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WASTE FACILITIES AUDIT ASSOCIATION. Legal Update – 22 May 2012 Andrew Waite, Partner Aidan Thomson, Partner. THE MEANING OF WASTE. Discard the Burden Principle. BY-PRODUCTS – ARTICLE 5 WFD 2008. Further use is certain use without further processing other than normal industrial practice

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WASTE FACILITIES AUDIT ASSOCIATION

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Waste facilities audit association

WASTE FACILITIES AUDIT ASSOCIATION

Legal Update – 22 May 2012

Andrew Waite, Partner

Aidan Thomson, Partner


The meaning of waste

THE MEANING OF WASTE

  • Discard

  • the Burden Principle


By products article 5 wfd 2008

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)


End of waste status effect of case law

END – OF – WASTE STATUSEffect of case law

  • Recovery – conversion into marketable products

  • material required but no need for recovery?


Waste or raw materials

WASTE OR RAW MATERIALS?

EA v Thorn

  • products returned by customers

  • retrieved from retailers

  • repaired by T and offered for resale


Waste or raw materials1

WASTE OR RAW MATERIALS?

C

P

R

SITE A

SITE B


Waste or raw materials2

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)


Duty of case s34 epa

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…..


Duty of care

DUTY OF CARE

Mountpace v Haringey LBC (2012)

  • Owner hired contractor to refurbish premises and remove waste

  • Contractor passed waste to flytipper


Duty of care1

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?


Waste liability in nuisance

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 nuisance1

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 nuisance2

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 nuisance3

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

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.


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