environmental legal update

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


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


Part 1


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.


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.


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.



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.



• 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.


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


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


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%.


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.


Love Essex Litter Campaign


Litter Campaigns: Discussion

• Does your local authority have a litter campaign?

• If so, what elements have you found to be most successful?


Part 2


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



• 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.



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.


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.


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.


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.


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.


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


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.


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.


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


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.


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.


Part 3


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


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


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)


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


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


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?


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


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.


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


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.

http://www.freeths.co.uk/2018/04/19/environmental-bulletin-spring


https://www.emlawshare.co.uk/em-lawshare-conference-2018/


Any questions?

Vicki Teece

[email protected]

Tel: 0845 272 5732

Emma Tattersdill

[email protected]

Tel: 0845 077 9560

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