In January 2015, the coalition Government replied to criticisms from the Commons Environment, Food & Rural Affairs Committee about Defra’s role and responsibility for waste management policy and its priorities regarding waste.
Defra denied that it had ‘stepped back’ from all waste and resource management policy, but instead said it had refocused activities in areas that only Government can and must do.
It confirmed that it was committed to achieving 50% recycling of household waste by 2020, but believed that local authorities should lead on determining the most appropriate recycling arrangements for their area, taking into account local circumstances. There were no plans to reintroduce statutory recycling targets for local authorities.
While Defra was keeping a low profile, Eric Pickles, the then communities secretary, continued to take an active interest in waste. Councils were faced with ‘punishments’ for trying to encourage recycling by reducing the frequency of waste collections while at the same time seeing swingeing cuts in their waste budgets.
Since Greg Clark took over at the DCLG, the Government’s preoccupation with weekly waste collection seems to have waned. Instead, it is concentrating its activities on meeting recycling targets and reducing landfill.
Here are some of the key legislative developments in the past year.
Charging for household waste
In April 2015, the Government introduced two measures to stymie some local authorities’ plans to charge users of household waste recycling centres (HWRCs) by reclassifying them as ‘discretionary’, so they fell outside requirements of the Environmental Protection Act 1990.
The Local Government (Prohibition of Charges at Household Waste Recycling Centres) (England) Order 2015 (SI 2015/619) disapplies section 93(1) of the Local Government Act 2003, which enables local authorities to charge for discretionary services, so they cannot use this as the legislation permitting them to charge for use of ‘discretionary’ HWRCs.
Alongside this, the Local Authorities (Prohibition of Charging Residents to Deposit Household Waste) Order 2015 (SI 2015/973) prohibits local authorities from using their general power of competence under section 1 of the Localism Act 2011 to charge their residents to enter into or exit from HWRCs, or to deposit household waste or recycling at such centres (26 March 2015).
Waste reduction: plastic bags
Wales, Northern Ireland and Scotland had already introduced a charge on single-use plastic carrier bags. England followed suit in October 2015, and this appears to already have had a big impact.
The Single Use Carrier Bags Charges (England) Order 2015 (SI 2015/776) requires retailers with 250 or more employees to charge a minimum amount of 5p for unused single use (lightweight) plastic bags used for taking goods out of shops or for delivering them. The charge is to be enforced by trading standards officers, with two types of civil sanctions: fixed monetary penalties or discretionary requirements. They also have duties to publish reports and guidance about enforcement action. The Order ceases to have effect on 5 October 2022.
Duty of Care
The Waste Duty of Care under section 34 of the Environmental Protection Act 1990 requires those dealing with certain kinds of waste to take all reasonable steps to keep it safe. It applies to anyone who is a holder of household, industrial and commercial waste.
In September 2015, Defra issued a draft revised Waste Duty of Care Code of Practice for consultation. It has been revised to reflect a number of legislative changes since its publication in 1996. The consultation closed on 21 September 2015.
In February 2015, Defra issued a consultation on waste crime, with proposals to enhance enforcement powers for the regulators and councils to help them tackle entrenched non-compliance at sites permitted to handle waste. It also asked for evidence on a range of measures to tackle waste crime and persistent poor performance in the waste management industry.
Defra published the outcome of the consultation in October 2015. Its plans include:
- clarifying regulators’ existing enforcement powers, including suspension of permits and application for an injunction to enforce compliance with an enforcement notice
- introducing fixed penalty notices for fly-tipping in England
- further consultation on the principle of an ‘operator competence test’ that would apply to all types of regulated activity carried out under an environmental permit.
However, it will not take forward plans for a national scheme to fund the clean-up of abandoned or orphaned waste management sites. Instead, it will look at ways to reduce the opportunity for abandonment and make sure that operators have made sufficient financial provision to meet the obligations associated with their permits and the cost of site clearance and remediation.
The Control of Waste (Dealing with Seized Property) (England and Wales) Regulations 2015 (SI 2015/ 426) establish the procedures by which a waste collection authority, the Environment Agency and Natural Resources Wales must follow once they have seized a vehicle and/or its contents because of suspected involvement in offences concerning the transport or disposal of waste, such as fly-tipping.
The aim of the regulations is to cut illegal waste activity, including fly-tipping, by giving enforcement authorities more effective tools to use in the investigation and prosecution of suspected offences.
The Household Waste (Fixed Penalty and Penalty Charge) Regulations 2015 (SI 2015/969), which came into force on 15 June 2015, set the levels of the monetary penalty that waste collection authorities and London borough councils can impose on any person who fails to comply with a requirement related to the collection of household waste, where that failure causes a nuisance or is detrimental to any amenities of the locality.
Nadeem Arshad is partner and Claire Booth is associate PSL at Bevan Brittan
Bevan Brittan produces a monthly alert Waste Watch for those in the municipal waste and waste management sector, with brief details of legislative and policy developments in England and Wales and links to the source materials. Those wishing to subscribe can register via: www.bevanbrittan.com