Annual Environment Roundtable insights

B P Collins annual round table discussion 

With the Prime Minister about to set out a new 10-point plan to boost net-zero commitment, the waste sector is under the spotlight again. Before Boris Johnson makes his announcement, you can read about what leading organisations have to say about the sector including the impact of Covid-19, how waste crime may be tackled in the future and positive predictions for the industry in a roundtable discussion hosted by B P Collins' environment team. 

Impact of the pandemic on the waste sector 

Matthew Farrow, EIC: The outbreak of Covid-19 has been very difficult and harsh. But alongside this there were some short-term positives, such as the noticeable improvement in air quality during lockdown, which has reinforced public commitment to environmental causes such as clean air and climate change. But the circular economy agenda has not benefitted in the same way.  

The pandemic has also caused a shift in attitude towards single use plastics which have had some vital uses such as in PPE. 

The Office of Environmental Protection is also a short-term casualty of the pandemic – it should have been getting Royal Assent by now and preparing to hold the Government to account.  

David Smellie, B P Collins: In a normal world the waste sector would have had some direction by now, but with a focus on the pandemic, we are still no further forward on how Brexit will affect the industry. 

Paul Britton, Thames Valley Chamber of Commerce: It feels that workers in the waste sector have been recognised as playing a critical role, alongside health workers and delivery drivers. It’s been rightly elevated to a vital public service, rather than something that ‘just happens.’ 

Jeff Rhodes, Biffa: I agree. Whilst household waste and recycling centres were closed and some Council recycling collections were suspended, fly tipping increased, so the public are coming to realise that waste management is, first and foremost, about protecting the environment. It’s given the industry heightened recognition as an essential service. 

Antonia Grey, BMRA: In terms of metal recycling we have seen differences across the country during lockdown. There’s still a lot of scrap being created in manufacturing hotspots, particularly in areas were ventilators were being built.   But generally, we are seeing a reduction of around 70% in scrap metal as less ‘end of life’ vehicles and white goods are being recycled. We need another stimulus package, similar to the scrappage scheme in 2009, to encourage people to get rid of their cars. 

Matthew Farrow, EIC:  There have been some suggestions that because of people’s renewed appreciation of cleaner air since the lockdown, that another scrappage scheme might be introduced to encourage people to get rid of their diesel cars. 

Impact of stimulating the economy on the waste management sector   

Simon Copping, Golder Associates:  The ultimate aim of the waste strategy is to reduce waste in all its forms. During an economic downturn we expect to see a reduction in waste produced in line with slower economic activity.  If we do not see a rapid recovery, but a sustained recession, resulting in increased unemployment we would expect individual habits to change and a potential acceleration of the current trends of ‘up cycling’ and ‘no buy’ or put another way, people may buy less, re-use and recycle more.  

It’s interesting to look at how the Government will kickstart the economy and whether these actions will override the intentions of the National Waste and Resource Strategy.  For example, it is likely that Government money will be pumped into shovel ready, traditional engineering projects, which aren’t necessarily aligned with the green agenda?  

Craig Williams, partner, B P Collins: There is an interesting tension between the courts’ apparent willingness to hold the Government to account on its green strategy on one hand, and the Government’s plans to boost the economy on the other. Before lockdown, the courts seemed ready and willing to enforce the Government’s waste strategy and achieve net zero targets, with the Court of Appeal ruling that the Heathrow proposal was illegal because the Government hadn’t taken account of its own strategy. During lockdown, the Supreme Court granted permission to appeal the Court of Appeal’s decision on Heathrow.  If the Court of Appeal decision is overturned, the Government will need to weigh-up the potential advantages of helping to kick-start the economy in the midst of a pandemic, versus the potential environmental damage associated with the project and the perception that the Government is prioritising the economy over implementing its environmental strategy. 

Obstacles to waste sector growth  

Jeff Rhodes, Biffa: A key aspect to kick starting the economy and waste management sector, is businesses being able to gain consent on planning and permits as quickly as possible. Most local authorities have managed to continue dealing with planning applications and setting up virtual committees. But on the permit side, it’s all but stopped. A standard variation application will take five months before it’s even allocated to an officer. So, for example, if you’re looking to modify a plastic recycling plant, but it’s taking you one year to get a straightforward permit, that is a barrier to investment and recovery, which is concerning. 

The planning system, for all its faults, is generally operated as an enabler for development whereas the Environment Agency (EA), which issues permits, is solely focused on pollution control with no recognition that a business is developing infrastructure for the national need.  

Matthew Farrow, EIC: It’s the same with DEFRA. It should position itself more within Government as an economic department that’s aligned with jobs and growth. 

Neil Grundon, Grundon Waste Management: The precautionary principle is very pervasive. If science says there might be a problem, the automatic reaction is to stop whatever you’re going to do. This attitude goes right through quangos like the Environment Agency, the HSC and to the core of Government. 

Bruno Prior, Summerleaze Ltd: Quangos are established to remove political control and to separate legislation from implementation. But they also enable the Government to wash its hands of everything and therefore, quangos don’t have to take account of their impact on the economy. There needs to be a return to ministerial responsibility and there should be repercussions if quangos get things wrong.  

Matthew Farrow, EIC: There are some good people in the Environment Agency, but a lot of the local inspectors have come out of university with environmental qualifications but don’t have the practical business experience. The waste sector is very complex, with plenty of rogues who have to be brought under control, so people with both attributes are essential. 

Impact of pandemic on waste crime  

Simon Carroll, B P Collins:  The number of waste crime cases that are under investigation is already large, and it could get worse due to the pandemic, if there is an increased delay in businesses getting the relevant permits, particularly if – as some do  – operate without one in the meantime. This could quite easily translate into a higher volume of cases that need to be investigated, at a time when the EA is unable to meet its current obligations. 

Jonothan Moss, B P Collins: The lack of resources affects not just the EA but also the Crown Prosecution Service (CPS) and the delays in prosecution are exacerbated by the courts being effectively closed. 

Even before the pandemic, the courts were under resourced. The Government has said that there are currently 500,000 outstanding criminal cases, which include environmental matters in the courts. But it’s likely that this number is probably closer to 750,000 which is a huge issue. 

Clifford Darton QC, Ely Place Chambers: The criminal investigation process has been severely hampered by Covid-19 as interviews under caution still have to be complied with and proper disclosure has to be given. The EA is very much the Cinderella of enforcement agencies as they simply don’t have resources to do this. 

There also seems to be a direction that’s gone out to prosecuting authorities to ask the courts to apply the Environmental Sentencing Guidelines to offences which are not obviously environmental offences, such as breach of street works regulations. If successful this approach could have serious consequences, because if a large company commits an environmental offence, fines starts at £40k and will only go up on any subsequent offence.  

Antonia Grey, BMRA: On general waste crime, the real problem is that organised crime groups are stripping out metals from warehouses and filling the empty warehouses with illegal waste. Farmers and landowners are being annihilated as they have to cover the costs to remove the illegal waste dumped on their property Some of these illegal operators, who run illegal yards which can be highly polluting, may have exemptions from the EA, so are not being regulated. 

Potential solutions  

Jonothan Moss, B P Collins: There are several potential solutions to this. The CPS has been told to carefully scrutinise cases coming before the courts to see if they can divert them out of the system. This would help the Criminal Justice System enormously. 

There is also an opportunity to encourage the Environment Agency to think of alternatives, other than going to court, such as enforcement undertakings. For example, if a company has committed an offence, they could put money back into the system to make amends to help fix the problem. Some people view enforcement undertakings as a way for companies to buy their way out of prosecution. But with EA’s staff absences and resource problems, which have been exacerbated by Covid-19, this is a useful option to deal with the matter outside court. 

Clifford Darton QC, Ely Place Chambers: Another potential solution is that jury trials for all regulatory matters in health and safety and in environmental law could be brought to an end. Even though jury trials are taking place currently, three courts are required to ensure social distancing. It also means that co-defendant cases are impossible because there aren’t enough courts. This wouldn’t be a bad thing for environmental cases as juries tend to convict, despite most judges giving the direction to acquit. 

Antonia Grey, BMRA: There also needs to be more coordinated action against illegal waste yards. When the police, local authorities, EA and DVLA do work together, the investigation is more productive. 

Simon Carroll, partner, B P Collins: I would like to see a complete overhaul of the exemptions system, but I suspect the EA would say it’s there to reduce the burden of work on them. But then it could also be argued that the EA isn’t looking at the root cause of the wider problem.  

Jeff Rhodes, Biffa: It seems the EA is overmanaging the ‘good’ guys and ignoring the bad ones who are too difficult to deal with, harder to catch and less likely to pay a fine, yet they’re causing the most damage. The whole focus is wrong. 

Richard Thomas, James Cowper Kreston: One way to ease the EA’s burden is through professional alternatives which offer low prices on a scale that can compete with the higher risk, low price local operators, such as the single man with a van, where you don’t know where your waste will end up. It’s a great commercial opportunity, which reduces the risk of enforcement from the EA. If there are more professional operators doing pick-ups, there would be less fly tipping offences and other waste crimes. 

Clifford Darton QC, Ely Place Chambers: The Government needs to recognise that the criminal method of enforcement brings with it costs and procedure requirements, which the EA can’t cope with it. 

The key is to treat a case more as a financial matter rather than a criminal one as it will be more effective. The moment you create exemptions from a legal point of view, you create offences, so the process is slowed down. If it’s already taking three years to bring a case to trial, many businesses will plead not guilty as it’s likely that the same businesses are planning not to be around in three years anyway. 

Positive predictions for the industry  

Jeff Rhodes, Biffa: There is still an opportunity to invest in waste infrastructure in the UK, but we need the regulatory system to enable it. However, increasingly we are looking in the direction of BEIS rather than DEFRA as this department links into the industrial strategy and economic recovery and that’s really the driver for change and growth. 

Richard Collins, CSRA: Covid-19 has shed a light on how we think about the environment. I’d like to think that the public’s appreciation of being carbon neutral will continue. But when we see the waste left behind at beaches during lockdown, irresponsible attitudes still do exist, so we could return to our old ways. 

Neil Grundon, Grundon Waste Management: I don’t think the same volumes of commercial waste will return. All of the big chains, including the ‘Big Four’ supermarkets, are facing a backlash due to the inflated prices being charged during lockdown, whilst local shops have seen a surge in popularity.  

I think businesses that put sustainability at the heart of everything, should do well. Hopefully, there will be an end to separate sustainability and ethical trading departments within companies as it should be at the core of everything a business does.  

Bruno Prior, Summerleaze Ltd:  Success comes from the people not the Government. For example, the energy from waste site at Colnbrook is a great success story and that was achieved after people thought it was a good investment, not because of Government intervention. 

Richard Collins, CSRA: According to the Office of National Statistics 99% of people were working from home in April.  Under the Environmental Protection Act, employers have a responsibility to manage their waste, but is there any guidance on whether employers are obligated to manage their remote workforce’s waste while working from home? Organisations need to work together to create guidance on how employers and remote employees manage their waste streams. This needs to be considered immediately, otherwise fly tipping and waste crime could rise. 

Neil Grundon, Grundon Waste Management: This is an interesting point. If an employee is generating waste related to their work at home, it could be argued that it‘s their company’s responsibility to dispose of and also raises the question as to who should contribute to council tax bills.  

Conclusion  

Matthew Farrow, EIC: Following the pandemic, there was a huge shock to the economy and the waste sector, where there was a big drop in volumes of commercial waste being collected. But the role of the waste industry and its recognition as an essential service has never been better understood. We’ve discussed how the Government is trying to kick start the economy though shovel ready, traditional engineering projects rather than new greener projects, but we question whether they’re right for an economy that’s evolving.  

There is a consensus that big chunks in the regulatory system including the EA are not fit for purpose in this new normal and there needs to be shake up. The need to improve the environment through private sector expertise and innovation is just as important as ever.  

Participant details: 

Mathew Farrow, Executive Director, Environmental Industries Commission 

Antonia Grey, Head of Policy and Public Affairs, British Metals Recycling Association  

Jeff Rhodes, Head of Environment and External Affairs, Biffa 

Simon Copping, Managing Director, UK and Ireland, Golder Associates 

Richard Thomas, Corporate Finance Senior Manager, James Cowper Kreston 

Richard Collins, Co-founder, CSR Accreditation (CSRA) 

Neil Grundon, Deputy Chairman, Grundon Waste Management 

Clifford Darton QC, Ely Place Chambers 

Bruno Prior, Director, Summerleaze Ltd 

Paul Britton, Chief Executive, Thames Valley Chamber of Commerce 

Alex Zachary, environment and corporate and commercial partner, B P Collins 

David Smellie, environment and corporate and commercial partner, B P Collins 

Simon Carroll, environment and dispute resolution partner, B P Collins 

Craig Williams, environment and dispute resolution partner, B P Collins 

Jonothan Moss, environment and dispute resolution principal solicitor, B P Collins