waste facilities audit association

WASTE FACILITIES AUDIT ASSOCIATIONLegal Update – 22 May 2012

Andrew Waite, Partner

Aidan Thomson, Partner

THE MEANING OF WASTE

•Discard

•the Burden Principle

www.blplaw.com Page 2 © Berwin Leighton Paisner

BY-PRODUCTS – ARTICLE 5 WFD 2008

• Further use is certain

• use without further processing other than normal industrial practice

• produced as integral part of production process

• further use is lawful (product, environmental and health protection requirements/no overall adverse environmental or human health impacts)

www.blplaw.com Page 3 © Berwin Leighton Paisner

END – OF – WASTE STATUSEffect of case law

•Recovery – conversion into marketable products

•material required but no need for recovery?

www.blplaw.com Page 4 © Berwin Leighton Paisner

WASTE OR RAW MATERIALS?

EA v Thorn

•products returned by customers

•retrieved from retailers

•repaired by T and offered for resale

www.blplaw.com Page 5 © Berwin Leighton Paisner

WASTE OR RAW MATERIALS?

www.blplaw.com Page 6 © Berwin Leighton Paisner

P

C

R

SITE A SITE B

WASTE OR RAW MATERIALS?

It depends on the circumstances

•DoE v O’Hare (2007) NI

•EA v Inglenorth (2009)

•R v W, C and C (2010)

•R v Evan Jones (2011)

www.blplaw.com Page 7 © Berwin Leighton Paisner

DUTY OF CASE – S34 EPA

Duty on any producer etc. to take all such measures applicable to him in that capacity as are reasonable in the circumstances

•to prevent any contravention of section 33 (unlicensed deposits)…..

•on the transfer of the waste to secure that the transfer is only to an authorised person…..

www.blplaw.com Page 8 © Berwin Leighton Paisner

DUTY OF CARE

Mountpace v Haringey LBC (2012)

•Owner hired contractor to refurbish premises and remove waste

•Contractor passed waste to flytipper

www.blplaw.com Page 9 © Berwin Leighton Paisner

DUTY OF CARE

Mountpace v Haringey LBC (2012)

•Who is the waste producer?

•Nature of the duty

•When did measures have to be taken?

•Did the waste producer comply? www.blplaw.com Page 10 © Berwin Leighton Paisner

WASTE – LIABILITY IN NUISANCE

• Barr v Biffa Waste Services Ltd

• 152 households complained of odour from Biffa’s landfill site in Hertfordshire

• Landfill sites are highly regulated by the Environment Agency

WASTE – LIABILITY IN NUISANCE

• Two important legal issues were discussed:• When someone is operating a facility in

accordance with a permit and without negligence, can third parties still claim nuisance at common law?

• How do you demonstrate a loss of amenity?

WASTE – LIABILITY IN NUISANCE

• View of the High Court (2011)

• View of the Court of Appeal (2012)

• Appeal to the Supreme Court?

WASTE – LIABILITY IN NUISANCE

• Factually complex case

• Significant costs have been incurred

• Damages per claimant are low for these kinds of cases

• Proportionality?

• Part of a trend?

WFAA – LEGAL UPDATE – MAY 2012Andrew Waite & Aidan Thomson

This document provides a general summary only and is not intended to be comprehensive. Specific legal advice should always be sought in relation to the particular facts of a given situation.