WASTE FACILITIES AUDIT ASSOCIATION Legal Update – 22 May 2012 Andrew Waite, Partner Aidan Thomson, Partner

THE MEANING OF WASTE Discard the Burden Principle Page 2 © Berwin Leighton Paisner

BY-PRODUCTS – ARTICLE 5 WFD 2008 Further use is certain use without further processing other than normal industrial practice produced as integral part of production process further use is lawful (product, environmental and health protection requirements/no overall adverse environmental or human health impacts) Page 3 © Berwin Leighton Paisner

END – OF – WASTE STATUS Effect of case law Recovery – conversion into marketable products material required but no need for recovery? Page 4 © Berwin Leighton Paisner

WASTE OR RAW MATERIALS? EA v Thorn products returned by customers retrieved from retailers repaired by T and offered for resale Page 5 © Berwin Leighton Paisner

WASTE OR RAW MATERIALS? Page 6 © Berwin Leighton Paisner P C R SITE ASITE B

WASTE OR RAW MATERIALS? It depends on the circumstances DoE v O’Hare (2007) NI EA v Inglenorth (2009) R v W, C and C (2010) R v Evan Jones (2011) Page 7 © Berwin Leighton Paisner

DUTY OF CASE – S34 EPA Duty on any producer etc. to take all such measures applicable to him in that capacity as are reasonable in the circumstances to prevent any contravention of section 33 (unlicensed deposits)….. on the transfer of the waste to secure that the transfer is only to an authorised person….. Page 8 © Berwin Leighton Paisner

DUTY OF CARE Mountpace v Haringey LBC (2012) Owner hired contractor to refurbish premises and remove waste Contractor passed waste to flytipper Page 9 © Berwin Leighton Paisner

DUTY OF CARE Mountpace v Haringey LBC (2012) Who is the waste producer? Nature of the duty When did measures have to be taken? Did the waste producer comply? Page 10 © Berwin Leighton Paisner

WASTE – LIABILITY IN NUISANCE Barr v Biffa Waste Services Ltd 152 households complained of odour from Biffa’s landfill site in Hertfordshire Landfill sites are highly regulated by the Environment Agency

WASTE – LIABILITY IN NUISANCE Two important legal issues were discussed: When someone is operating a facility in accordance with a permit and without negligence, can third parties still claim nuisance at common law? How do you demonstrate a loss of amenity?

WASTE – LIABILITY IN NUISANCE View of the High Court (2011) View of the Court of Appeal (2012) Appeal to the Supreme Court?

WASTE – LIABILITY IN NUISANCE Factually complex case Significant costs have been incurred Damages per claimant are low for these kinds of cases Proportionality? Part of a trend?

WFAA – LEGAL UPDATE – MAY 2012 Andrew Waite & Aidan Thomson This document provides a general summary only and is not intended to be comprehensive. Specific legal advice should always be sought in relation to the particular facts of a given situation.