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

  2. THE MEANING OF WASTE • Discard • the Burden Principle

  3. 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)

  4. END – OF – WASTE STATUSEffect of case law • Recovery – conversion into marketable products • material required but no need for recovery?

  5. WASTE OR RAW MATERIALS? EA v Thorn • products returned by customers • retrieved from retailers • repaired by T and offered for resale

  6. WASTE OR RAW MATERIALS? C P R SITE A SITE B

  7. 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)

  8. 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…..

  9. DUTY OF CARE Mountpace v Haringey LBC (2012) • Owner hired contractor to refurbish premises and remove waste • Contractor passed waste to flytipper

  10. 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?

  11. 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

  12. 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?

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

  14. 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?

  15. 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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