Your legal queries answered

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

With news of more councils fining residents for not complying with waste collection services, can you please clarify what powers are open to a local authority waste enforcement officer ?

The end of the summer has seen more guidance on the implementation of the provisions of the Clean Neighbourhoods and Environment Act 2005 (CNEA) in relation to waste which expand upon the powers of local authorities to impose fines as set out in s.46 and s.47 of the Environmental Protection Act 1990 (EPA).

At the start of August, Defra sent a letter to all LAs to provide an update on the new CNEA fixed penalty notice (FPN) powers which commenced on 6 April 2006.

The CNEA amended the EPA to introduce a range of FPNs for matters including the following waste related offences - failure to produce waste transfer notes; failure to supply a valid waste carriers' certificate; and offences relating to use of waste receptacles and putting waste out.

Defra stated that it is "keen to see these FPNs being used as part of local authorities' suite of actions used to deal with waste crime and fly-tipping". The letter goes on to clarify the correct procedures for service of the FPNs.

In June of this year, Telford Magistrate's fined a resident for putting rubbish out on the wrong day for collection and outside of the waste receptacles.

This followed a concerted effort by the LA to encourage the resident to comply including visits, providing an additional bin, several written notices and the offer of a formal caution.

The LA had recently introduced fortnightly collection services. The resident pleaded guilty to the charges under s.46 of the EPA of failing to comply with the council's requirements in relation to the use and placing of waste receptacles. The new provisions of the CNEA would raise the level of potential fine to £100 per offence.

The FPNs which can now be issued under the amended ss.46 and 47 of the EPA relate to failure to comply with the LA's requirements in relation to:
  • the size, construction and maintenance of waste receptacles whether these are wheelie bins or black sacks
  • the placing of waste receptacles for collection
  • prohibited contents
  • what occupiers must do to facilitate the collection of waste.
Failure to follow the notices issued by a LA can now give rise to service of a FPN under s.47ZA of the EPA. Defra advises that the requirements in relation to FPNs on waste receptacles and waste collection must be reasonable and that householders and businesses are notified regularly about these requirements.

On the subject of noise and licensed premises, the increased powers given to LAs pursuant to the CNEA will be supplemented from 1 October 2006 when the powers of the Noise Act 1996 will for the first time be extended to licensed premises by virtue of the third commencement order to the CNEA.

Defra has published new guidance on contaminated land - have the regulations changed ?

In short, not substantially. Authorites should note that the regulations and statutory guidance underpinning the Part 2A contaminated land regime were reissued in August with the main changes relating to the application of the regime to radioactively contaminated land.

The new guidance (Defra Circular 01/2006) replaces DETR circular 02/2000 but other than the changes relating to radioactive contamination the key policy and law on Part 2A remains the same. The new regulations extending the Part 2A regime to radioactively contaminated land came into force on 4 August. Other changes deal with the transfer of appeals against remediation notices from Magistrate's Courts to the Secretary of State.

LAs should be aware that following the High Court ordering a retrial in the Sevenoaks District Council case, the parties have recently agreed to settle the matter out of court and the local authority has revoked the remediation notice. Due to confidentiality provisions no further information is available on the case.

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