

It seems unlikely there will be anything extra for adult social care as we wait for the green paper – although there may be measures to ease the rising pressures on children’s services. We can also expect an extension of transition grants. In the absence of a plan for fair funding and full business rate retention, a fiscal fudge may be the only option.

But the coffers are empty – there is no cash handout on the horizon. Last time round the gap was plugged with the adult social care precept. This time round, we could see the government lift the cap on council tax rises.

Is it a win for local government? Freeing councils from central government interference has got to be a good thing. Democratically elected councillors have every right to choose their own levels of taxation.

However, failing to fund local government and letting councils take the flack for raising taxes is passing the political buck. This is not giving councils the choice to raise taxes – it is forcing their hand.

Finance settlement offers no lifeline to the struggling sector
By Heather Jameson | 19 December 2017
Heather Jameson
Watching the local government finance settlement after last month’s budget, it is fair to say the Government can be commended for its consistency. It has consistently failed to address the financial crisis facing local government.

There are some positives. Easing the council tax referendum threshold gives local government a modicum more control over its own destiny. A three percent increase puts council tax broadly in line with inflation – assuming you ignore the social care precept, which taxpayers will not.

And the extension of business rate pilots will be welcomed in the lucky areas bestowed with the gift. A pledge to shift to 75% business rate retention is also a good move – and as far as Sajid Javid could go without legislation.

Promises to review the funding system and maintain New Homes Bonus are also likely to play well with the sector.

There is an extra £13m for struggling Northamptonshire, Mr Javid told Parliament – mentioned with the aside that he would listen to any reorganisation proposals put forward. Does this mean if you truly fail, government will come in and pick up the pieces?

However, council tax measures will raise around £250m – at different levels across the country – compared with the £2bn needed. Adult social care is in crisis, with a green paper planned for the summer – and a solution even further away.

Children’s services are increasingly becoming a concern and the settlement failed to find a solution there. Councils remain on a precipice, and the draft settlement provides very little in terms of a safety net.

Two years ago, MP’s threatened to vote against the settlement – could we see the same thing happen again? With some of the main protagonists handed business rate deals, Sajid Javid may have done enough to keep the sector quiet – but not enough to send a lifeline to the sector.

No doubt this story in the Times will generate the standard response of criticism of councils.

This is normally along the lines of, we don’t collect the stuff often enough, we don’t collect the right stuff – or we charge for taking stuff away and of course, the tip isn’t open often enough.

As with every Council service, all this costs money to do and has to be paid for by every taxpayer, even if they don’t use that service.

People never seem to go straight to criticising the criminals, who actually do the tipping and blighting of the countryside, or streets.

Councils are calling for a more effective legal system to streamline prosecutions for fly-tipping, which latest figures show has reached an eight-year high.

There were more than a million fly-tipping cases over the past financial year but the number of prosecutions has halved since 2012. Cllr Martin Tett, the LGA’s Environment spokesman, said: “When they take offenders to court, councils need a faster and more effective legal system which means fly-tippers are given hard-hitting fines for more serious offences.

Clearing up fly-tipping is costing councils more than £57 million a year, money that could be spent on services like caring for the elderly, protecting children or tackling homelessness.

The Government has allowed us to apply fixed-penalty notices for small-scale fly-tipping and this is a big step in the right direction.” Cllr Tett also called for manufacturers to take more responsibility for taking back old products when they sell new ones.

The comments from readers make very interesting reading. They offer significant insight into the levels of ignorance that exist, because of the complex systems of local government and taxation we have created in this country.

The Times suggests that council tax could rise under plans to head off deep cuts to frontline services and ease the social care crisis. Theresa May is reportedly resisting calls from councils to scrap rules that require them to hold a vote for the largest increases. However she could allow them more flexibility to increase bills when the Local Government Finance Settlement is announced next week. Lord Porter, LGA Chairman, urged Mrs May to lift all restrictions on council tax rises. He said: “The money local government has to provide vital day-to-day services is running out fast. There is huge uncertainty about how local services are going to be funded beyond 2020.” Philip Hammond, the Chancellor, who was criticised for failing to provide extra cash for social care in last month’s budget, is said to be sympathetic.