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Report on the Waste and Contaminated Land (Amendment) Bill (NIA 10/09)

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Report on the Waste and Contaminated Land (Amendment) Bill (NIA 10/09) Committee for the Environment Report on the Waste and Contaminated Land (Amendment) Bill (NIA 10/09) Together with the Minutes of Proceedings, Minutes of Evidence and Written Submissions Relating to the Report Ordered by the Committee for the Environment to be printed 4 November 2010 Report: NIA 06/10/11R (Committee for the Environment) Session 2010/2011 First Report Membership and Powers The Committee for the Environment is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, section 29 of the Northern Ireland Act 1998 and under Standing Order 48. The Committee has power to: • Consider and advise on Departmental budgets and annual plans in the context of the overall budget allocation; • Consider relevant secondary legislation and take the Committee stage of primary legislation; • Call for persons and papers; • Initiate inquires and make reports; and • Consider and advise on any matters brought to the Committee by the Minister of the Environment The Committee has 11 members including a Chairperson and Deputy Chairperson and a quorum of 5. The membership of the Committee since 9 May 2007 has been as follows: Mr Cathal Boylan (Chairperson) 9 Mr Thomas Buchanan 7,8,13 Mr Trevor Clarke 15 Mr Willie Clarke 14 Mr John Dallat 5 Mr Danny Kinahan 3,4 Mr Patsy McGlone (Deputy Chairperson) 6,9,10,12 Mr Alastair Ross 1 Mr George Savage 2,16 Mr Peter Weir Mr Brian Wilson 11 1 On 21 January 2008, Alastair Ross was appointed as a Member and Mr Alex Maskey ceased to be a Member 2 On 15 September 2008 Mr Roy Beggs replaced Mr Sam Gardiner 3 On 29 September 2008 Mr David McClarty replaced Mr Billy Armstrong 4 On 22 June 2009 Mr Danny Kinahan replaced Mr David McClarty 5 On 29 June 2009 Mr John Dallat replaced Mr Tommy Gallagher 6 On 3 July 2009 Mrs Dolores Kelly replaced Mr Patsy McGlone as Chairperson 7 On 14 September 2009 Mr Adrian McQuillan replaced Mr Trevor Clarke 8 On 1 February 2010 Jonathan Bell replaced Mr Adrian McQuillan 9 On 12 April 2010 Mr Cathal Boylan was appointed as Chairperson and Mrs Dolores Kelly ceased to be a Member 10 On 12 April 2010 Mr Dominic Bradley was appointed as Deputy Chairperson 11 On 13 April 2010 Mr Brian Wilson was appointed as a Member and Mr David Ford ceased to be a Member 12 On 21 May 2010 Mr Patsy McGlone replaced Mr Dominic Bradley as Deputy Chairperson 13 On 13 September 2010 Mr Thomas Buchanan replaced Mr Jonathan Bell 14 On 13 September 2010 Mr Willie Clarke replaced Mr Daithi McKay 15 On 13 September 2010 Mr Trevor Clarke replaced Mr Ian McCrea 16 On 1 November 2010 Mr George Savage replaced Mr Roy Beggs Table of Contents Report Executive summary Recommendations Introduction Consideration of the Bill by the Committee Key issues Clause by clause consideration of the Bill Appendix 1 Minutes of Proceedings Appendix 2 Minutes of Evidence Appendix 3 Written Submissions Appendix 4 List of Witnesses Appendix 5 Research papers requested by the Committee Appendix 6 Other papers submitted to the Committee Executive Summary Purpose 1. This report sets out the Committee for the Environment’s consideration of the Waste and Contaminated Land (Amendment) Bill. 2. Members sought a balanced range of views as part of their deliberations on the Waste and Contaminated Land (Amendment) Bill and requested evidence from interested organisations and individuals as well as from the DOE. Burden of proof (Clause 1) 3. Several respondents informed the Committee that enforcement would be made easier if Clause 1 was strengthened by the inclusion of a provision to shift the burden of proof from the enforcing authority to the accused by including the term ‘knowingly or otherwise’ in relation to the unlawful deposition of waste. Under current law, the enforcing authority must prove the guilt of the offender. 4. The Department advised the Committee that it had originally consulted on the inclusion of such an amendment and whilst several councils were very supportive of the idea, decided not to proceed when issues of human rights were raised. 5. The Committee appreciated the difficulties faced by the enforcing authorities but did not feel they merited a shift in the burden of proof in this legislation. The Committee was therefore content with the Department’s rationale for excluding a provision to this effect in the Bill. Guidance on the use of fixed penalty notices (Clause 1) 6. Most respondents to the Committee’s call for evidence stated that guidance should be provided outlining circumstances for the use of the fixed penalty notices to ensure consistent enforcement across councils. 7. The Department stated that it proposes to prepare guidance in consultation with councils and waste management groups. However it stressed that since the use of these powers would be discretionary, differences might arise between councils but that councils or groups of councils would be free to reach agreement if they felt that inconsistencies were becoming a problem in tackling flytipping offences. Members were content with this approach. Fixed Penalty Notices (Clause 1) 8. Most respondents to the Committee’s call for evidence felt that fixed penalty notices must be set at a level that acts as a deterrent. The Committee agreed that fines must deter offenders and that a cap of £200 was too low. 9. The Department accepted the upper level of the fine range could be increased to £400 and the Committee welcomed its decision to bring forward an amendment raising the upper limit. 10. Furthermore on fixed penalty notices, the Committee felt that the emphasis of the wording of Clause 1(11) should be changed so that instead of implying offenders would receive a ‘discount’ on prompt payment, they would have to pay an ‘enhanced’ penalty if paying late. 11. The Department argued that the wording is consistent with the existing provision for fixed penalties and suggested the form of wording could be reflected in the guidance on the use of fixed penalties specifically in relation to the format of the fixed penalty notice itself. The Committee was content with this approach. Power to alter the amount of a fixed penalty notice (New Clause) 12. The Examiner of Statutory Rules suggested to the Committee that the power to alter the amount of a fixed penalty notice in this Bill (New Article 4A(10) and other powers to alter fixed penalty notices introduced into the 1997 Waste and Contaminated Land Order by the Waste (Amendment) (Northern Ireland) Order 2007 (Articles 5A(10), 22B(5) and 42B(10)) should be subject to draft affirmative procedure rather than negative resolution. This would make it consistent with the powers relating to altering fixed penalty notices in other bills currently before the Assembly. 13. The Department indicated that it was its intention to apply annual inflationary increases to fixed penalties and argued that affirmative procedure would lengthen this process and place an additional burden on the Assembly. 14. The Committee felt it was important that the Assembly had maximum control over powers to increase levels of fines and that there should be consistency in approach with other legislation going through the Assembly. It therefore agreed there should be a Committee amendment to make these powers subject to draft affirmative procedure. Powers of entry and investigation (Clause 5) 15. Several respondents to the Committee’s call for evidence stressed that in order to deliver powers under Articles 4 and 5 councils needed to be given the same powers of entry and investigation as the Department. 16. The Department stated that it intended to propose an amendment to the Bill which would give councils these powers and the Committee was content with this. Appeals against remediation notices (Clause 8) 17. The Committee was concerned that there was a risk that referring a case to the Planning Appeals Commission would be used to ‘buy time’ for an offender if there was no charge for an appeal. 18. The Department stated it would be happy to consider an amendment to the Bill introducing an enabling power for the introduction of a fee for an appeal and the Committee agreed with this approach, Timescale for final disposal (Clause 9) 19. The Committee suggested that there should be a timescale introduced for final disposal of illegally deposited waste. 20. The Department felt that existing legislative provision in this area is satisfactory and that a set timescale could prove counterproductive. The Committee was content with the Department’s response on this issue. Flytipping Protocol 21. Many respondents sought clarity on how the Bill might be implemented with regard to: • the threshold or demarcation of responsibility between enforcement bodies (i.e. the NIEA and local authorities) to avoid duplication or gaps • addressing the differences between domestic and commercial waste • dealing with special hazardous waste • dealing with waste where land is unregistered or no legal owner can be identified • landowner liability in relation to clearing up illegally deposited waste 22. The Department indicated that all these issues would be addressed in a flytipping protocol that would be developed in conjunction with the local government sector. The Committee accepted this but agreed it should recommend that the Department develops this flytipping protocol as soon as possible. Commencement (Clause 12) 23. Although generally supportive of the commencement clause, several respondents to the Committee’s call for evidence were keen to see the flytipping protocol identifying the roles and responsibilities of NIEA and local authorities to be in place before the Bill commenced. 24. The Department insisted that the specific clauses which relate to councils’ enhanced waste management powers will not be enacted until the flytipping protocol is in place but that it is possible that other clauses may require a different commencement date.
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