Conference: Legal Workshop

1. Conference: Legal Workshop Jenny Watts

2. Fine Talk: Trommel Fines • United Resource Operators Consortium • Formed in response to Industry turmoil re Trommel Fines – May 2012 • Collective “Voice” for the Skip & WTS Sector • NOT – FOR – PROFIT

3. Background • Landfill Tax – Fiscal Instrument aim to divert wastes from landfill • Finance Act 1996 – LFT Escalator £8 until 2014 • Current charges per tonne; • £72 – standard rate • £2.50 – lower rate ‘Qualifying Material’

4. Background • Qualifying Material Order 2011 • Group 1: Rocks & Soils (Naturally occurring) • Ceramic Materials • Minerals (processed or prepared) • Trommel Fines – traditionally qualified for lower rate • Important – WTN adequately describes the load

5. Background • 18th May 2012 - Guidance Brief: 15/12 – trommel fines do not qualify!! • 1st June 2012 - Guidance Brief: 18/12 – lacked consultation, certainty & suitable notice period • 15th June 2012 – meeting with HMRC: Working Group: UROC, ESA & CIWM • 4th July 2012 – Interim Guidance – maintained status quo

6. Interim Period • 9th September 2013 – Further Draft Guidance • 21st October 2013 – Informal Consultation Response due date • 11th November 2013 – Implementation Date! • 5th November 2013 - HMRC Meeting

7. Industry Concerns • Lack of engagement UROC – guidance lacks clarity re “evidential burden” • Representations from SME sector; • Landfill Operators – err on the side of caution • Skip price increases – Flytipping – LA enforcement resources • Construction: economic recovery • Trommel Plant – no economic incentive, waste hierarchy • LFT Escalator – achieved diversion from landfill

8. Industry Concerns • High volume litigation – operators challenging tax assessments • Business closure – lack of facilities, unemployment • Local Authority SME contractors - e.g. road sweepings • Unnecessary confusion!!

9. Evidential Burden • Accepted that HMRC cannot accommodate all eventualities – but need to resolve the issues • Guidance example: “fines are variable in nature and, where it is impossible to determine origin and exact nature of the source material = standard rate” • Domestic Skips & Duty of Care WTN • HMRC cannot preclude evidence

10. Solutions? • S42 of the Finance Act 1998 (as amended) The Treasury must; • (a) set criteria to consider from time to time what material is to be listed; • (b) keep those criteria and under review; and • (c) revise them whenever they consider they should be revised.

11. Solutions? • (5) The Commissioners must publish the criteria (and any revised criteria) set by the Treasury. • (6) In determining from time to time what material is to be listed, the Treasury must have regard to- • (a) the criteria (or revised criteria) published under subsection (5) and • (b) any other factors they consider relevant.’ • ANOTHER GROUP = TROMMEL FINES???

12. Solutions? • Process Protocol? - Operational procedures & testing regime (TOC, LOI?) • “incidental” – meaning? • Potential for pollution or to cause harm • Low potential for greenhouse gas emissions; • Low polluting potential in the landfill environment • Pilot Sites ?!

13. Consultation Response • Clear, prescriptive, unambiguous & suitable for all parties concerned • Extend implementation date for review and exploration of options • Fit for purpose meaningful guidance!! • HMRC: Emailed that due to influx and content of responses – “unlikely” to implement on 11th November!

14. Sentencing Council:Environmental Sentencing Guidelines • June 2013 • Environmental Protection Act 1990 • Control of Pollution Amendment Act 1989 • Environmental Permitting Regulations 2010

15. Sentencing Council:Environmental Sentencing Guidelines Do you agree with the proposed approach taken for the other environmental offences listed? • KBT: strongly urges the Sentencing Council to expressly include other relevant and analogous environmental offences that carry lower statutory maxima, to include; • Dog Control Orders (Prescribed Offences and Penalties, etc.) Regulations 2006which implements sections 55 of the Clean Neighbourhoods and Environment Act 2005 • S55(4): Breach of a dog control order (level 3) • Environmental Protection Act 1990 • S87: Offence of leaving litter (level 4) • serious in nature and effect as those listed • extremely important for local environmental quality

16. Financial Worth?! Do you think the guidance on obtaining financial information is sufficiently detailed and helpful? • Financial Means form! • Other financial means should be requested offender’s assets; • Property • Cars • Bank Statements • Not to confuse with POCA!

17. Sentencing Factors Do you think the approach in step three achieves the objectives of punishment, deterrence and removal of gain in a fair and proportionate way? • Court invites the prosecutor to assist in the decision making process • Fully appraised of all the factors of the offending e.g. Community Impact Statement • Especially when not many environmental crime cases

18. Ancillary & Community Orders Do you think the wording on ancillary orders in step six is appropriate? • KBT strongly agreed: especially with reference to forfeiture of vehicles in cases of flytipping. • Curfew • Remedial work to restore any damage or impact on the environment - restorative justice should have a focus on work relating to environmental quality. • No lasting damage - compensation to be paid into local environment funds for improving local environmental quality.

19. Additional Comments Are there any further comments you wish to make? • Work with the magistrates’ courts: highlight impact of environmental crime on LEQ • Engagement with the Magistrate Association: specific training - JSB • Merit in designated circuit benches dealing with environmental crime

20. Network Events FREE to KBT Members • Waste Review: Enforcement & Regulation • To Enforce or Not to Enforce? • Flytipping Partnership – NFTPG

21. The End! • Questions? • Enjoyed the 2013 KBT Conference • Safe journey home – See you next year!