seekingcounsel THE RIGHT SIDE OF THE LAW
Temporary planning can be a great money saver
WASTE operators will often fi nd they are seasonal dependant, and that the amount of waste brought onto their site will fl uctuate over the period of the year.
In most instances operators own EMS, and permits will be provided for suffi cient increases in waste - without there being any breaches of either EMS, or permitting requirements.
In the case of mixed waste, it is required that such waste is kept under cover.
Consequently, operators may fi nd themselves in a situation where they have insuffi cient closed cover to accommodate any increase in waste/mixed waste.
It is possible for waste operators to extend their storage and operational space by the use of temporary structures.
Operators appreciate that installation of temporary structures may require planning permission. However, there are certain circumstances when planning permission will not be required.
For instance, planning permission is not required if a temporary building is intended for use for less than 28 days, or the ground area is less than 100m².
An alternative to the installation of a temporary structure is the installation, or temporary installation, of an extension.
Planning permission will not be required for an extension of an existing storage facility, if it is:
• Less than 100 m² • 25% of the volume of the original building • Related to current use • Lower than the height of the original building
Waste operators should appreciate that in an emergency, there are instances where retrospective planning permission can be obtained.
PROSECUTION IS POSSIBLE
However, planning applications take between 8 to 12 weeks, and operators may fi nd that within this window the requirement for a temporary storage facility has fallen away.
The consequences of contravening planning tegulations, or failing to apply for planning permission, means a local planning authority can serve a Section 36 Enforcement Notice (under the 1984 Building Act).
Prosecution is possible up to two years after the completion of the off ending work, but a Section 36 notice cannot be served after the expiration of 12 months from the date of completion.
My advice to waste operators is, if they are considering the
Philip W. Jones is a member of New Bailey Chambers in Liverpool, and has been a practicing Counsel for many years. He was employed by the Environment Agency as a lawyer, and now heads a practice on regulatory, environmental and planning issue matters. He regularly represents waste operators, in particular smaller scale operations, before civil and criminal courts and planning inquiries.
installation of temporary facilities, to consider a stand-alone structure and also the possibility of an extension to an existing storage area.
This may aff ectively “spread the waste,” and avoid the cost of planning permission.
However one caveat to this is that waste operators should ensure any structure, or extension of existing structures, remains within site boundaries and this is refl ected in a revised EMS.
Burden on the operator
An interesting topic was raised by a colleague of mine regarding possible prosecution under EPA 1990 when a skip was not only used by a hirer, but also by third parties for the purposes of fl y tipping.
Consequently, the skip would then hold waste the operator was unable to process under their own permit
Waste operators should recognise the burden is on them to prove they have done nothing wrong, and not the other way round.
Always make clear to a hirer they are responsible for ensuring a skip is not misused.
The hirer should be told this may result in a change of price, to refl ect an operator’s change of transfer note.
If the skip contains material the operators permit does not allow to be processed, the off ending skip should not be brought onto site and must be transferred without a correct transfer note – to avoid any permitting breach, and potential prosecution.
The best way of dealing with such a problem is get another operator to deal with the skip and then pass the expense on to the hirer.
MAKE A FREE APPOINTMENT TO SEE PHIL AND DOM AT THE WASTE’17 EXHIBITION OLD TRAFFORD, JUNE 8 - CONFIDENTIAL ADVICE FROM THE WASTE LEGAL EXPERTS
44 SHM June, 2017
www.skiphiremagazine.co.uk
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