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Clive Read
Member - 6 posts
The answer would seem to lie in whether the building can be classified as not being an HMO. The detail is set out in schedule 14 of the Housing Act 2004.
Given the business carried on by the Hospital the most relevant reference in Sch 14 would be whether the building can be exempt because the person managing or controlling it is [para 2(1)(f)] "a health service body within the meaning of section 4 of the NHS and Community care Act 1990".
In turn, section 4 is a very comprehensive list of what a health service body is - Philip may want to check that he falls within any of those categories but from my perusal the following might suggest he is if he can show the Royal Hospital for Neuro-disability is possibly one of the categories listed including : a primary care trust, an NHS trust. I'm afraid I cannot be more specific without knowing how the hospital was established but that's presumably a straightforward answer for Philip.
If it is not such a body the question would then be whether separate regulations have been made under para 3 to specifically exempt such buildings. Philip would be best advised to call the ODPM (or whatever the successor Govt dept is now called) to see if any such regs have been made.
Please note Part 1 of the 2004 Act applies to all buildings in any event.
Even if the building is exempt then regard must be had to whether a code of practice has been passed under section 233(1) of the Act - there have certainly been regulations passed relating to student accommodation (an area in which I am specifically interested) but I am unclear whether there are others which cover buildings such as operated here. Again, the ODPM should be able to help.
Regards
Clive Read
Partner
Martineau Johnson
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Clive Read
Member - 6 posts
Dear Paul,
Thank for your enquiry regarding waste disposal/transfer stations.
As you are probably aware, waste management licensing regulations apply if you deposit; keep (i.e. store waste that you did not produce); treat (including recycling and using mobile plant) or dispose of controlled waste in or on any land or by means of a mobile plant, or if you 'knowingly permit' any of these activities.
Lower risk waste management activities are exempt from the need to obtain a Waste Management Licence. There are around 45 categories of exemption, most of which are subject to specific constraints on waste types, quantities, capacities and duration of storage. Most exempt activities need to be registered with the Environment Agency.
I do not quite have enough information to provide a definitive answer as to whether you need a licence or can rely on an exemption. It seems, however, that an exemption might apply to your activities under paragraph 40 of the Waste Management Licensing Regulations 1994, which states that a licence is not required for:
"1). The storage of non-liquid waste at any place other than the premises where it is produced if:-
(a) it is stored in a secure container or containers, does not at any time exceed cubic metres in total and is not kept for a period longer than 3 months;
(b) the person storing the waste is the owner of the container or has the consent of the owner;
(c) the place where it is stored is not a site designed or adapted for the reception of waste with a view to its being disposed of or recovered elsewhere; and
(d) such storage is incidental to the collection or transport of the waste."
In addition to not needing a licence, I understand that the Environment Agency do not require exempt activities under paragraph 40 to be registered either. However, they do advise that people in your situation contact their local Environment Agency office with details of the circumstances so that the Agency can confirm that no licence or registration is required and make a note on their system confirming this. I recommend that you do this.
If a licence is required, you should be aware that the Environment Protection Act 1990 introduced requirements for a person to be fit and proper to hold a waste management licence. Part of the requirements for "Fit and Proper Person" in law means that the activities must be in the hands of a technically competent person. So, and in answer to the last past of your question, for operators of waste transfer statements this means obtaining certification through the Waste Management Industry Training and Advisory Board (WAMITAB). This is an NVQ based system, which leads to the award of a Certificate of Technical Competence (COTC). Not too painful, I hope!
Regarding forthcoming legislation that may change your situation, the picture is very unclear at present. The Department for Environment, Food and Rural Affairs had been working for a long time on a major waste permitting review, but announced last month that the review was suspended. I understand that the reasons behind this are a mixture of 1) the review was heading off-track and 2) Defra needing to devote more resources to implementing new EU laws on waste electrical and electronic equipment.
For the time-being, then, it is not certain if or when the waste permitting review will be re-activated, or what direction it will take going forward.
I hope this points you in the right direction, but please do not hesitate to contact me if you need further information (0870 763 1201).
Regards,
Graham Stuart, Associate, Martineau Johnson
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Clive Read
Member - 6 posts
Martin
Quick rule of thumb is that items attached to the building which are fixtures and fittings belong to the landlord. Tenant's fixtures and fittings are those for which a tenant should have received consent to attach by means of a licence for alterations (on the basis that they require an element of physical attachment to the building fabric becuase most leases limit what works a tenant can carry out with consent of the landlord.) If a tenant has not obtained permission to install such items (eg copper piping in trendy bars; air conditioning units) then there's a very real danger that : the landlord is then entitled to treat them as his fixtures and fittings so the tenant cannot try to remove them at the end of the lease; and also that they would not be disregarded for the purposes of rent review - so the landlord says the works have enhanced the building and the tenant could then pay a higher rent as a result.
Hope this helps.
Clive Read
Partner
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Clive Read
Member - 6 posts
Ian
I would be very surprised if anyone took the view that the location of a classroom on the ground floor for the reasons you describe would be seen as disability discrimination. Guidance recommends that services can be provided in more accessible areas such that people can get the same service that an able bodied person does. You still have to bear in mind the health and safety aspects and use of lifts in fires are certainly not recommended; and you may feel that fire refuges are not an adequate alternative.
Regards
Clive Read
Partner
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Clive Read
Member - 6 posts
Andrew
In order for the latter buildings not to be HMOs they have to satisfy one of the categories listed in Schedule 9 of the Housing Bill. Therefore, not only do they have to be occupied by full time students but, the person managing the premises either has to be the university itself or another specified body. Specified bodies are so specified by the Government making an Order designating the same. It is highly unlikely they would include individual landlords who privately manage such premises; but it might possibly extend to some of the larger managers who establish a proven track record in student accommodation(but only after some intense lobbying). Until such a body were to be so specified the buildings which were shown to be an HMO (see clause 191 of the Bill)would then be the subject of licensing regimes, even if they were still occupied by students.
However, if such buildings were managed by a registered social landlord that would be okay because you'd fall within the para 3 exemption set out in Schedule 9. If such buildings were only occupied by 2 persons forming different households, that would fall within the para 8 exemption.
For completeness, you should also be aware that just because a building is not an HMO as defined by cl 191, or is not an HMO because of a Sch 9 exemption, it will still be caught by the provisions of Part 1 of the Bill. This is designed to ensure that all residential properties satisfy minimum standards. As a property owner you will need to ensure that your own properties are adequately maintained and I am sure you will be concerned that those properties in which students live are also satisfactory. The local authorities are to be given powers to take action if they identify category 1 or 2 hazards. Those powers are broadly in line with what was previously in the 1985 Act eg - a power of insepction and also the ability to serve a variety of notices/orders - improvement notices, prohibition orders, hazard awareness notices (and even demolition orders and slum clearance orders).
I hope this helps clarify the position. Please contact me if you require any further information.
Regards
Clive Read
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Clive Read
Member - 6 posts
Chez
My initial reaction would be that the Institute would need to look at the costs issues and see whether there is justification for not providing a bed at such an additional cost where there is no realistic prospect of that bed being used by anyone else. This would appear to be relevant given the provision of other beds by social services. You'd need to check the factors under s 28T of the Act eg - financial resources; grant available to students (is one available here?); costs (£4k does seem to be a great expense for a bed that will effectively be used for 40 weeks or so). Para 6.10 of the education code makes it clear that there are no hard and fast rules but you're already aware that those organiations with bigger pockets will have far less justification for refusing to do something than poorer ones.
I have looked through the service provider and education provider codes and although the service provider code gives an interesting example at para 7.24 referring to the additional cost of making a special bed being passed onto the user there is then the caveat that this shouldn't be passed on merely because of the need to make a reasonable adjustment. The education code gives examples at paras 6.8 - 6.12 where costs will come into play.
If the Instutite feels they do not want to be put to the cost of providing such a speacial bed, is there any merit in seeing if the student's bed at their exsting home could be transported to the Institute while they are studying with you? Is there any way in which arrangements could be made to accommodate this as a means of a changed practice eg - Institute paying for removal at given times during the term on notice and then at the end of each term? That might be one way round the need to provide a brand new bed.
Please call me if you wish to discuss on 0121 678 1439
Regards
Clive Read
Partner
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