Conference: Legal Workshop Jenny Watts 23 rd October 2013.

Conference: Legal WorkshopJenny Watts

23rd October 2013

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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

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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’

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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

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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

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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

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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

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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!!

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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

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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.

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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???

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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 ?!

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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!

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Sentencing Council:Environmental Sentencing Guidelines

• June 2013• Environmental Protection Act 1990• Control of Pollution Amendment Act 1989• Environmental Permitting Regulations 2010

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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

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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!

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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

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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.

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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

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Network Events

FREE to KBT Members

• Waste Review: Enforcement & Regulation

• To Enforce or Not to Enforce?

• Flytipping Partnership – NFTPG

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The End!

• Questions?

• Enjoyed the 2013 KBT Conference

• Safe journey home – See you next year!