Waste Management (Amendment) (Jersey) Regulations 201-

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made on 31 May 2012:

Decision Reference: MD-PE-2012-0059
Decision Summary Title :	Draft Waste Management (Amendment) (Jersey) Regulations 201-		Date of Decision Summary:	25 May 2012
Decision Summary Author:	Head of Waste Regulation		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	n/a
Written Report Title :	Draft Waste Management (Amendment) (Jersey) Regulations 201-		Date of Written Report:	25 May 2012
Written Report Author:	Head of Waste Regulation		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Draft Waste Management (Amendment) (Jersey) Regulations 201-
Decision(s): The Minister approved the lodging of the draft Waste Management (Amendment) (Jersey) Regulations 201- and report ‘au Greffe’ for debate in the States Assembly as soon as possible.
Reason(s) for Decision: The draft Regulations are required in order to amend the Waste Management (Jersey) Law 2005; to allow waste management licences to be issued to non-landowner applicants. [so that Jersey can comply with its obligations under the Basel Convention], to update references within the Law to the current EC legislation to which it refers and . to enable the consent period for transboundary movements of wastes to be extended to up to three years.
Resource Implications: Manpower - The Regulations will be implemented without any change to the current manpower levels. Financial implications - The Regulations will allow licences to be issued and the annual subsistence fees for licences collected. This will contribute to the Departmental budget.
Action required: The Greffier of the States is asked to lodge the draft Waste Management (Amendment) (Jersey) Regulations 201- ‘au Greffe’ for States Assembly debate.
Signature:		Position: Deputy R Duhamel, Minister for Planning & Environment
Date Signed:		Date of Decision (If different from Date Signed):

Waste Management (Amendment) (Jersey) Regulations 201-

Department of the Environment

Draft Waste Management (Amendment) (Jersey) Regulations 201-

Report

The Waste Management (Jersey) Law 2005 (“the Law”) was enacted in order to enable Jersey to achieve ‘ratified party status’ under the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (“the Convention”). This paved the way for the United Kingdom’s ratification of the Convention to be extended to Jersey. The Convention was formally extended to Jersey by the United Kingdom in 2007.

In addition, the Law brought into effect the Decision of the Council of the Organisation for Economic Co-operation and Development on the Control of Transfrontier Movements of Wastes Destined for Recovery Operations (“the OECD Decision”), which Jersey is obliged to implement. The Convention obliges parties to take measures to ensure the environmentally sound management of hazardous or other wastes and the Law creates a regulatory licensing regime for waste management activities within Jersey.

The Law came fully into force in 2007 and its ongoing implementation since this time has raised a particular difficulty relating to applications for waste management licences where the applicant for the licence is not the landowner.

Article 26(3) of the Law currently requires an application for a waste management licence to be accompanied by the written undertaking of the land owner in a form that is legally binding on the owner and the owner’s successors in title to allow the applicant to carry out such future works on the land as the Minister may under the Law require the applicant to carry out, for the avoidance of pollution arising from the activity to which the licence relates or for the protection of the environment.

None of the applications for licences received from non-land owners since 2007 have satisfied the Article 26(3) requirement to provide a binding written undertaking. One difficulty is that the nature of Jersey’s property law would probably require the passing of contracts before the Royal Court in order to bind the land-owner and his successors and even then there is no guarantee that a contractual undertaking of this kind would be binding on the land-owners successors. Another difficulty is the potential unknown timescale of the undertaking and the consequential burden that an undertaking for an indeterminate period would attach to the land. A feature of the Jersey property law is that there is a presumption in favour of the freedom of land from excessive burdens.

It has therefore become evident that Article 26(3) of the Law is impractical because applicants are faced with not being able to comply with its requirements which consequently raises a significant barrier to the Minister’s ability to grant licences in accordance with the Law, as required by Article 27(1)(a). If licences cannot be issued, the environment may be at risk since the regulatory tool designed to drive environmental best practice at waste management sites is not in place. This situation effectively means that Jersey is unable to comply with its general obligations under the Convention to implement measures (i.e. an effective regulatory framework) that ensure the environmentally sound management of hazardous or other wastes.

It is essential therefore that the Law is amended to overcome this so that licences can be issued lawfully and to comply with Jersey’s obligations under the Convention.

The Law already adequately provides other measures to prevent and minimise the negative effects of waste management activities. These include the licensing regime itself, which requires a waste management licence to be in force and licence conditions to be complied with (Article 23), as well as enforcement provisions for co-operation by owners and others (Article 86), provision of information about potential pollution (Article 88), control of potential pollution (Article 89) and remedial action by the polluter (Article 90).

The proposed amendments to Article 26 therefore remove the written undertaking requirement and clarify what evidence is required to accompany an application for a waste management licence;

evidence of grant of planning permission or evidence of continuous use of the land and
evidence that the applicant has the land owner’s consent to occupy the land for the purposes of carrying out the waste management activities,

will constitute evidence of the lawful use of the land.

Article 28 concerns conditions of licences and refers to the requirements of Article 26(3). Article 28 therefore requires consequential amendment.

There are a number of other amendments which are desirable to keep the Law up to date with the European legislation to which it refers. The Law includes reference to the European Regulation 259/93 on the shipments of waste and the European Council Directive 75/442/EEC on waste, both of which have been repealed.

Article 62(3) and Schedule 8 paragraph 6(2) restrict the period for which consent to a transboundary shipment can be given to 12 months. The proposed amendment to these parts of the Law will enable the Minister to extend the period of consent on movements of waste from 12 months up to a maximum period of 3 years. This brings the Law into line with the OECD decision which is incorporated into the Waste Shipment Regulation (EC) No 1013/2006. It is discretionary and subject to the consent of the other competent authorities concerned i.e. the jurisdictions of import or export.

Manpower implications

The Regulations will be implemented without any change to the current manpower levels.

Financial implications

The Regulations will allow licences to be issued and the annual subsistence fees for licences collected. This will contribute to the Departmental budget.