Mounds of construction and demolition waste have towered over Formby Football club for more than a year. Photograph: Derek Baxter Mounds of construction and demolition waste have towered over Formby Football club for more than a year. Photograph: Derek Baxter

Does the EA’s handling of an unauthorised waste site make a ‘mockery of environmental law’?

It appears Merseyside Aggregates is leaving. Having operated a huge construction and demolition recycling site for 12 months some of the time with an environmental permit but without planning permission, the 40-feet-high piles of waste which have loomed over Formby’s football pitch are finally shrinking.

Derek Baxter, a councillor at Formby Parish Council, said there are signs the operator is complying with its enforcement notice, issued by Sefton Borough Council in April, which requires the firm to clear the site by 1 June. He says the crusher has gone and the firm appears to no longer be advertising on Facebook.

According to the enforcement notice, the council refused to uphold a retrospective planning application because the site lies on a floodplain and threatens the “openness” of the greenbelt.

A Sefton Borough Council spokesperson said: “We are not aware of an appeal being submitted against the enforcement notice and it is our understanding that the site’s occupiers are working to clear it in compliance with the notice.”

But Baxter said the fact that the firm was able to operate for so long despite not having planning permission was “an abject failure of the regulatory system and makes a mockery of environmental law in this country”.  

He questions why the borough council refused to issue a stop notice, which would have forced the site to close within three working days, having refused the Merseyside Aggregates planning permission twice.

The Environment Agency (EA) granted Merseyside Aggregates an environmental permit in March, despite having opposed the site as a statutory consultee on the council’s planning decision, something Baxter describes as “beyond belief”.

To add to this, inspections by the EA had also found that the site had the potential to cause “a risk to human health and contamination off site”. 

According to the EA’s own report, the firm had failed to keep records of where construction waste has originated or where it was sent when sold off. It also failed to test construction waste for contaminants. The EA said it therefore considered the waste hazardous.

“Both Sefton Council and the EA have actively facilitated the running of an unlawful tip for more than 12 months and put workers and residents using neighbouring facilities at risk,” said Baxter.

However, Tracy Lovejoy, a planning lawyer at Lanyon Bowdler, said both the council and the EA appeared to have acted “not unreasonably”.

She notes that councils are often reluctant to issue stop notices because they are seen as “draconian” and could open them up to being sued.

“The council is required to carry out a cost-benefit analysis before it issues a stop notice,” explained Lovejoy.

“The government advises that stop notices are appropriate to bring to an immediate end certain activities only where this is essential to safeguard public amenity or public safety or prevent serious or irreversible harm to the areas,” she said.

However, this can be subjective. Baxter thinks Merseyside Aggregate’s unauthorised operations fits this definition.

For its part, the EA said its officers attended the site in February along with Sefton Council representatives to investigate the operation and determined that it could not operate under the registered waste exemptions and that it required a permit.

After the site visit, the EA issued Merseyside Aggregates with a stop notice requiring the firm to stop operating with immediate effect and remove the waste. 

However, Merseyside Aggregates then applied for and was issued with a standard rules permit. The EA said no site condition or inspection report was included with the supporting documents and was not considered as part of the EA’s National Permitting Service assessment, “neither were any concerns raised”.

The EA has since said it will review whether the operator is complying with the conditions of its permit. Given the council’s stop notice, it is unclear if the EA will still review the permit.

“It appears that even though the development is not ideal or desirable, the EA has decided to take some action to control what is entering and leaving the site rather than leaving the site to go through the planning system,” said Lovejoy.

An EA spokesperson added that the EA can act as a consultee on planning permissions “however any decision is determined by the relevant local planning authority”.

The agency also stressed that permitted activity can only go ahead once all necessary permissions are in place “including the approval of the local planning authority”.

Simon Tilling, a partner at law firm Burges Salmon, said: “It often comes as a surprise that permits can be granted for an activity that does not have planning consent” but “this is the nature of two deliberately independent regimes”. 

“Of course, until the activity has both planning consent and an environmental permit, it cannot operate lawfully,” he added.

“It is for the planning system alone to determine whether land should be used for a particular purpose, although the EA is a consultee in that process. This decision-making is necessarily quasi-political. Entirely separately, the environmental permitting regime controls emissions and environmental impacts from activities and operations, and the decision-making is far more technical.  

Tilling said that “in the vast majority of cases”, these two independent systems “work well together” but he said that because enforcement under each regime is quite different, and because local planning authorities and the EA operate independently, “it can be confusing for the public to know who is in charge when problems do arise”. 

Tilling added that it was also “not unheard of for less reputable operators to use that confusion to their own advantage”.

For Baxter now, the most important thing is that the site is fully restored but “given what has happened, would you have any faith in the EA, the council or Merseyside Aggregates ensuring that this site is properly restored?” he asked.

Merseyside Aggregates was approached for comment.

Related Environmental Services

Powered by ENDS Directory

Compliance Search

Discover all ENDS content in one place, including legislation summaries to keep up to date with compliance deadlines

Compliance Deadlines

Plan ahead with our Calendar feature highlighting upcoming compliance deadlines

News from ENDS Europe

News from ENDS Waste & Bioenergy