Your legal queries answered

Paul Rice, a partner at leading solicitors Pinsent Masons, answers topical questions on legal issues surrounding environmental and waste management

What happens in practice if local authorities fail to submit their landfill allowance trading scheme data to the Environment Agency by the deadlines, and what happens to the data ?

Under the landfill allowance trading scheme (LATS), waste disposal authorities must submit details of the amount and types of waste that they manage by specific quarter day deadlines.

Regulation 11 of the LATS (England) Regulations 2004 require a WDA to keep and supply to the monitoring authority records containing: the weight in tonnes of collected municipal waste; the weight in tonnes of municipal waste sent to landfills by the WDA; the weight in tonnes of municipal waste sent to waste facilities whether by the WDA, or any waste collection authority within the area of the WDA.

The WDA must also supply the standard description of, and the appropriate code in the European Waste Catalogue code for, the waste sent to each landfill or waste facility. All relevant records must be kept for two years from the end of the relevant reconciliation period.

For the first year of operation of LATS the final deadline for submission of data was 30 June 2006. Unless alternative arrangements have been made, it is the responsibility of the WDA to ensure that returns have been made by their relevant waste collection authorities.

WDAs can be fined £1,000 for each "requirement imposed on it ... with which it fails to comply". The WDA will have one month to settle penalties following notification by the Secretary of State that a penalty is due. Failure to settle penalties will incur a daily interest rate.

Part way through the 2005 compliance year the Environment Agency (EA) was concerned about the low level of complete submissions of information it was receiving; 34 out of 121 authorities. As of June 2006, Wasteflowdata was able to report that all authorities had registered and that over 84% had submitted at least one quarter's set of data for validation.

After reconciling all of the data the EA will issue a draft report by the end of August aiming to finalise it by 30 September. It is planned that authorities will have until 15 September to query their performance although trading of allowances will continue until 30 September.

When considering planning applications on brownfield sites and even strategic queries on certain regeneration projects we come across the perennial issue of whether arisings from former industrial sites are to be classed as waste or not which in turn will dictate how such matters are handled in planning conditions or indeed whether additional Environment Agency permits are required? Much hangs on the Van de Walle judgement. Is there any clear guidance on how such matters are to be approached ?

The European Court of Justice judgement in Van de Walle (Sept 2004) meant all contaminated soils whether excavated from a site or remaining in-situ are to be classed as waste and treated as such under domestic law.

Early in 2005 the Environment Agency (EA) indicated that it had instructed all offices not to take any action based on the decision pending further consideration of all the issues and the publication of guidance.

Thankfully in April of this year the EA finally issued its guidance - See "The Definition of Waste - Developing Greenfield and Brownfield Sites". Note that it does not deal with the planning aspects for which you will still need to consider Planning Policy Statement 23 "Planning and Pollution Control".
>* This column does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered

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