Online and Addtional Member Support:
Membership fees start from as little as £900 per annum, per organisation.
Used well, our membership service has no real cost and can save money for our clients – how?
Can local authorities require bins to be brought in off highway by section 46 EPA?
Answer:
YES. It is interesting that recent indications from the government suggest the government is considering legislation to prevent the issue of penalties for failing to bring bins back in - this does of course suggest that the government accepts that such powers do currently exist. The situation remains the same notwithstanding the waste review, as the government acknowledges that removal of criminal penalty powers will require amendment of primary legislation.
Membership fees start from as little as £900 per annum, per organisation.
Used well, our membership service has no real cost and can save money for our clients – how?
Answer:
YES. It is interesting that recent indications from the government suggest the government is considering legislation to prevent the issue of penalties for failing to bring bins back in - this does of course suggest that the government accepts that such powers do currently exist. The situation remains the same notwithstanding the waste review, as the government acknowledges that removal of criminal penalty powers will require amendment of primary legislation.
|
Continues...... Regardless of the fact that several authorities have already obtained convictions in relation to non-compliance with such requirements, the answer is contained in section 46 itself: Section 46 provides that no requirement may be made to place a receptacle on highway unless consent has been obtained from the highway authority and there are sufficient insurance arrangements in place. No highway authority may give open ended consent to widespread obstruction of highway. Placement for collections necessarily involves recovery of any such receptacle as an essential part of that same process. To place a receptacle on highway and to leave it there is not a placement for collection, but an occupation of highway as a waste storage facility. Of course, in London, this is strengthened further by an amendment to section 46 that specifically states that requirements may be made to prevent detriment to amenity generally. I would add that the leaving of waste receptacles on highway is not only unsightly and obstructive but in many areas is known to be a significant contributor to other anti-social behaviour, such as arson and burglaries. |
The proposed clause 23 and 33 amendments to the Localism Bill remain alive.
These regulations have caused a lot of confusion for local authorities. The regulations do not take away local authority enforcement powers concerning unlawful waste transportation.
However, there are a few very subtle changes that could easily catch out a local authority seeking to discourage unlawful transportation in its area. Notably, there are amendments to the conditions applying to the need to register and the categories of persons who may not be prosecuted immediately by a local authority.
First of all, we need to remove the source of confusion, caused by a misreading of the introduction of new powers, primarily for the benefit of the Environment Agency.
Of these new powers, only the Environment Agency can enforce Part 5 of the regulations (duties in relation to waste management) and offences in relation to unregistered dealers and brokers.
The 2011 regulations also introduce new enforcement tools –
However, the existence of these new tools does not of itself affect a local authority’s existing powers to enforce against contraventions of section 1 COPAA (unlawful transportation).
Regulation 45 provides that a local authority must not institute proceedings against a specified person for contravention of section 1 of the 1989 Act unless—
Specified persons are (regulation 24):
The areas to note in regulation 25 are contained within categories (e) and (f).
Category (f) harks back to the traditional separation of treatment of agricultural, mines and by-products waste, which at one time were excluded from the category of “controlled waste”. This category does limit the local authority’s powers of enforcement to prior service of a compliance or stop notice. Officers should be alive to this when investigating the nature and source of waste being carried.
Category (e) contains a very significant and important change to the previous system –
Prior to the 2011 regulations it was the case that any person who transported his / her own waste for disposal need not be registered unless the waste included construction or demolition waste. It remains the case that a local authority may only institute immediate prosecution proceedings against persons carrying construction or demolition waste, if carrying their own waste for disposal. However, the 2011 regulations clearly provide that a person carrying their own waste will be required to register, even if that waste is not construction or demolition waste, if that person normally and regularly carries waste.
Given the above, it will be interesting to see how the phrase “normally and regularly” will be interpreted by the Environment Agency and the courts.
These regulations have caused a lot of confusion for local authorities. The regulations do not take away local authority enforcement powers concerning unlawful waste transportation.
However, there are a few very subtle changes that could easily catch out a local authority seeking to discourage unlawful transportation in its area. Notably, there are amendments to the conditions applying to the need to register and the categories of persons who may not be prosecuted immediately by a local authority.
First of all, we need to remove the source of confusion, caused by a misreading of the introduction of new powers, primarily for the benefit of the Environment Agency.
Of these new powers, only the Environment Agency can enforce Part 5 of the regulations (duties in relation to waste management) and offences in relation to unregistered dealers and brokers.
The 2011 regulations also introduce new enforcement tools –
- The compliance notice (regulation 38);
- The stop notice (regulation 39)
- The restoration notice (regulation 40).
However, the existence of these new tools does not of itself affect a local authority’s existing powers to enforce against contraventions of section 1 COPAA (unlawful transportation).
Regulation 45 provides that a local authority must not institute proceedings against a specified person for contravention of section 1 of the 1989 Act unless—
- (a) the authority has served a compliance notice or stop notice on the person in respect of the contravention; and
- (b) the person has failed to comply with the notice.
Specified persons are (regulation 24):
- a) a charity or voluntary organisation;
- b) a waste collection authority;
- c) an authority which is a waste disposal authority for the purposes of Part 2 of the Environmental Protection Act 1990;
- d) an authority which is a waste regulation authority for the purposes of Part 2 of the Environmental Protection Act 1990;
- e) a carrier which only transports waste produced by the carrier itself, except where it is construction or demolition waste (and “construction” includes improvement, repair and alteration);
- f) a carrier which only transports, a broker which only arranges for the recovery or disposal of, or a dealer which only deals in—
- i. animal by-products;
- ii. waste from a mine or quarry; or
- iii. waste from premises used for agriculture.
The areas to note in regulation 25 are contained within categories (e) and (f).
Category (f) harks back to the traditional separation of treatment of agricultural, mines and by-products waste, which at one time were excluded from the category of “controlled waste”. This category does limit the local authority’s powers of enforcement to prior service of a compliance or stop notice. Officers should be alive to this when investigating the nature and source of waste being carried.
Category (e) contains a very significant and important change to the previous system –
Prior to the 2011 regulations it was the case that any person who transported his / her own waste for disposal need not be registered unless the waste included construction or demolition waste. It remains the case that a local authority may only institute immediate prosecution proceedings against persons carrying construction or demolition waste, if carrying their own waste for disposal. However, the 2011 regulations clearly provide that a person carrying their own waste will be required to register, even if that waste is not construction or demolition waste, if that person normally and regularly carries waste.
Given the above, it will be interesting to see how the phrase “normally and regularly” will be interpreted by the Environment Agency and the courts.