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What is today's blog about?
In this week’s blog, we look at the RICS Insight Paper Network Rail Policy for Letting Waste Sites: Sharing Knowledge to Support Professionals (March 2022).
The paper was authored by Mark McKay MRICS, Senior Development Surveyor at Network Rail and Consultant to Property Elite. The paper relates to all waste management property, except for landfill sites.
Mark commented that:
You can download the full paper here.
Why should you read the paper?
The paper focusses on a niche area of practice, however, the lessons learnt are applicable to all RICS members with a clear focus on sustainability and cleaner energy practices.
In particular, landowners and landlords are under scrutiny to ensure that their tenants operate in an appropriate manner and with a general duty of care towards the local environment and community.
How is the paper structured?
The paper starts with an introduction to the regulatory context, Network Rail framework and aim of the paper.
This is to provide a best practice approach to the management of waste-related activity sites, facilitating strong and supportive landlord and tenant relationships.
The paper is based on Network Rail’s strategic decision in 2016 to manage risk over disruption to services and cost liabilities where waste-related activities are undertaken on owned sites. A waste lease was developed which has been rolled out across relevant sites, leading to better management of sites and working relationships between the parties.
The paper then moves on to consider corporate policy on managing waste-related sites, waste lease terms, legal liabilities and management guidelines. The Appendix also includes a helpful checklist for environmental issues.
How is waste-related activity regulated?
Environmental permits are generally required for any site where waste-related activity is undertaken.
In England and Wales, the key legislation in this regard is the:
Waste Enforcement (England & Wales) Regulations 2018
Sections 59ZB and 59ZC of the Environmental Protection Act 1990
These authorise the EA, Natural Resources Wales (NRW) and local authorities to serve notice on occupiers to remove unlawfully deposited waste or waste lawfully deposited under permit or exemption under the Environmental Permitting (England & Wales) Regulations 2016.
Separate legislation applies in Scotland and Northern Ireland.
Landlords have a duty of care (under Section 34 of the 1990 Act) when leasing sites for waste-related activities. To satisfy this duty of care, careful risk management is required. Where a surveyor is advising a landlord or a tenant, they must have an understanding of the relevant legislation and environmental permit requirements.
What is best practice for managing waste-related sites?
Here are some of the best practice recommendations from the paper:
Incorporating site management guidelines into leases
Communicating the policy to all tenants via public channels, a corporate statement or letters
Full due diligence and a risk assessment should be carried out before a letting is agreed, including any environmental permit requirements. This is then summarised via a scoring matrix to determine the risk rating for the tenant
A baseline audit, including an environmental assessment, should be carried out to assess the suitability of the site for the proposed use
Considering applications relating to alienation or change of use in relation to any environmental permit requirements or increased environmental risk
Monitoring the condition of sites and decontamination requirements at lease expiry
Ensuring sufficient security provisions are in place, e.g., CCTV, security guards and security fencing
Implementing an auditing and inspection regime when the site is in use
Ensuring robust record keeping and reporting
What is best practice for management guidelines?
These should form part of corporate policy and a standardised waste lease.
Examples include:
A tenant should comply fully with all consents, permits and licences, and fulfil any conditions attached to them, in relation to its operations and the site.
A tenant should inform the landlord immediately of any proposals to remove, revise or challenge any consents, permits and licences, including any attached conditions, and the outcome of any challenges.
A tenant should inform the landlord of any notices served by the regulator to revoke its permit and any similar documentation.
A tenant should appoint a senior representative in its organisation to take responsibility for environmental matters at the site, who should have the relevant qualifications and experience for the sector. Training records should be provided and shown to meet industry standards and guidelines.
A tenant should adhere to an inspection and audit regimes as set out in the waste policy and its lease.
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Stay tuned for our next blog post to help build a better you.
N.b. Nothing in this article constitutes legal, professional or financial advice.