Refuse - New Household Duty of Care

Introduction

The Government has introduced regulations that extend the waste Duty of Care by requiring householders to ensure their waste is disposed of properly.  This Duty comes into force on 21 November and means that councils will be able to take action against anyone who has not taken reasonable measures to ensure their waste is passed on to an authorised person.  It will be up to the courts to decide what constitutes 'reasonable measures'.  The Duty emphasises the responsibility that all residents should not support illegal waste transfer and fly -tipping, whether knowingly or unknowingly.

Background

The duty of care is set out in section 34 of the Environmental Protection Act 1990 (the 1990 Act).  The Duty is part of the Clean Neighbourhoods' agenda and is designed to act as a deterrent to fly-tipping and to increase awareness of and responsibility for waste.  People who collect or transport waste on a professional basis must be registered with the Environment Agency.  The Agency has a register of waste carriers that will soon be made available on-line.

Measures in the Clean Neighbourhoods and Environment Act 2005 to tackle fly-tipping came into force on 7 June and 18 October 2005.  These include:

• The removal of the defence of acting under an employer's instructions in transporting waste (section 35) and unlawfully depositing waste (section 40).
• Unlawful deposit of waste: maximum penalties on conviction increased to £50,000 in Magistrate's Court / 5 years imprisonment in Crown Court.  Fly-tipping is now an arrestable offence (section 41).
• The power for local authorities and land owners to recover investigation and clean up costs from convicted fly-tippers and for the courts to order the forfeiture of any vehicle involved in fly-tipping (sections 42-44).
• The extension of powers to investigate illegal waste disposal or duty of care offences to waste collection authority officers (section 53).

The Clean Neighbourhoods legislation gives significant support to local authorities to enforce against and prevent fly-tipping.  The Household Duty of Care regulation will act as another check in the fight to prevent illegal waste activity.

Fly-tipping is an increasing problem in most areas of the country.  Fly-tippers can make huge sums of money by dumping waste, often multiple lorry loads of waste, including hazardous materials, knowing that the council will have to clear it up and council tax payers will foot the bill.  Fly-tipping is costing local authorities alone £44 million pounds to clear, whereas the true cost including fly-tipping on private land could be as much as £100 million pounds per annum.

New measures to improve waste management

Alongside this new duty of care on householders are forthcoming powers (from 6 April 2006) to issue a £100 fixed penalty notice to any householder not complying with directions on the presentation of refuse and recyclate for collection (section 48 Clean Neighbourhoods and Environment Act 2005).  These new powers will help waste collection authorities to tackle low participation in recycling schemes, contamination of recyclate with residual (household) waste and general non-compliance with publicised collection arrangements (e.g. waste left out on the wrong day, at the wrong time etc).  The local authority will need to ensure that collection arrangements are well publicised.

The system for registering waste carriers is currently under review and this is likely to be updated in the next few years to create a more transparent process that will make it much harder for anyone to transport waste illegally.  This will help councils, businesses and householders to more easily check that a carrier or broker is legally registered.  In the meantime waste carrier registration details should be checked with the Environment Agency on 08708 506 506.

Related websites

Environment Agency - registered waste carriers

Environment Agency - householder's duty of care

Environmental Protection Act 1990

Clean Neighbourhoods and Environment Act 1990