Your legal queries answered

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

Can local councils bring proceedings for Duty of Care offences when businesses leave waste for collection outside of premises and on public footpaths well in advance of the day or time of collection?

In short, yes, but care should be taken as to which particular charge is being brought and the manner in which the charges are framed. This issue has recently been discussed by the High Court following action by the London Borough of Camden for offences under the Section 34 Environmental Protection Act duty of care (London Borough of Camden v Mortgage Times Group [2006]).

The case concerned the deposit for collection of office and commercial waste where the council had stipulated that waste to be collected at 10.30am was not to be left outside of premises before 9.00am. The defendant had placed waste sacks on the street at around 7.00am.

Section 34(1)(b) imposes a duty to take all reasonable measures to "prevent the escape of the waste from his control or that of any other person". At the Magistrate's Court the charges were dismissed on the basis that there was no "escape" of waste.

The Magistrates relied on a High Court decision of March 2004 (Gateway Professional Services (Management) Ltd v Kingston upon Hull City Council) where the Court agreed with the defendant who argued that to prevent the escape of waste referred to matters such as secure and proper packaging to prevent spillage or leakage.

The March 2004 High Court also indicated that there were other more suitable charges which, in the particular circumstances of that case, could have been brought and that the s34(1)(b) charge was accordingly not appropriate.

In the Camden case, the High Court (Lord Justice Latham) agreed that there was no escape of the waste but went on to clarify that the s34(1)(b) offence involved a failure to take reasonable measures to prevent the escape of waste and therefore an actual escape was not necessary for liability to attach.

The Court agreed with the Council that by putting the waste on the street "a significant period of time before collection was due to take place, it had materially increased the risk of escape of that waste".

Consequently, the defendants had failed in their duty to take "reasonable measures to prevent that escape". LJ Latham also referred to the corresponding provisions in the Duty of Care code of practice on placing of waste near to the advertised collection times.

What is the current status of the implementation of the WEEE Directive and what are the implications for local authorities ?

The UK should have implemented domestic regulations on Waste Electrical and Electronic Equipment (WEEE) in August 2004, but has yet to finalise the regime.
A second set of draft regulations were released in July 2006 and it is now hoped that they will be laid before Parliament in December with the regime finally coming into force in Spring 2007.

The WEEE regime requires producers of electrical and electronic equipment (EEE) to be financially responsible for the recovery, recycling and reprocessing of Waste EEE.

The regulations will require producers and retailers of EEE to provide either in-store take back facilities or a service (at no cost to the domestic customer) whereby WEEE is either collected or can be deposited at designated collection facilities. These are very likely to be existing civic amenity sites.

Local authorities should be discussing the mechanics of how this will work in practice with their waste contractors - it is possible that an additional revenue stream might be created. In addition, a network of authorised treatment facilities will need to be created.

While the industry has been anticipating how it will deal with the new requirements for a number of years it is likely that some new applications for planning permissions for these facilities will come in the next few months.

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