In the 1990s, the removal of an asbestos-clad light steel roof would generally have required a licensed contractor. The Asbestos (Licensing) Regulations 1983, SI 1983/1649 (the 1983 Regulations), came into operation on 1 August 1984 and provided that an employer or self-employed person who undertook work with asbestos insulation or asbestos coating could only do so in accordance with a licence issued by the Health and Safety Executive (HSE). However, the 1983 Regulations, SI 1983/1649, reg 3(2) provided that a licence would not be required in certain circumstances—of relevance may be where work was undertaken for no more than one hour in any seven day period and the total time spent did not exceed two hours or where the work was carried out at premises occupied by the employer or self-employed person if notice had been given to the enforcing authority 28 days in advance of the work. The Asbestos (Licensing) (Amendment) Regulations 1998, SI 1998/3233, came into force on 1 February

If this question is answered in the affirmative, the defendant may have a complete defence to any claim brought against them. This defence is commonly known as ‘ex turpi causa non oritur actio’ which is usually shortened to ‘ex turpi causa’. In practice, the defence is relatively unusual. The precise ambit of the defence is uncertain. However, the following guidelines should be considered. Claimant’s responsibility has been diminished but not removed The cases of Clunis and Gray involved claimants who were guilty of manslaughter on the grounds of diminished responsibility. In Clunis, the Court of Appeal found that the claimant’s plea of diminished responsibility accepted that their mental responsibility was substantially impaired but did not remove liability for their criminal act and therefore they had to be taken to have known what they were doing and that it was wrong. In Gray, the House of Lords held that the claimant’s claim was barred by the defence of illegality because the damages sought resulted from the sentence imposed

The concept of foreseeability and remoteness in negligence claims The defendant is liable for damage only if it was a foreseeable consequence of the breach of common law duty. It is not necessary to show that the defendant should have foreseen precisely what happened. It is enough if the injury is of a type that could have been foreseen even if it came about in an unexpected way. See Practice Notes: Duty of care in personal injury claims and Breach of the duty of care in personal injury claims. However, even if the claimant proves: • that the defendant acted negligently (ie in breach of duty), and • that the negligence was in fact the cause of the injury or damage The defendant will not necessarily be liable for all of the damage. In order to recover damages in a claim based in negligence, the injury or damage needs to have been reasonably foreseeable. If the damage was not reasonably foreseeable, the defendant is not held responsible and the damage is said to

Corporate Crime analysis: From 24 February 2014, both the Crown Prosecution Service (CPS) and the Serious Fraud Office (SFO) had the power, as prosecutors, to enter into a deferred prosecution agreement (DPA) with relevant organisations. Ten years on, only thirteen DPAs have received court approval and, until recently, only the SFO had made use of the power to enter into a DPA. That changed last year with the approval of the latest DPA agreed between the CPS and Entain plc. Addleshaw Goddard LLP Partners Nichola Peters, Michelle de Kluyver and Neeta Chityal, and Senior Knowledge Lawyer, Gilly Bradbury, from the Global Investigations practice, consider what makes DPAs effective and how changes brought in by the Economic Crime and Corporate Transparency Act 2023 may impact their use. Addleshaw Goddard acted for two of the corporates and is the only firm to have acted in respect of both a CPS and an SFO agreed DPA.

Property analysis: Dr Braganza (B) was a flat owner in a development comprising flats and houses (which were all let on long leases). He challenged the service charges he had paid since he bought the lease, in 2018 in the First-tier Tribunal, Property Chamber (FTT) under section 27(A)(1) and (3) of the Landlord and Tenant Act 1985 (LTA 1985). B’s lease gave to the landlord’s surveyor power to determine the proportion of the overall expenditure payable by the leaseholder. B objected to the landlord’s surveyor’s practice of apportioning the various heads of expenditure between the flat and house leaseholders taking into account the benefit they obtained from that expenditure. The Upper Tribunal (Lands Chamber) (UT) applied the decision of the Supreme Court earlier this year in Aviva Ground Investors GP Ltd v Williams. As long as the landlord’s surveyor’s decision on apportionment was rational, the FTT had no jurisdiction to interfere with that decision on the basis of the anti-avoidance provisions in LTA 1985, s 27A(6). Written by David Harris, professional development lawyer at Browne Jacobson LLP.

Local Government analysis: This judgment is another in a string of decisions concerning the interpretation of the tenant condition. The issue in this case was narrower than in previous hearings. Hackney appealed the previous judgment of Mr Justice Zacaroli made in April 2024. Hackney appealed on the basis that an intention to return to the property as an owner cannot satisfy the ‘tenant condition’. The judge in this case disagreed with such an assertion and the appeal was dismissed. There were other elements to the appeal, but those fell by the wayside. The Judge held that the tenancy condition can be satisfied even where the tenant does not intend to return to the premises as a tenant. It was held that there is no suggestion within the legislative provision that a return as a tenant is required. The condition remains satisfied if a tenant intends to return in any capacity, as long as this can be measured and shown against objective ascertained fact. Written by Clive Adams, head of Housing Management at Birketts LLP.

Washington Arbitration Week has released the programme for its 5th edition, scheduled for 2-6 December 2024. The event will feature panels exploring cutting-edge issues in international arbitration, including the impact of US elections on investment arbitration, corruption and fraud challenges, enforcement of awards, the use of AI, expedited proceedings and the intersection of arbitration with human rights and climate change. Notable topics include the implications of European states withdrawing from the Energy Charter Treaty, UNCITRAL Working Group III reforms, and how AI is transforming arbitration practice. The programme aims to provide practitioners with insights on recent cases, trends and developments shaping the field of international commercial and investment arbitration.

Waste, in legal practice, generally refers to any action or omission by a person in possession of land or other property that significantly harms, diminishes or misuses the asset to the detriment of another interest holder (such as a landlord, reversioner, co-owner or beneficiary). It commonly arises in landlord and tenant law, trusts, co-ownership and succession.At common law in England and Wales, Scotland, Northern Ireland and Ireland, waste includes physical damage (voluntary waste), neglect leading to deterioration (permissive waste) and, in some contexts, significant alteration of the character of land (ameliorating or equitable waste). Life tenants and tenants for years are the classic subjects of waste claims.In the UK and Ireland, “waste” is also a key statutory concept in environmental and planning law, particularly under EU-derived and domestic legislation, where it usually denotes substances or objects which the holder discards, intends to discard or is required to discard. This environmental meaning is distinct but may interact with property, regulatory and commercial disputes, for example in contaminated land, waste-management contracts and permitting. Usage is broadly consistent across the four jurisdictions, subject to specific statutory definitions.

Nationally significant waste water infrastructure The Waste Water National Policy Statement (the NPS) sets out government policy for the provision of nationally significant waste water infrastructure in England. The NPS is used to guide decision making on development consent applications for waste water developments that fall within the definition of a nationally significant infrastructure project (NSIP) as defined in the Planning Act 2008 (PA 2008). See Practice Notes: National Policy Statements, Application procedure for nationally significant infrastructure projects and Permission for nationally significant infrastructure projects for further background. Waste water, commonly referred to as sewage, is generally a mixture of domestic waste water from baths, sinks, washing machines and toilets, and waste water from industry. Waste water NSIPs, to which the NPS applies, are defined in PA 2008, s 29 as: • the construction of waste water treatment plants in England which are expected to have a capacity exceeding a population equivalent of 500,000 when constructed • the construction of infrastructure for the transfer or storage of waste water where the works will be carried out wholly

Reform to the waste carrier, broker and dealer system The Independent Review into Serious and Organised Crime in the Waste Sector in 2018 highlighted ‘the extent to which waste is handled by an increasing number of, often opaque, intermediaries’. It recommended that ‘Registration and duty of care requirements for carriers, brokers and dealers should be reformed (including in relation to hazardous waste)’. In its Resources and Waste Strategy, the government set out how it intended to tackle waste crime in various ways including by improving the transport, management and description of waste by reforming existing regulation and preventing illegal activity being hidden through waste exemptions by reforming the existing regime. In the Environment Act 2021, the government set out plans to overhaul waste record keeping, by establishing a digital waste tracking system and by moving from a registration system to a permit-based system, to enhance the background checks needed to operate, as well with introducing a technical competency requirement. In 2022, the government issued a consultation

Why is registration required? The Waste (England & Wales) Regulations 2011, SI 2011/988, require that no one may act as a carrier, broker of or dealer in controlled waste unless registered with the Environment Agency in England or Natural Resources Wales in Wales. Registration is a legal requirement. A person who is required to register but fails to do so commits an offence. Registration of waste carriers, brokers and dealers assists companies meet their duty of care obligation to ensure that controlled waste is transported and disposed of legally and safely. The duty applies to any person who produces, imports, carries, keeps, treats or disposes of controlled waste, or as a broker has control of such waste. Breach of the duty of care is an offence and may result in criminal sanctions, including an unlimited fine on conviction on indictment. For more information, see Practice Notes: • Waste types and controls—controlled waste • Litter enforcement, fly-tipping offences and abandoned vehicles • Waste duty of care—controlled waste As

Compliance Carriers are required: • to register with the Environment Agency in England and Natural Resources Wales in Wales • to produce authorisation (eg certificate of registration) when requested • not to transport controlled waste without registration unless operating as an exempt carrier • to provide information requested by the regulatory authority • to update registration information with 28 days where there have been any changes Brokers and dealers are required to: • register with the Environment agency (EA) in England and Natural Resources Wales (NRW) in Wales • update registration information within 28 days where there have been any changes Enforcement Carriers The enforcement bodies in relation to a carrier’s obligations under the Control of Pollution (Amendment) Act 1989 (CP(A)A 1989) and the Waste (England and Wales) Regulations 2011, SI 2011/988 are the EA in England and NRW in Wales. Under CP(A)A 1989, local authorities (as waste collection authority) can also be a regulation authority but only in relation to upper tier carrier registration and not