Conference: Legal Workshop Jenny Watts 23 rd October 2013

Fine Talk: Trommel Fines United Resource Operators Consortium Formed in response to Industry turmoil re Trommel Fines – May 2012 Collective “Voice” for the Skip & WTS Sector NOT – FOR – PROFIT 2

Background Landfill Tax – Fiscal Instrument aim to divert wastes from landfill Finance Act 1996 – LFT Escalator £8 until 2014 Current charges per tonne; -£72 – standard rate -£2.50 – lower rate ‘Qualifying Material’ 3

Background Qualifying Material Order 2011 –Group 1: Rocks & Soils (Naturally occurring) -Ceramic Materials -Minerals (processed or prepared) Trommel Fines – traditionally qualified for lower rate Important – WTN adequately describes the load 4

Background 18 th May Guidance Brief: 15/12 – trommel fines do not qualify!! 1 st June Guidance Brief: 18/12 – lacked consultation, certainty & suitable notice period 15 th June 2012 – meeting with HMRC: Working Group: UROC, ESA & CIWM 4 th July 2012 – Interim Guidance – maintained status quo 5

Interim Period 9 th September 2013 – Further Draft Guidance 21 st October 2013 – Informal Consultation Response due date 11 th November 2013 – Implementation Date! 5 th November HMRC Meeting 6

Industry Concerns Lack of engagement UROC – guidance lacks clarity re “evidential burden” Representations from SME sector; -Landfill Operators – err on the side of caution -Skip price increases – Flytipping – LA enforcement resources -Construction: economic recovery -Trommel Plant – no economic incentive, waste hierarchy -LFT Escalator – achieved diversion from landfill 7

Industry Concerns High volume litigation – operators challenging tax assessments Business closure – lack of facilities, unemployment Local Authority SME contractors - e.g. road sweepings Unnecessary confusion!! 8

Evidential Burden Accepted that HMRC cannot accommodate all eventualities – but need to resolve the issues Guidance example: “fines are variable in nature and, where it is impossible to determine origin and exact nature of the source material = standard rate” Domestic Skips & Duty of Care WTN HMRC cannot preclude evidence 9

Solutions? S42 of the Finance Act 1998 (as amended) The Treasury must; –(a) set criteria to consider from time to time what material is to be listed; –(b) keep those criteria and under review; and –(c) revise them whenever they consider they should be revised. 10

Solutions? (5) The Commissioners must publish the criteria (and any revised criteria) set by the Treasury. (6) In determining from time to time what material is to be listed, the Treasury must have regard to- (a) the criteria (or revised criteria) published under subsection (5) and (b) any other factors they consider relevant.’ ANOTHER GROUP = TROMMEL FINES??? 11

Solutions? Process Protocol? - Operational procedures & testing regime (TOC, LOI?) “incidental” – meaning? Potential for pollution or to cause harm -Low potential for greenhouse gas emissions; -Low polluting potential in the landfill environment Pilot Sites ?! 12

Consultation Response Clear, prescriptive, unambiguous & suitable for all parties concerned Extend implementation date for review and exploration of options Fit for purpose meaningful guidance!! HMRC: ed that due to influx and content of responses – “unlikely” to implement on 11 th November! 13

Sentencing Council: E nvironmental Sentencing Guidelines June 2013 Environmental Protection Act 1990 Control of Pollution Amendment Act 1989 Environmental Permitting Regulations

Sentencing Council: Environmental Sentencing Guidelines Do you agree with the proposed approach taken for the other environmental offences listed? KBT: strongly urges the Sentencing Council to expressly include other relevant and analogous environmental offences that carry lower statutory maxima, to include; Dog Control Orders (Prescribed Offences and Penalties, etc.) Regulations 2006which implements sections 55 of the Clean Neighbourhoods and Environment Act S55(4): Breach of a dog control order (level 3) Environmental Protection Act S87: Offence of leaving litter (level 4) serious in nature and effect as those listed extremely important for local environmental quality 15

Financial Worth?! Do you think the guidance on obtaining financial information is sufficiently detailed and helpful? Financial Means form! Other financial means should be requested offender’s assets; -Property -Cars -Bank Statements Not to confuse with POCA! 16

Sentencing Factors Do you think the approach in step three achieves the objectives of punishment, deterrence and removal of gain in a fair and proportionate way? Court invites the prosecutor to assist in the decision making process Fully appraised of all the factors of the offending e.g. Community Impact Statement Especially when not many environmental crime cases 17

Ancillary & Community Orders Do you think the wording on ancillary orders in step six is appropriate? KBT strongly agreed: especially with reference to forfeiture of vehicles in cases of flytipping. Curfew Remedial work to restore any damage or impact on the environment - restorative justice should have a focus on work relating to environmental quality. No lasting damage - compensation to be paid into local environment funds for improving local environmental quality. 18

Additional Comments Are there any further comments you wish to make? Work with the magistrates’ courts: highlight impact of environmental crime on LEQ Engagement with the Magistrate Association: specific training - JSB Merit in designated circuit benches dealing with environmental crime 19

Network Events FREE to KBT Members Waste Review: Enforcement & Regulation To Enforce or Not to Enforce? Flytipping Partnership – NFTPG 20

The End! Questions? Enjoyed the 2013 KBT Conference Safe journey home – See you next year! 21