Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger considers the environmental priorities of the DUP manifesto, the new Definitive Guideline on reduction of sentence for a guilty plea, and an industry Guide on waste classification published by the Environmental Services Association and the Waste Industry Group.

The DUP manifesto and the environment

Not a lot of time was spent at 6 Pump Court considering the Democratic Unionist Party’s manifesto and its priorities for the environment. However, in light of the election result, we have set out the key points. It should be noted that the words “climate change” and “environment” do not appear in the manifesto itself and its overriding focus appears to be on the economy and improving the financial importance of Northern Ireland.

Energy

• Energy companies to place further downward pressure on household bills;
• Establish a comprehensive new energy strategy for Northern Ireland;
• Improved interconnection with Great Britain;
• Develop new generation capacity;
• Energy market stability.

Air quality

• Support expansion at Heathrow with increased air connectivity to Northern Ireland;
• Establish a new Air Routes Task Force and abolish Air Passenger Duty.

Brexit

• Proportionate regulatory regime which can promote competitiveness, with legislation to suit Northern Ireland’s local needs;
• Local input into new UK agriculture and fisheries policies which can offer sustainability and new growth opportunities;
• Particular importance of agri-food sector to Northern Ireland economy recognised and reflected.

Definitive Guideline for reduction in sentence for a guilty plea in force

The Sentencing Council’s Definitive Guideline for reduction in sentence for guilty pleas applies to all cases where the first hearing took place on or after 1 June 2017.

The Guideline identifies that the following maximum levels of reduction in sentence should apply:

• Plea indicated at the first stage of the proceedings – one-third;
• Please indicated after the first stage of proceedings – one-quarter, with a sliding scale of reduction thereafter deceasing to one-tenth on the first day of trial.

Pleading guilty at the first appearance in the Crown Court will therefore normally only attract a discount of one-quarter. The difference in credit given for a guilty plea at the Magistrates’ Court and a guilty plea in the Crown Court, particularly for organisations with very high turnover figures, may therefore be significant.

Key for those involved in complex environmental cases is the following exception:

“Where the sentencing court is satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made.

In considering whether this exception applies, sentencers should distinguish between cases in which it is necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact and law guilty of the offence(s) charged, and cases in which a defendant merely delays guilty plea(s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.”

The Guideline can be found here 

Guide published on waste classification

The Environmental Services Association and the Waste Industry Group on Waste Classification have published a waste industry guide intended to help operators avoid common errors and misconceptions in classifying waste. The Guide lists the most common classification mistakes, explains why they are wrong and how they can be rectified.

Key topics addressed by this short Guide include:

• The limits of using Landfill Waste Acceptance Criteria to classify a waste;
• Assuming an EWC Code rather than analysing the waste;
• Misunderstanding how waste containing asbestos is classified.

It comes at a time when the Environment Agency has backed away from providing clear guidance on end of waste. The beginning of the death throes of the end of waste process began some time ago with the conclusion of the excellent WRAP/Environment Agency Quality Protocol series. These industry/regulatory collaborations guarantee that so long as a specified framework process has been observed, then the final product will normally be considered end of waste.

Then in a short email dated 19 December 2016 addressed “Dear Customer”, the Environment Agency announced the closure of the Definition of Waste Panel, a mechanism set up with the sole purpose of providing prospective end of waste guidance to industry.

End of waste guidance began after the Environment Agency picked up the challenge laid down in June 2007 by the Court of Appeal in OSS. Adopting the analysis of the editors of the Environment Law Reports, the Court of Appeal described the ECJ case law on waste as “not fit for purpose”. In a coda to his judgment, Lord Justice Carnwath added: “I hope that it may be possible for DEFRA and the Agency to join forces in providing practical guidance”.

The newly published Guide can be found here

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