End of Life Vehicles in UK
Order Description
This assignment carries 60% of the marks for the Module.
Write a critical study of 3,000 words on an area of wastes management law.
The criteria for the critical study are:
•Identify relevant material to the chosen topic
•Use of appropriate source material
•Reference to and evaluation of various opinions where appropriate
•Use of logical argument.
•include case studies
Use this link to know everything about the end of life vehicles legislation in uk
https://www.legislation.gov.uk/all?title=End%20of%20life%20vehicle%20
MOVEMENT OF WASTE
TRANSFRONTIER WASTE SHIPMENTS
International
The international control of the shipment of waste is particularly difficult to control as it is very varied and extensive and is subject to political influences.
The international controls tend to overlap and are very complex. There are three main Treaties: The Basel Convention, the OECD (Organisation of Economic Co-operation and Development) Decision and the Lome Convention. An example of the difficulties is that the USA is a member of the OECD but not the Basel Convention and Malaysia is a member of Basel but not the OECD.
The Basel Convention
The Convention was agree in 1989 and the EU joined in 1994.The Convention obliges every member state to ensure that international waste movements do not cause wastes to be managed in an environmentally unsound manner at destination. Wherever possible it requires wastes to be disposed of as close to the site of generation as possible. States should only allow waste to be moved to disposal if the state of export does not itself have the technical capacity and the necessary facilities to arrange for environmentally sound management of the waste.
The Convention sets out two lists of wastes the one sets out wastes which are always considered to be hazardous and the other sets out wastes which are not to be considered hazardous such as scrap iron and steel, waste electrical goods, batteries not containing lead cadmium or mercury, plastics, paper and textiles. The Convention is concerned mostly with the movement of hazardous waste. It allows member states to prohibit the import of hazardous wastes and some other wastes such as household waste when they are to pass to disposal as opposed to recovery. Other member states are then required to ban the export of such wastes to that country. Non-member states are prohibited from importing or exporting wastes to member states unless there is a specific agreement.
The Convention requires international shipments of hazardous waste for disposal to be subject prior approval by way of a notification document, which must be served on the competent authorities in the exporting and importing countries and to any countries through which the waste must pass. The purpose of the notification is:
• to both check and approve that the consignment is within the terms of the convention and that the countries involved agree to the transboundary movement; and
• to track the waste so that it does not go ‘astray’.
If acceptable disposal cannot be achieved the Convention requires that the waste be returned to the exporting country.
The OECD Decision
The OECD Decision on the Control of Transfrontier Movements of Waste Destined for Recovery Operations was enacted in 1992 (with subsequent amendments) under the Basel Convention although not all members of the Basel states are signatories and some countries that are not members of the Basel Convention are signatories of the Decision. There are 29 member states: all EU countries, Australia, Canada, the Czech Republic, Hungary, Iceland, Korea, Japan, Mexico, New Zealand, Norway, Poland, Switzerland, Turkey and the USA. Whereas the Basel Convention focuses on the ‘safe’ disposal of hazardous waste the Decision sets out the requirements for the transfrontier movement of waste passing to recovery. The Decision sets out a three-tier system which classifies waste into three groups: Green, Amber and Red. Scrap metals, paper and textiles are in the Green category and hazardous and toxic wastes are in the Amber and Red categories. The controls on the movement of the wastes are, as might be expected far more stringent for wastes that are in the Red category than for those in the Amber category and less stringent again for those in the Green category and can usually be traded without any system of notification. However some countries consider certain materials in the Green category and being hazardous and certain countries in Africa, the Caribbean and the Pacific have banned all Green List shipments.
The Lome Convention
The Lome Convention passed in 1989 prohibits the export of hazardous wastes from the EU to 70 African, Caribbean and Pacific countries.
European
Council Regulation 259/93 on Transfrontier Waste Shipments
The Regulation defines waste, disposal and recovery in accordance with the Directive on Waste (75/442 EEC). In accordance with the OECD Decision the Regulation has a general prohibition on the transfrontier movement of waste for disposal with limited exceptions. However the Regulation incorporates the provisions of the OECD Decision in relation to transfrontier movement of waste for recovery. It repeats the classification of waste into Green, Amber and Red lists as well as hierarchy of controls.
UK
Although the Regulation has direct effect in all Member States many sates including the UK have incorporated the controls into national law by domestic legislation. The UK provisions are founding the Transfrontier Shipment of Waste Regulations 1994 (SI 1994/1137). In addition the UK has drafted a policy, The UK Management Plan for r the Export and import of Waste (Department of the Environment 1996), in relation to transfrontier waste. As a consequence no waste is exported from the UK although the UK does import and export waste for recovery. It mainly imports solvents and high calorific wastes for fuel in cement manufacture.
REGISTRATION OF WASTE CARRIERS AND WASTE BROKERS
Registration of Carriers
Under the Control of Pollution (Amendment Act 1989 and the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991 and the Waste Management Licensing Regulations 1994 controlled waste carriers must be registered. The provisions were introduced due to the problem of wide scale fly-tipping of construction waste.
The provisions require waste carrier who transport controlled waste ‘in the course of any business…or other wise with a view to profit’ on behalf of third parties to be subject to formal registration. In this context third party refers to the waste producers who, for example, in the case of construction waste would be the client for whom the builder is carrying out the work. Registration also applies to all commercial bodies who move building and construction waste when they themselves are the producers.
Exemptions from Carrier Registration
• Householders
• Producers of waste which is not building or demolition waste
• Transporters of animal by products and carcasses (these come under separate provisions – Animal By-products Order 1992)
• Transporting waste from one part of a site to another.
There are no exemptions for the size of company or type of vehicle.
Registration of Brokers
Under the Directive on Waste (75/442/EEC as amended) as put into effect by the Waste Management Licensing Regulations 1994 waste brokers must be registered. The provisions require establishments or undertakings ‘which arrange for the disposal or recovery of waste on behalf of others (brokers or dealers)’ to be registered.
Exemptions from Carrier Registration
Persons actually carrying out disposal or recovery operations
Application
Application for registration must be made to the Environment Agency who has two months within which to process the application. A fee must accompany the application. Applications are made by individuals if they are sole traders or by corporations or by partnerships (although each member of the partnership must be named on the licence and (if a carrier) the certificate. If more persons are to be added to the registration then a fresh application must be made.
Refusal
An application may be refused ‘if and only if’:
a) There has been a contravention of the application procedures; or
b) The applicant or any other relevant person has been convicted of a specific offence (these relate to the illegal carriage of waste) and in the opinion of the Agency it is undesirable for the applicant to be authorised to transport controlled waste or to arrange (as a dealer or broker) for controlled waste to be disposed of or recovered on behalf of others.
Offences are within the Rehabilitation of Offenders Act 1974 and are spent as follows:
• After 7 years for a prison sentence of 6 months or less;
• After 5 years for a fine or Community Service Order;
• After 1 year for a conditional discharge.
The Act does not apply to corporations and the offences must always be declared.
Grant of a Registration
A registration lasts for three years. A certificate is issued in respect of a carrier, which must be produced on demand to a police officer or Environment Agency inspector. The Environment Agency must give a carrier or broker at least six months notice of expiry of registration, which may then be renewed.
Revocation of Registration
Registration may be revoked ‘if and only if’:
a) the carrier or broker or any other relevant person has been convicted of a specific offence (these relate to the illegal carriage of waste); and
b) in the opinion of the Agency it is undesirable for the applicant to be authorised to transport controlled waste or to arrange (as a dealer or broker) for controlled waste to be disposed of or recovered on behalf of others.
Appeal
Appeal on the grounds of refusal or revocation of registration lies to the Secretary of State.
Offences
It is an offence for any person who is not a registered carrier of controlled waste in the course of any business or with a view to profit to transport any controlled waste form to and from any place in the UK. There are three defences:
a) It was an emergency and notice was given to the Environment Agency as soon as practicable;
b) The person neither knew nor had reasonable grounds to suspect that what was being transported was controlled waste and took all such steps as was necessary for ascertaining whether it was controlled waste;
c) The person was acting under the instructions of his employer.
It is an offence to operate as an unregistered waste broker.
MOVEMENT OF WASTE
TRANSFRONTIER WASTE SHIPMENTS
International
The international control of the shipment of waste is particularly difficult to control as it is very varied and extensive and is subject to political influences.
The international controls tend to overlap and are very complex. There are three main Treaties: The Basel Convention, the OECD (Organisation of Economic Co-operation and Development) Decision and the Lome Convention. An example of the difficulties is that the USA is a member of the OECD but not the Basel Convention and Malaysia is a member of Basel but not the OECD.
The Basel Convention
The Convention was agree in 1989 and the EU joined in 1994.The Convention obliges every member state to ensure that international waste movements do not cause wastes to be managed in an environmentally unsound manner at destination. Wherever possible it requires wastes to be disposed of as close to the site of generation as possible. States should only allow waste to be moved to disposal if the state of export does not itself have the technical capacity and the necessary facilities to arrange for environmentally sound management of the waste.
The Convention sets out two lists of wastes the one sets out wastes which are always considered to be hazardous and the other sets out wastes which are not to be considered hazardous such as scrap iron and steel, waste electrical goods, batteries not containing lead cadmium or mercury, plastics, paper and textiles. The Convention is concerned mostly with the movement of hazardous waste. It allows member states to prohibit the import of hazardous wastes and some other wastes such as household waste when they are to pass to disposal as opposed to recovery. Other member states are then required to ban the export of such wastes to that country. Non-member states are prohibited from importing or exporting wastes to member states unless there is a specific agreement.
The Convention requires international shipments of hazardous waste for disposal to be subject prior approval by way of a notification document, which must be served on the competent authorities in the exporting and importing countries and to any countries through which the waste must pass. The purpose of the notification is:
• to both check and approve that the consignment is within the terms of the convention and that the countries involved agree to the transboundary movement; and
• to track the waste so that it does not go ‘astray’.
If acceptable disposal cannot be achieved the Convention requires that the waste be returned to the exporting country.
The OECD Decision
The OECD Decision on the Control of Transfrontier Movements of Waste Destined for Recovery Operations was enacted in 1992 (with subsequent amendments) under the Basel Convention although not all members of the Basel states are signatories and some countries that are not members of the Basel Convention are signatories of the Decision. There are 29 member states: all EU countries, Australia, Canada, the Czech Republic, Hungary, Iceland, Korea, Japan, Mexico, New Zealand, Norway, Poland, Switzerland, Turkey and the USA. Whereas the Basel Convention focuses on the ‘safe’ disposal of hazardous waste the Decision sets out the requirements for the transfrontier movement of waste passing to recovery. The Decision sets out a three-tier system which classifies waste into three groups: Green, Amber and Red. Scrap metals, paper and textiles are in the Green category and hazardous and toxic wastes are in the Amber and Red categories. The controls on the movement of the wastes are, as might be expected far more stringent for wastes that are in the Red category than for those in the Amber category and less stringent again for those in the Green category and can usually be traded without any system of notification. However some countries consider certain materials in the Green category and being hazardous and certain countries in Africa, the Caribbean and the Pacific have banned all Green List shipments.
The Lome Convention
The Lome Convention passed in 1989 prohibits the export of hazardous wastes from the EU to 70 African, Caribbean and Pacific countries.
European
Council Regulation 259/93 on Transfrontier Waste Shipments
The Regulation defines waste, disposal and recovery in accordance with the Directive on Waste (75/442 EEC). In accordance with the OECD Decision the Regulation has a general prohibition on the transfrontier movement of waste for disposal with limited exceptions. However the Regulation incorporates the provisions of the OECD Decision in relation to transfrontier movement of waste for recovery. It repeats the classification of waste into Green, Amber and Red lists as well as hierarchy of controls.
UK
Although the Regulation has direct effect in all Member States many sates including the UK have incorporated the controls into national law by domestic legislation. The UK provisions are founding the Transfrontier Shipment of Waste Regulations 1994 (SI 1994/1137). In addition the UK has drafted a policy, The UK Management Plan for r the Export and import of Waste (Department of the Environment 1996), in relation to transfrontier waste. As a consequence no waste is exported from the UK although the UK does import and export waste for recovery. It mainly imports solvents and high calorific wastes for fuel in cement manufacture.
REGISTRATION OF WASTE CARRIERS AND WASTE BROKERS
Registration of Carriers
Under the Control of Pollution (Amendment Act 1989 and the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991 and the Waste Management Licensing Regulations 1994 controlled waste carriers must be registered. The provisions were introduced due to the problem of wide scale fly-tipping of construction waste.
The provisions require waste carrier who transport controlled waste ‘in the course of any business…or other wise with a view to profit’ on behalf of third parties to be subject to formal registration. In this context third party refers to the waste producers who, for example, in the case of construction waste would be the client for whom the builder is carrying out the work. Registration also applies to all commercial bodies who move building and construction waste when they themselves are the producers.
Exemptions from Carrier Registration
• Householders
• Producers of waste which is not building or demolition waste
• Transporters of animal by products and carcasses (these come under separate provisions – Animal By-products Order 1992)
• Transporting waste from one part of a site to another.
There are no exemptions for the size of company or type of vehicle.
Registration of Brokers
Under the Directive on Waste (75/442/EEC as amended) as put into effect by the Waste Management Licensing Regulations 1994 waste brokers must be registered. The provisions require establishments or undertakings ‘which arrange for the disposal or recovery of waste on behalf of others (brokers or dealers)’ to be registered.
Exemptions from Carrier Registration
Persons actually carrying out disposal or recovery operations
Application
Application for registration must be made to the Environment Agency who has two months within which to process the application. A fee must accompany the application. Applications are made by individuals if they are sole traders or by corporations or by partnerships (although each member of the partnership must be named on the licence and (if a carrier) the certificate. If more persons are to be added to the registration then a fresh application must be made.
Refusal
An application may be refused ‘if and only if’:
a) There has been a contravention of the application procedures; or
b) The applicant or any other relevant person has been convicted of a specific offence (these relate to the illegal carriage of waste) and in the opinion of the Agency it is undesirable for the applicant to be authorised to transport controlled waste or to arrange (as a dealer or broker) for controlled waste to be disposed of or recovered on behalf of others.
Offences are within the Rehabilitation of Offenders Act 1974 and are spent as follows:
• After 7 years for a prison sentence of 6 months or less;
• After 5 years for a fine or Community Service Order;
• After 1 year for a conditional discharge.
The Act does not apply to corporations and the offences must always be declared.
Grant of a Registration
A registration lasts for three years. A certificate is issued in respect of a carrier, which must be produced on demand to a police officer or Environment Agency inspector. The Environment Agency must give a carrier or broker at least six months notice of expiry of registration, which may then be renewed.
Revocation of Registration
Registration may be revoked ‘if and only if’:
a) the carrier or broker or any other relevant person has been convicted of a specific offence (these relate to the illegal carriage of waste); and
b) in the opinion of the Agency it is undesirable for the applicant to be authorised to transport controlled waste or to arrange (as a dealer or broker) for controlled waste to be disposed of or recovered on behalf of others.
Appeal
Appeal on the grounds of refusal or revocation of registration lies to the Secretary of State.
Offences
It is an offence for any person who is not a registered carrier of controlled waste in the course of any business or with a view to profit to transport any controlled waste form to and from any place in the UK. There are three defences:
a) It was an emergency and notice was given to the Environment Agency as soon as practicable;
b) The person neither knew nor had reasonable grounds to suspect that what was being transported was controlled waste and took all such steps as was necessary for ascertaining whether it was controlled waste;
c) The person was acting under the instructions of his employer.
It is an offence to operate as an unregistered waste broker.
PLANNING
Introduction
In the 19th Century public health legislation was introduced to remedy the worst effects of insanitary conditions. However it was not until 1909 that legislation was introduced to deal with other problems of land use such as separating residential and industrial areas and marking areas out for leisure and aesthetic reasons.
The UK has a very sophisticated form of planning control in that the process not only deals with the initial use of land but also any material change of use and also the design of the development.
Current legislation that now effects planning is as follows:
Town and Country Planning Act 1990 – This is a consolidation Act.
Planning (Listed Buildings and Conservation Areas) Act 1990
Planning (Hazardous Substances) Act 1990
Planning (Consequential Amendments) Act 1990
Planning Compensation Act 1991
Environment Act 1995
Planning and Compulsory Purchase Act 2004
Structure
There is a two tier structure comprised of:
the Local Planning Authorities and
the Secretary of State.
Local Planning Authorities
These draw up Development Plans and deal with the planning applications at first instance.
In most areas the powers to grant planning permission are divided between the County and the District Planning Authorities. The County Council is the County Planning Authority and the District Council is the District Planning Authority. In some areas there is a Unitary Authority who will undertake both the County Council’s and the District Council’s roles. Other Planning Authorities include:
Joint Planning Boards,
National Park Authorities,
Urban Development Corporations,
Urban Regeneration Agency,
Enterprise Zone Authorities,
Housing Action trusts,
Broads Authority.
Development Plans
The Secretary of State has power to ensure that development only takes place in accordance with the Government’s general policy. This is achieved by requiring that planning decisions are made in accordance with a Development Plan, Waste Plan and Mineral Plan which the Local Planning Authorities must draw up.
The Planning and Compulsory Purchase Act 2004 introduced a
(a) Regional planning and
(b) Local development planning.
(a) Regional Planning
In 2004 Regional Spatial Strategies (RSSs) prepared by Regional Planning Bodies (RPBs) replaced Structure Plans. The RSS had to contribute to the objectives of “sustainable development” and provide a broad development strategy for 15-20 years and a “spatial context for the formulation of sub-regional strategies and programmes. Certain issues had to be taken into account at regional level:
(i) the provision of new housing;
(ii) environmental protection; and
(iii) transport, infrastructure, economic development, agriculture, minerals and waste management.
The “local development documents” (LDDs) of LPAs in the region had to be in general conformity with the RSS. The RSS consisted of written policies supported by non map-based diagrams.
The shift from counties to regions brought about by the introduction of the RSS has, arguably, enabled central government to push through national planning policy more easily than in the past. The requirement under PCPA 2004 that at least 60% of the membership of an RPB had to be members of specified local authorities, including district and county councils within the region, was an attempt to provide a counterbalance.
In May 2010 the new Government announced its decision to abolish RSSs as it considered they did not work and were not democratically accountable. The requisite legislation was passed in under s109 Localism Act 2011, though the appropriate commencement orders have still not been made.
The abolition of RSSs is to be effected in two stages.
The first stage, i.e. to remove the regional planning framework and prevent further strategies from being created, took effect when the Localism Act received Royal Assent on 15 November 2011.
The second stage would be to abolish the existing regional strategies by secondary legislation.
However, any final decision on this had to take account of assessments of, and consultation on, the possible environmental effects of revocation of each of the existing regional strategies. The Strategic Environmental Assessment process is set out in an EU Directive (Directive 2001/42/EC). Given that this was a priority for the Government when it took office it is surprising that RSSs have remained in being so long.
(b) Local Development Plans
Development plans were replaced with:
Local Development Framework (LDF)
The LDF is a portfolio of documents setting out the LPA’s policies for use and development of land in the local authority’s area and consists of:
Local Development Documents (LDDs) which deliver the spatial planning strategy for the area, including Development Plan Documents (DPDs). Only DPDs have statutory development plan status.
Development Plan Documents (DPDs)
The LDF must include the following DPDs:
(i) the core strategy;
(ii) site specific allocations; and
(iii) action area plans (where appropriate).
There are also “supplementary planning documents” (SPDs) which expand on the policies set out in DPDs or provide additional detail and there must also be a proposals map on an Ordnance Survey base.
The LPA must consult upon its DPDs and there must be a Statement of Community Involvement (SCI) and submit draft DPDs to the Secretary of State for “independent examination” by an inspector who applies a test of soundness based on Planning P 12. The Inspector’s report is binding on the LPA.
Local Development Scheme (LDS)
This is a public statement of the LPA’s programme for the production of LDDs. The LDS must specify the LDDs; identify which are LDDs; and contain a timetable for their production and revision. Under reforms made by PA 2008, SCIs do need to be specified in the LDS as LDDs (or be subjected to independent examination); and SPDs will no longer need to be listed in the LDSs.
National Waste Strategy
Local authorities in the past incorporated waste disposal policies into the county structure plan but now under S.38 Town and Country Planning Act 1990 as amended by the Planning and Compensation Act 1991 a Waste Local Plan must be prepared which should cover issues such as:
– scrap yards,
– incineration,
– landfill and landraise,
– recycling and waste transfer,
– waste processing,
– composting,
– storage and treatment centres.
It should take account of the mineral plan.
It should correspond with the structure plan by
– identifying existing sites,
– identifying future sites,
– set out policies and criteria against which applications for waste management can be determined.
(The plans for metro areas will be identified within unitary development plans.)
They must take into account:
– self sufficiency,
– targets for minimisation and recycling of waste,
– incineration and other treatments and waste disposal plans under S.50 EPA.
The National Waste Strategy
Before the creation of the Environment Agency the County Council was required to draw up a Waste Disposal Plans as the Waste Regulation Authority. These were concerned with strategic aspects of treating waste such as:
– types and amount of waste arising,
– the import and export of waste form an area,
– site operating standards and licensing criteria
disposal methods.
Secretary of State
The Secretary of State has a legislative power to make delegated legislation by the Acts referred to above which are all “parent or enabling” acts. The main types of delegated legislation which a Secretary of State may make in relation to planning are Regulations or Orders.
As mentioned above he or she also deals with:
– appeals following the rejection of planning permissions and in relation to enforcement notices, and revocation orders made by Local Planning Authorities, and
– the Approval of Development Plans.
The Secretary of State may also “call in” a planning application in order that he or she may hear it instead of the local authority.
Operation of Planning Control
Application for Planning Permission to Local Planning Authority (LPA)
Whether planning permission is required will depend on whether or not the use of the land comes within the definition of development.
“Development” means the carrying out of building, engineering mining or other operations in, on, over or under land or the making of any material change in the use of any buildings or other land.
The courts have stated that the existence of development is a matter of fact and degree.
There are two parts to the definition:
1. Operational development which involves building, engineering mining or other operations, and
2. Material change of use where it should be noted that it is the change which is the development and whether such change is material will depend upon whether it has a substantial physical impact on the land that is relevant to the town and country planning.
If planning permission is required then an application is made by the developer to the Local Planning Authority who will then consider the application and grant the application with or without conditions or reject it.
To try and reduce unnecessary applications the Secretary of State can make three types of order:
Use Classes Orders (such as The Town and Country Planning (Use Classes) Order 1987) which classify uses into groups and any change of use within the group will not require planning permission.
General Development Orders (such as the Town and Country (General Permitted Development) Order 1995) by virtue of these orders a planning permission for certain types of development on all land is automatically granted so that a developer does not have to obtain permission for the development from the local planning authority.
Special Development Orders which are similar to the General Development Orders in that by virtue of the orders planning permission for certain types of development is automatically granted, however the Special Development Order does not relate to all land only specific areas referred to in the order.
The District Council is responsible for all development control functions within their area. Development control includes not only the determination of applications for planning permission and related matters but also the enforcement of planning control.
Applications may be made for full (detailed) planning permission or outline permission.
The Town and Country Planning (Development Management Procedure) (England) Order 2010 (“the DMPO 2010”) specifies a standard form (1APP) for making a planning application.
An application has to be submitted in writing on the form approved by the SoS and include the particulars specified on the form. A new standard application form was introduced for all applications for planning permission from 6 April 2008 (Town and Country Planning (General Development Procedure) (Amendment) (England) Order 2008.
Applicants must submit a plan identifying the application site and any other plans and or drawings and information necessary to describe the proposed development. The application must be accompanied by the following:
(i) A Certificates of Ownership.
The applicant does not have to own the application land, but s65 TCPA 1990 provides that the applicant must certify to the LPA 21 days before the submission of the application that
1. No other person has an interest in the application land (Certificate A)
2. All other persons having an interest in the land , including tenants of
3. agricultural holdings, have been notified (Certificate B)
4. Some owners, but not all, have been identified and notified (Certificate C)
(ii) A Design and Access Statement (Art 8 DMPO 2010).
The content should explain how the applicant has considered the proposal and that he understands what is appropriate and feasible for the site in its context including:
1. the design principles and concepts that have been applied; and
2. how issues relating to access have been dealt with.
(iii) Any Particulars or Evidence required by the LPA.
The statutory requirements for an application are contained in s63(3) TCPA 1990. S62(3)(a) states that the applicant must submit “such particulars as the local planning authority think necessary”.
(iv) The Appropriate Fee (s30 TCPA 1990).
The LPA must acknowledge receipt of the application in standard form (Sch. 1 DMPO 2010) and has to validate applications for minor development within five working days and major development within 10 working days.
The LPA has a duty to publicise. S65 TCPA 1990 and the GDPO 1995 provide for three basic categories of publicity:
1. Display of a site notice;
2. Publication of a notice in a local newspaper;
3. Informing the owners and occupants of neighbouring property.
Categories (2) and (3) apply to planning permissions:
1. accompanied by an environmental statement;
2. which do not accord with development plan;
3. provisions which affect a public right of way.
Major development requires publicity under categories (1) or (2). Minor development not falling within category (2) requires publicity under category (1). Development affecting a listed building requires publicity under both categories (1) and (2).
Before determining the application the LPA may have to consult government departments and other agencies e.g. the Secretary of State where aspects of a planning application affect major highways (GDPO Art 15).
The LPA must then determine the application within a set period as set out in which varies according to whether the development is major development (13 weeks) or not (8 weeks). The date from which the determination period begins is the day after the date of the LPA’s receipt of a valid application (Art 29 DMPO 2010).
In determining any application the LPA must have regard to the development plan and any other material considerations (s70(2) TCPA 1990 National Planning Policy Framework (March 2012).
The LPA may grant an unconditional permission or a conditional permission; or it can refuse the application. A conditional permission may also be subject to a planning agreement under s106 TCPA 1990.
The LPA is required to maintain a register in prescribed form of prescribed information in respect of applications made to the LPA (Art 36 DMPO 2010). Part I of the Register contains copies of very planning application (including reserved matters) and Part II contains details of every planning permission. The Register is open to the public.
The provisions of this legislation control the use of land by requiring that permission must be obtained from the Local Planning Authority before any development can take place. The application for permission is considered in the light of a Development Plan drawn up by the Local Planning Authority. The whole procedure is overseen by the Secretary of State for the Environment.
Planning must be distinguished from Building Regulations, which set out how a building must be constructed. Although building control indirectly affects the environment in that certain standards of building materials must be used such as insulation nevertheless it is planning which has the greater effect.
Calling in by and Appeals to the Secretary of State
The Secretary of State may “Call in” a Planning Application. This is usually don if it is a major development and/or a public inquiry is required.
If the Local Planning Authority rejects the application for planning permission then an appeal lies to the Secretary of State.
Planning and the Environment
The main purpose of planning is to control the use of land for development. Environmental considerations are only one aspect of the process to assess whether the development should take place. A criticism made by the Royal Commission on Environmental Pollution in its Fifth Report was that the Planning process not only does not give pollution top priority it sometimes does not consider it at all. The matter is a political one and has ben the subject of much debate.
The system has three areas of relevance to environmental law:
1. Development Plans give the opportunity for environmental matters to be considered at the policy making level.
2. The requirement of planning permission enables planning authorities to reject certain activities before they start or impose conditions upon development and so seek to pre-empt and problems.
3. The power to impose conditions enables local authorities to have some continuing control over developments.
Planning Policy and the Environment
Since the 1970s the government policy has been towards pro development and de-regulation.
In relation to development this has been demonstrated by Government Circulars (e.g. 22/80 encouraging small businesses and private housing; 1/85 – emphasising that conditions should not be attached unless they could be justified on clear grounds; 14/85 – presumption in favour of development “There is always a presumption in favour of allowing applications for development having regard to all material considerations unless the development would cause demonstrable harm to interests of acknowledged importance). As a result of these directory circulars became more important than the Development Plans although such plans have regained some of their former importance since Developers prefer the certainty afforded by clear policies rather than a market based approach. The appeal process to the Sec of State was used to confirm this change of approach and there was a considerable increase in the success of appeals from both planning application rejections and enforcement notices.
In relation to de-regulation this was demonstrated by three White Papers setting out government policy (“Lifting the Burden” Cmnd 9571.1985; “Building Business not Barriers” Cmnd 9794.1986 and “Releasing Enterprise” Cm 512). General Development Orders in 1981 1985 and 1988 and changes in the Use Classes Order reduced the need for making planning applications considerably.
In addition local authorities were given power to designate certain areas Enterprise Zones (Local Government, Planning and Land Act 1980) or Simplified Planning Zones (Housing and Planning Act 1986) the effect of which was to remove most or all of the planning controls in those designated areas.
Also the Secretary of State could designate an Urban Development Area and put it under the control and management of an Urban Development Corporation removing it from the planning control of the local authority completely.
Certain Developments are approved through the use of Private Bills.
Environmental Considerations for Planning Decisions
In dealing with an application regard is to be had to the development plan: “the determination shall be made in accordance with the plan unless material considerations indicate otherwise”. Sustainable development does not have to be considered. In relation to development plans the waste framework Directive must be complied with.
Gateshead Metropolitan Borough Council v Secretary of State for the Environment (1993) dealt with question as to how far planning authorities could concern themselves with environmental matters. Planning permission was refused for a clinical waste incinerator on the grounds that the applicant Northumbrian Water Group plc had failed to supply sufficient information to demonstrate that the plant would operate without causing nuisance to the surrounding locality including the possible release of noxious substances. The Secretary of State ruled that while the planning system must determine the location of facilities of this kind taking account of the provision s of the development and other material considerations the Secretary of State considers that it is not the role of the planning system to duplicate controls under the environmental Protection Act 1990. It was considered that it was for, at that time, HM Inspectorate of Pollution, to deal with these matters. Both the High Court and the Court of Appeal confirmed this. PPG note 23 was released which states that:
1.The planning system should not seek to duplicate controls which are the statutory responsibility of other bodies.
2.Planning controls and pollution controls are separate but complimentary;
3.Decisions on planning applications for developments which may give rise to pollution must be made in accordance with the Development Plan unless material considerations indicate otherwise. Decisions must also be made in accordance with EU Directives.
4.Planning authorities should consult with the relevant pollution control authorities but it must be assumed that the pollution control provisions will be properly applied and enforced.
5.The planning decision should focus on whether the development is an acceptable use of the land rather than the control of the processes or substances themselves.
Material considerations referred to in 3 are:
a) the availability of land for a potentially polluting development taking into account its proximity to other development of land which may be effected;
b) the sensitivity of the area;
c) the impact on amenity;
d) any particular environmental benefits accruing form the project
e) the state of the site (whether it is contaminated or not);
f) the proposed after use of the site and feasibility of achieving restoration;
g) prevention of pollution from smoke fumes, gas, smell or noise, vermin bird or overblown litter;
h) impact on roads or other transport networks;
I) feasibility to restoring land to the standard for appropriate after use.
Planning considerations are:
a) phasing of operations,
b) the extent of tipping,
c) access to an from the site,
d) the general nature of the waste,
e) restoration plans,
f) after-care for a short term period.
However the criticisms of the PPG are that:
there may be other considerations but there is blurred line between the planning authorities considerations and what it can be assumed the pollution control bodies will deal with e.g.
– the possibility of land contamination arising from the proposed development
– protection and remediation.
– impact of any discharge of effluent or leachates;
– the risk of toxic releases;
– the waste generated by the development.
However these matters can only be taken into account to the extent that they have land use implications.
Environmental Impact Assessment
These became law in the UK in 1988 when the EU Directive 85/337 on Assessment of the Effects of Certain Private and Public Projects on the Environment were implemented.
The Directive required all Member States to adopt all measures necessary to ensure that before consent to a development is given private projects likely to have significant effect on the environment by virtue of their nature, size or location are made subject to an assessment with regard to their effects. The implementation was mainly through the Town and Country Planning Assessment of Environment Effects Regulations 1988 which came into effect on the 15th July 1988 12 days later that the date of compliance (3rd July 1988). The 1994 provisions have since amended these.
The regulations list categories of project which are to the subject of environmental assessment. The Directive makes a distinction between two categories of project and these are listed in Schedules 1 and 2 of the UK Regulations. Schedule 1 projects must be the subject of an Assessment and include the carrying out of building operations or the change of use of building or other land (which is a material change of use) to provide any of the following:
– crude oil refineries;
– thermal power stations;
– nuclear power stations;
– installations for the disposal of radioactive waste;
– integrated works for the initial melting of cast iron and steel;
– installations involving asbestos extraction processing of transformation;
– chemical installations;
– motorways and major roads;
– trading ports;
– special waste incineration;
– landfill.
Schedule 2 projects only require environment assessment where there are likely to be significant environmental effects by virtue of factors such as the nature size or location of the project. Schedule 2 lists numerous developments, which are broken down into broad industrial sectors e.g.
– agriculture
– extractive industries and energy;
Defence projects are exempt.
Circular 15/88 sets out criteria, which are likely to be significant:
a) whether the project is of more than local significance in terms of its size and physical scale;
b) the sensitivity and location of the development;
c) the polluting effect of the development and whether or not it is likely to give complex or adverse effects.
The Directive left the criteria as to whether an environmental assessment was required to individual member States. The UK chose to select a very flexible threshold whereas the Netherlands chose a very strict line. Although the UK lacks certainty nevertheless small but potentially very polluting projects may fall outside the rigid criteria.
Because of the lack of certainty an application may at any time prior to making an application seek an opinion from the local authority as to whether a development falls into either Schedule 1 or 2. This may be done informally or formally. If it is done formally then a record of the authority’s decision is made on a register and the applicant must be informed of the decisions within 3 weeks of the request. If an environmental assessment is considered necessary then the reason for this must be stated If the developer disagrees then appeal is to the Secretary of State. A person may conduct a voluntary environmental assessment.
Aims of Environmental Impact Assessments
The purpose of assessment sis to improve the procedure by which planning decisions are taken by ensuring that the local planning authority is fully informed of all issues including environmental consequences. Whether a project is approved or not is a matter for the local planning authority or the Secretary of State on appeal. The requirement for the environmental assessment is part of the EU’s policy principle of prevention.
A specific statement of the principle is found in DoE Circular 15/88, which states:
“Formal environmental assessment is essentially a technique for drawing together, in a systematic way expert quality assessment of a project ‘s environmental effects, and presenting the results in a way that enables the importance of the predicted effects, the scope for modifying or mitigating them, to be properly evaluated by the relevant decision making body before a decision is given. Environmental assessment techniques can help both developers and public authorities with environmental responsibilities to identify likely effects at an early stage and thus to improve the quality of both project planning and decision making.”
Carrying Out and Submitting the Environmental Impact Assessment
Before carrying out the environmental impact assessment the DoE recommends that the developer should consult with the local planning authority and the statutory consultees (NRA & HMIP – now the Environment Agency – Health and Safety Executive, Countryside Commission, English Nature) and the public. (The public will be aware of the assessment either from the register following a formal determination or when an environmental statement is produced following the assessment – the public has 21 days to inspect it before it is submitted with the planning permission – the public then has a further 21 days to make representations – the planning authority must make a decision within 16 weeks unless otherwise agreed). This is known as “scoping”.
Once the environmental assessment has been made an environmental statement which is to provide an objective account of the significant environmental effects of the project the environmental statement is submitted in support of the planning application. Although there is no set form it must contain certain information:
a) A description of the proposed development, including information about the site and design and scale of the development.
b) The data necessary to identify and assess the main effects on the environment.
c) A description and assessment of the likely significant effects direct or indirect on the environment. Environmental effects include:
physical environment,
human beings,
flora,
fauna,
soil,
waste,
climate,
landscape,
the interaction between any of these,
material assets, and
cultural heritage.
d) Where adverse effects are identified a description of the measures to avoid reduce or remedy the effects.
e) A non-technical summary of the information provided.
Discussion of Environmental Impact Assessment
Environmental Assessment is procedural. It is not substantive or prescriptive i.e. it is not a set of laws, which are backed by sanctions if not complied with. It sets out a course of action that should be followed. It seeks to ensure that those who make planning policies and decisions as to whether or not certain development projects should take place, are given all the available information in relation to the effect that such a development policy or project will have on the environment. They may therefore make an informed decision as to whether the development project should go ahead at all and if it does under what conditions.
• It will be noted that Environmental Impact Assessment is not merely limited to assessing the effects that a single project may have but may be applied to entire policies.
– It is potentially a completely integrated and interdisciplinary process with information relating to all areas of a development policy or project being analysed.
– It also is a practical implementation of the precautionary principle.
– It further engenders the principle of stewardship in that humans do not act without taking account and responsibility for the results of their actions.
– It also forms a bridge between the prescriptive pollution controls and the development and use of land.
Introduction of Environmental Impact Assessments
Environmental Assessment was first introduced in the USA in 1969 by the National Environmental Policy Act 1969, 42 USC 4321-4361. This piece of legislation was particularly significant because it enabled the environmental assessment not only of individual development projects but of whole policies. The Act was transferred to Europe by the Directive 85/337/EEC and was implemented in the UK by the Town and Country Planning (Assessment of Environmental Effects) Regulations brought into force under the enabling provision of the European Communities Act 1972 s 2. The Directive was a major step for the EU as it overtly started to interfere with the land use of Member States which had hitherto been seen as being the sole prerogative and sole sovereignty of those States.
Advantages of the EU/UK Version of EIAs
The Directive as implemented in the UK does ensure that:
1. environmental matters are now considered before a project is passed so that now the EIA is in place improvements can be made;
2. conditions can be specified to mitigate the effects of environmental damage.
Disadvantages of the EU/UK Version of EIAs
When the Act was transferred to Europe the Directive 85/337/EEC that introduced EIAS was delayed and undermined so that:
1. it applied only to projects and not to policies as well, however this is now in the process of being remedied with the directive on the introduction of Strategic Environmental Assessment (nevertheless note that the policy to approve development unless there is a reason not to is a policy in favour of development under an SEA this may change more to a policy that required developers to persuade decision makers that the development should go ahead);
2. it only forms a pathway to enable information to come before the decision makers it does little to stipulate either what should be considered or the quality of the information that is stipulated;
3. it only requires the decision makers to receive the information it does not guide as to how they should consider it and so far there is no evidence to say that an EIA will cause a project to be rejected it merely requires the information to be available – there is no screening of EIAs to require further information or to highlight information that may be required to assist the planning authority in its decision;
4. it is open to the decision makers to allow a project which is environmentally damaging or which at least is considered to be environmentally damaging by the EIA; this may be done on the basis of assurances that damage will be mitigated and that a balance is maintained between the benefits to society and the damage to the environment;
5. it is not possible to measure the effectiveness of the EIAs as there is no obligation upon the planning authority to give reasons for its decisions in relation to the EIA;
6. the EAs are carried out by the developer and are therefore are going to be produced in the best light for the project – there is no independent element also there is burden of proof on the developer to justify the development (see policy);
7. there is only consultation in the form of scoping there is no requirement of participation;
8. the conditions under which an EIA must take place are limited under the directive and its UK implementation in that there a set number of circumstances under which EIAs must be carried out and a further number of circumstances in which EAs may be carried out if there are likely to be significant environmental effects, the discretion being left to planning authorities – what happens when the planning authority wishes to put forward its development project – independence?!….
Implementation of the Directive
There is an appeal procedure as to whether or not an EIA should be carried out to the Sec of State for the Environment but the courts are reluctant to interfere with the merits of any decision which required an EIA – R v Swale BC [1991] JPEL 39
Problems with the present scheme are:
1. There is no obligation for the developer to state the need for the scheme although most do and justify it on the basis of employment but there is no burden of proof on the developer relating to the environment.
2. Developers will state what they perceive as the problems and set out how they are going to mitigate and environmental effects. Note that
• the developer has paid for the EIA and so will have predominantly those experts who will agree with the developers intentions – the EA will be partial;
• the developer will have the resources to examine the site and to put its case in the best light – scoping is often inadequate as the agencies have little time or money to follow up claims by the developer;
• due to government planning policy most parties scoped assume the development will go ahead and therefore consider mitigating issues rather than seek to fight the development on environmental grounds;
• objectors are merely “planning objectors” they are given no participatory role within the EIA procedure;
• the standard of EAs is very poor even when they are substantial documents:
• they are full of vague statements and summaries of opinion with few “hard facts”,
• the documents are perhaps substantial to prevent in depth consideration by planning authorities who do not have the resources for such examination or the time, due to the time limits placed on the procedure (6 weeks)
• there is no quality standard to the EIA e.g. no distinction is drawn between the damage that may be mitigated and that which is lasting;
• although there is a requirement that there should be a non-technical summary there often is not;
• the effects are often limited to the particular area;
• there is no means of enforcing the mitigating action that is put forward by the developer.
3. No account is taken of the cumulative effects opf development in an area each EIA is treated separately even though a development zone may have 2 or 3 EIAs at once.
4. The EA is seen as a bolt on requirement not as a part of the decision making process in passing or rejecting the development project.
5. Planners have two perceptions of the environment:
a) They may see it as being human centred, and for human convenience, public use and health, utility and recreation as being the main focus.
b) They may see it as an ecological interest and perceive it in its own right.
Planners try to reconcile these views by placing them in compartments allowing this development project for the trade off of a country park. The environment cannot be de-compartmentalised in this way, as is seen form the problems of air pollution. The environment knows no bounds.
Some statistics
EIAs had been voluntary since 1977 and many developers had seen them as a means of getting support for their proposed developments. The Governments and the Planning Authorities have been reluctant to dampen this enthusiasm by making the requirements too stringent.
2,300 compulsory EIAs have been carried out in the UK since 1988, which together with the voluntary EIAs increases to 16,500
12 EIAs considered in Denmark
1,000 EIAs considered in Germany
5,500 EIAs considered in France.
Strategic Environmental Assessments and Sustainable Development
If Environmental Assessment is to contribute to sustainable Development then SEA will be essential. An SEA will need to look at:
– trade offs and balancing between environmental benefits and losses and human benefits and losses in relation to comfort health etc..
– transparency of SEAs and EIAs;
– participation not just consultation;
– criteria and guidelines – standards;
– relating the SEA and EIA with the actual planning policies and projects and not just a bolt on requirement;
MINERAL EXTRACTION
The Balancing Act
Minerals can only be worked where they are found. The use of land for minerals has continued for as one mineral loses its economic importance such as ironstone and coal another takes its place e.g. aggregates.
Conflict: People need mineral so construction but do not want the extraction process “in their backyard” because:
It is visually unattractive;
it continues of along time;
it is noisy and dusty (nuisance);
it brings with it traffic.
And may be used for waste disposal.
Extraction affects all environmental media.
Also there is the principle that the countryside is to be protected for its own sake PPG 7 The country side and the rural economy.
Also government are committed to sustainable development and minerals are a non-renewable resource.
The Rio summit inspired government document – Sustainable development: The UK Strategy (Cm 2426, 1994) sets out the following issues:
– the need to encourage prudent stewardship of mineral resources while maintaining necessary supplies (what are necessary supplies?)
– the reduction of environmental impacts of mineral provision both during extraction and when restoration has been achieved (when it has been achieved?)
However government document MPG 6 allows landowners to exploit their land:
– in accordance with the presumption in favour of development
– the need for minerals;
– benefits in terms of employment and economic development of commercial enterprises.
There are a variety of controls on extraction such as
Planning;
Health;
Civil actions in tort;
Environmental protection.
Planning
The main control is in the ordinary planning system, which has been adapted to consider applications for mineral extraction, rather than a separate specialist system for hearing such applications. (see DoE Planning Control Over Mineral Working (the Stevens Report)) Planning permissions relating to mineral extraction are referred to as Licences.
This places the responsibility of Planning Authorities to control workings. Although the DoE has the main control others are involved such as MAFF.
MPG 1 shows an acceptance of environmental harm and Planning authorities have tended to allow extraction unless the environmental harm out weighs the economic need.
An answer to the dichotomy of development v environment and putting into effect the principles of sustainable development is long term planning. Certain Planning Authorities are designated as Mineral Planning Authorities (County Councils) and mineral Planning is a strategic planning matter rather than a local one.
MPA (under s 1(4) Town and Country Planning Act 1990) have jurisdiction over:
– the winning and working of minerals and erecting buildings and plant;
– mineral exploration;
– disposal of mineral waste;
– development of land used or previously used for mineral extraction where such development would prejudice restoration;
– the development of land relating to the deposit of refuse or waste.
The Stevens Report emphasised the importance of such authorities in having well trained staff and sufficient resources. In the absence of such staff local residents form an essential function and some Mineral Plans have provision for the forming of liaison committees.
The policy for mineral extraction in an area is provided by the structure plan and mineral local plans (see PPG 12)
MPG 1 General Considerations and the Development Plan System sets out the main aims of planning control in relation t mineral development being:
– to ensure that the needs of society for minerals are satisfied with proper regard for the protection of the environment;
– to ensure that any environmental damage or loss of amenity caused by mineral operations … is minimised as far as possible;
– to ensure that the land taken for mineral operations is reclaimed at the earliest opportunity and is capable of an acceptable use after working has come to an end;
– and to prevent the unnecessary sterilisation of mineral resources.
The imposition of the plan in accordance with which planning decisions have to be made (S54A Town and Country Planning Act 1990), has made some commentators refer to mineral extraction as being plan led however Plans need to be flexible to take account of economic factors changes in technology etc.
Continuing Control
1. As mineral extraction is not a one-off operation it is important that control is exercised not only in granting a mineral extraction licence but also in the way the mineral extraction is carried out. This is done by conditions. These are often very detailed and technical. They are set out in the form of schemes not only relating got the operation of extraction itself but also in relation to the restoration of the land after use (MPG 7 The Reclamation of Mineral Workings. These schemes have been referred to as Permissions within permissions but their legality has been recognise in the case of Cadogan v Sec of State for the Environment [1993] JPL 664.
S 106 agreements under the Town and Country Planning Act 1990 are also often used both in relation to the operation of the site and the subsequent restoration.
2. As the environmental effects of extraction are not confined to the period of extraction but also to the period after extraction e.g. the use of the site as landfill for waste 72(5) and Sch 5 of the Town and Country Planning Act 1990 provides that permissions for mineral extraction may be granted subject to a restoration condition and after care condition and since 1991 this power may be exercised over development involving the deposit of refuse or waste materials. The after care period is 5 years unless such other period is prescribed. The MPAs are required to conduct extensive consultations before making such conditions and appeal lies to the Sec. of State however these days the practice is to engage in negotiations while the planning stage takes place, which can last up to three years.
3. As economic and environmental conditions can change over the period of time in which the mineral extraction operations are taking place the MPA has power to review and modify the license.
CONTAMINATED LAND
Introduction
It is estimated that there are some 27,000 hectares of contaminated land in the UK. Many have been contaminated many years ago. The contaminated land system deals with historical waste as is indicated by the title of the government white paper Paying for Our Past. This is therefore primarily a planning issue as it relates to the remediation of contamination for the future use of the land.
The first proposed provisions relating to contaminated land
S 143 of the EPA 1990 required local authorities to maintain a register of contaminated land to be open for inspection to the public at reasonable hours free of charge. The aim of these registers was to identify and assess sites, which were potentially contaminated to assist in the remediation of these sites with a view to re-development.
Objections to the registers were as follows:
1. There were no provisions for the removal of the sites form the register once the land had been cleaned up. Therefore there was little incentive to clean up a site once it was on the register.
2. The land would be blighted once it was included on the register and developers would not be interested in acquiring a site that could pose problems on sale or leasing due to the necessity of a purchaser or tenant investigating the contamination of the site.
3. This would lead to a reduction in the value of land included on the register and lending institutions would be reluctant to lend.
4. The registers did not record the actual contamination of the land merely potential contamination evidenced by past uses of the land. Some land would not be contaminated due to having been cleaned up and yet would appear on the register. Other land would not appear on the register, as there was o record of its use and yet would be contaminated.
5. The registers only record potential contamination they did not assist in the remediation once the land had been identified as contaminated. Identification of contaminated land could be carried out by prospective developers, purchasers etc without too much difficulty. Also scientific advances now allow of the remediation of contamination in most cases to a standard acceptable for a range of uses. These therefore were not the major issues. It was submitted that the main issues were who was to remedy the contamination and who was to pay for the remediation. It was suggested that the standard of such remediation only became a major issue as part of the consideration of the cost of remediation.
The registers addressed none of these issues. It was therefore announced in March 1993 that the proposals for setting up registers would be withdrawn and that there would be a review of the clean up of contaminated land.
There was no statutory obligation to clean up contaminated land unless there was some harm:
a) pollution of the environment
b) adverse effects on human health or safety
c) an escape of pollutants.
Where clean up was required it is merely to minimise these risks rather than making the site clean. There are now new provisions by virtue of s 57 of the Environment Act 1995.
The new provisions relating to contaminated land
Part II A of the Environmental Protection Act 1995 was inserted by s 57 of the Environment act 1995 Contaminated Land (England) Regulations 2000following a number of government papers the first of which was “Paying for Our Past”.
• A duty is imposed on local authorities to identify any contaminated land in their area.
• Contaminated land is defined as land that is, due to the substances contained in it, likely to cause significant harm to human health or property of the health off other living organisms or the pollution of controlled waters.
• Where the harm is likely to be serious the land is to be designated as special site.
• The enforcing authority (i.e. the local authority or, in the case of special sites, the Environment Agency) must determine what remediation is to be undertaken in respect of the land and who is to be responsible for the remediation (the appropriate person).
• The person responsible for the remediation is the person who caused or knowingly permitted the contaminants to be present on the land. If no such person can be found the person responsible will be the owner or occupier of the land.
• The enforcing authority must serve a remediation notice on the person responsible requiring that person to undertake the remediation unless this would cause hardship.
• If the person fails to comply with the notice the enforcing authority any carry out the remediation itself and recover the costs from the person responsible. (A charging order against the land can be made so that if the land is sold part of the proceeds must go to paying for the remediation.
• The person responsible will also be liable to criminal prosecution.
• Appeal lies against remediation notices and charging orders.
• Each enforcing authority must keep public registers of the contaminated land it has identified, noting any remediation notices served and the remediation that has take place.
Meaning of Contaminated Land
s 78A(2) EPA 1990:
“Contaminated land is any land which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in, on or under the land, that-
a) significant harm is being caused to there is a significant possibility of such harm being caused; or
b) pollution of controlled waters is being, or is likely to be, caused”.
s 78A(4) EPA 1990:
“Harm” means “harm to the health of living organisms or other interference with the ecological systems of which they form a part and, in the case of man, includes harm to his property”. It does not include smells, which will be dealt with under Part III of the EPA 1990 relating to statutory nuisances.
s 78A (9) EPA 1990:
“Substance” means “any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour”.
The harm-based definition is intended to reflect the “suitable for use” approach.
This approach was referred to in the 1st Report on Contaminated Land of the Environment Committee of the House of Commons, which defined contaminated land as being ‘land which represents an actual or potential hazard to health or the environment as a result of current or previous use.’ What would be a hazard in relation to agricultural land would not be in relation to the construction of an office block. Also land that is used as a car park will not be considered contaminated but if it were to be used for the construction of a school it would be. Therefore land may change from not being contaminated to being contaminated.
Identification of Contaminated Land
A duty is imposed on local authorities to cause their areas to be inspected and to identify any contaminated land in their area. In determining whether land is contaminated or not the local authority must act in accordance with guidance by the Secretary of State of the Environment. The guidance states that for the purposes of defining contaminated land, the authority should disregard any harm or interference other than:
• harm to health of human users or occupiers of the land in its current use or to health of current users or occupiers of other land;
• harm or interference with the ecosystems protected under the Wildlife and Countryside Act 1981, EC Directive 79/409/EEC on the Conservation of Wild Birds, or the EC Habitats Directive 92/43/EEC
Notice of the identification of the contaminated land must be given by the local authority to:
the Environment Agency;
the owner of the land;
the occupier of the land;
any persons who appears liable to have a remediation notice served upon them.
Special Sites
Under s 78C of the EPA 1990, contaminated land is to be designated as a special site by a local authority if they come within a definition to be prescribed in regulations to be made by the Secretary of State. Such sites will then become the responsibility of the Environment Agency. Although these regulations have yet to be made, the Act states that the Secretary of State is to consider:
• land whose condition could cause serious harm or serious pollution of controlled waters by reason of the presence of substances on it or
• that the Environment Agency is likely to have expertise in dealing with the significant harm which makes the land contaminated and so should be placed under its control.
Closed landfill sites are likely to be designated special sites.
Remediation
Under s 78A(7)”Remediation” means:
• “doing anything for assessing the condition of relevant land, adjacent land affected controlled waters doing works or carrying out operations; or
• taking steps in relation to such land or waters to prevent, minimise, remedy or mitigate the effects of any relevant or significant harm or pollution of controlled waters; or
• restoring such land or waters to their previous state, or
• inspecting such land or water subsequently to keep their condition under review”
Remediation Notice
Where land is identified as being contaminated the enforcing authority must serve a remediation notice on the appropriate person specifying what the person has to do by way of remediation and the time within which it has to be done.
Under s 78E(4) and (5) the enforcing authority may only require reasonable remediation measures having regard to the likely costs of such measures and the seriousness of the harm in question. The authority is also to have regard to the Secretary of States guidance on what is to be required to be done by way of remediation, the standard of the remediation and any of the issues relevant to deciding what is a reasonable requirement in any given case. Before serving a remediation notice on appropriate person s 78H(1) – (3).
Environmental Permits and Integrated Pollution Prevention and Control (IPPC) & Waste Management
Environmental Permits (Regulation 12)
Pollution Prevention and Control Act 1999 enabled:
Environmental Permitting (England and Wales) Regulations 2010 (SI 2010 No. 676)
[Puts Pollution Prevention and Control Directive (91/61/EC) and Landfill Directive (99/31/EC) into effect]
(1) A person must not, except under and to the extent authorised by an environmental permit:
(a) operate a regulated facility; or
(b) cause or knowingly permit a water discharge activity or groundwater activity.
(2) A person may operate an exempt facility if:
If the water is a discharge activity or groundwater activity is an exempt facility.
If it is radioactive waste where:
(a) the holder of the waste holds an environmental permit which allows the disposal of the waste to the disposer and
(b) the waste is disposed of in accordance with that permit.
Application (Regulations 13-25 and Schedule 5)
An application for a permit should be made by the operator of the regulated facility. Where two or more operators run different parts of the same regulated facility they each need to make an application for their part and will need to meet their own permit conditions.)
Where a permit requires the operator to undertake works to land which they do not own, the operator must obtain consent form the owner.
The regulator can authorise or consolidate several operations by the same operator under a single site permit. This is the case where the operator operates:
More than one regulated facility on the same site (with some exceptions).
More than one mobile plant.
More than one standard facility (with certain exceptions).
Environmental permits, once granted, remain in force until they are revoked, surrendered or replaced with a consolidated permit.
Permits can be varied either by the operator or on an application made by the regulator. However, generally, the regulator cannot, on its own initiative and without the agreement of the operator, vary a permit for a stand-alone water discharge activity if it has been granted or varied within the last four years (some exceptions).
Permits can be transferred from one operator to another in part or as a whole if the existing and new operators make a joint application or in some cases a notification, to the regulator..
The regulator may revoke a permit in part or as a whole but to do so must serve a notice specifying the justification for the revocation and the extent of the revocation if only relating to a part revocation
The operator may be required to take steps, such as remediation, following the facility ceasing operation and this may be a condition of the permit that is granted or a condition of the revocation notice. The regulator must issue a certificate stating that they are satisfied with the steps that have been taken before the permit or revocation notice are discharged.
Operators of Part B installations (except waste operations), mobile plant, a stand-alone water discharge activity or a stand-alone groundwater activity may surrender their permit by notifying the regulator. The permit ceases to have effect on the date of notification.
An application to surrender a permit may be made by the operator and must be accepted by the regulator if they are satisfied that the site has been returned to a satisfactory state and there is no risk of pollution.
Any ‘rule-making authority’ e.g. Secretary of State, Welsh Assembly or the Environment Agency) can publish ‘standard rules‘ which specify the conditions to be met by a ‘class of facilities’ and can be used instead of site-specific conditions in which case a ‘standard permit’ will be issues. Standard rules cannot be varied unlike site-specific conditions. But can be revised or revoked.
There is a right of appeal to the Secretary of State/National Assembly of Wales. Appeals can be made in a number of instances, for example: against enforcement notice served by the regulator, refusal of a permit, and rejection of application for transfer, etc.
Regulators (Regulations 30 -35)
The Environment Agency regulates:
o Part A(1) installations.
o Part A(1) mobile plant.
• Waste operations carried out at a Part B installation.
• Waste operations carried on other than at an installation, or by Part A mobile plant or Part B mobile plant.
• Mining waste operations
The Local Authority regulates:
• Part A(2) installations or Part A(2) mobile plant.
• Part B installations or Part B mobile plant but not any of the following regulated facilities carried on at the installation or by means of mobile plant:
o A waste operation (unless Part B).
o A mining waste operation.
o A water discharge activity.
o A groundwater activity.
The Secretary of State or National Assembly of Wales may direct the local authority to undertake the duties of a Environment Agency (except waste form mining operations) and vice versa allowing a single regulator for each site and thus a single permit.
Powers & Functions of the Regulator (Regulations 57-66)
Where there is considered to be a risk of serious pollution from a regulated facility under an environmental permit, the regulator may take steps to remove the risk and charge back the costs to the operator. Costs are not recoverable if the operator shows that there was no risk of serious pollution or that the costs were unnecessary.
The Environment Agency may specify, by notice to the local authority, discharge conditions or limits for discharges to water for Part A processes under the control of a local authority.
The Environment Agency must publish its policy in relation to public consultation. Fee schemes may be prescribed to allow the regulator to charge operators for applications, variations, transfers, surrender and subsistence.
Enforcement & Suspension Notices (Regulations 36-44)
Enforcement notices can be served by the regulator if an operator is not complying with a permit or its conditions.
Suspension notices can be served where there is a serious risk of pollution. Whilst this remains in force the operation is no longer authorised under a permit.
Offences
It is an offence to:
• Operate a facility without a permit or in contravention of a permit or its conditions.
• Fail to comply with a suspension, enforcement, prohibition, landfill closure or mining waste facility closure notice.
• Fail to comply with any court order following conviction.
Fines
• Summary conviction: not exceeding £50,000 and/or 12 months’ imprisonment.
• Conviction on indictment: a fine and/or up to 5 years’ imprisonment.
Defences
It is a defence to prove that the acts that caused the contravention were done in an emergency to avoid danger to human health. This is not an absolute defence – the operator must also have taken reasonably practicable steps to minimise pollution and must have notified the regulator as soon as is reasonably practicable.
A person who knowingly permits a water or groundwater discharge activity from an abandoned mine (or part) is not guilty of an offence unless:
• the person is the owner or former operator and
• the mine was abandoned after 31st December 1999
Offences by a Body Corporate
If an offence is committed by a body corporate but is shown to be as a result of the consent or connivance of an officer or attributable to their neglect the individual can be held liable in addition to the body corporate.
Enforcement by the High Court
The regulator may take proceedings in the High Court for securing compliance with an enforcement notice, suspension notice, prohibition notice, landfill closure notice or mining waste facility closure notice.
Power of Court to Order Remediation
In addition to or instead of penalties the court may order steps to be taken to remedy those matters relating to the conviction.
Penalties
Fines:
Summary conviction: not exceeding £50,000 and/or 12 months’ imprisonment.
Conviction on indictment: a fine and/or up to 5 years’ imprisonment.
Defences (1)
It is a defence to prove that the acts that caused the contravention were done in an emergency to avoid danger to human health. This is not an absolute defence – the operator must also have taken reasonably practicable steps to minimise pollution and must have notified the regulator as soon as is reasonably practicable.
Defences (2)
A person who knowingly permits a water or groundwater discharge activity from an abandoned mine (or part) is not guilty of an offence unless:
the person is the owner or former operator and
the mine was abandoned after 31st December 1999.
Registers
Regulators must maintain a public register of regulated facilities. The register must be available to the public free of charge. Local Authorities must keep copies of Environment Agency regulated facilities. Information can be excluded for reasons of National Security or reasons of commercial or industrial confidentiality
Regulated Activities
Disposal by Incineration
Part A (1) activities include:
• The incineration of any waste being or comprising any specified chemicals (Br, Cd, Cl, F, I, Pb, Hg, N, P, S, Zn)
• The incineration of any other hazardous waste (unless exempt)
• The incineration of municipal waste in a plant rated at over 3 tonnes per hour
• The incineration of any other waste, including animal remains in a plant rated at over 1 tonne per hour
• The burning out of residues from metal drums having been used for the storage or transport of chemicals
Disposal by Incineration
Part B activities include:
• The incineration of any non-hazardous waste in a plant rated at less than 1 tonne per hour (unless in an exempt incinerator)
• The cremation of human remains
• An exempt incinerator is one designed to incinerate at a rate of 50kg or less per hour but not being used for the incineration of clinical waste, sewage sludge or screenings or municipal waste.
Disposal of Waste at Landfill
Part A(1) activities are:
• The disposal of waste in a landfill receiving more than 10 tonnes per day or with a total capacity of more than 25,000 tones excluding disposals in landfills of inert waste only. At sites where the waste handling is below these thresholds the Waste Licensing system will continue.
Recovery of Waste
Part A(1) activities are:
• Distillation of any oil or solvent
• Solvent reclamation/regeneration
• Recycling/reclamation of inorganic materials, other than metals and metal compounds
• Regeneration of acids/bases
• Recovering of components from catalysts
• Oil re-fining or other re-uses of oil
Conditions
Conditions must ensure Emission Standards are set that will ensure that Environmental Quality Standards will be fulfilled. Best Available Techniques are applied. Best Available Techniques as the most effective and advanced stage in the development of activities and their methods of operation
Best Available Techniques
• Best means the most effective in achieving a high level of protection of the environmental as a whole.
• Available means techniques which are developed on a scale which allows implementation in the relevant industrial sector under economically and technically viable conditions taking in to consideration the costs and advantages …as long as they are reasonably accessible to the operator. Precaution and prevention is balanced with costs and benefits.
• Techniques include the design, maintenance and operation of an installation.