Don't hit a brick wall with site waste

Site waste management plans are now mandatory for all construction projects worth over £300,000. Eluned Watson and Simon Read examine what this new legislation means

The Government and the construction industry have joined forces to cut carbon. The Draft Strategy for Sustainable Construction was published last July and includes stringent targets for reducing the construction, demolition and excavation waste taken to landfill sites. The aim is to halve such waste by 2012 and for there to be zero waste to landfill by 2020.

To help achieve these targets, the Government has introduced the Site Waste Management Plans Regulations 2008, making site waste management plans (SWMPs) compulsory for all projects with an estimated project value greater than £300,000.

The regulations came into force last month, on 6 April, although projects planned before this date do not require a SWMP provided that construction begins before 1 July 2008. A SWMP is a living plan which details the amount and type of waste that is estimated, and is in fact produced on a construction site and how it will be reused, recycled or otherwise disposed of. A template SWMP has been produced by Defra, which can be found on its website together with the informal consultation on the non-statutory guidance for SWMPs.

It pays to plan ahead
A SWMP should be prepared as early in the project planning as possible and before beginning a building or demolition project. It needs to include the identities of the client, the principal contractor and the person who drafted the SWMP, together with an estimate of the project's costs and its planned location.

As a client, a local authority should note that both the client and the principal contractor are expected to declare that they will take all reasonable steps to ensure that waste from the site is dealt with in accordance with the waste duty of care set out in section 34 of the Environmental Protection Act 1990 and the Environmental Protection (Duty of Care) Regulations 1991.

The requirements for updating the SWMP vary depending on the value of the project, with more detail and regular updating required for SWMPs on projects worth more than £500,000. The SWMP should always be updated when any waste is removed, giving details of the identity of the person removing the waste.

In terms of who is responsible for a SWMP, while in most situations a local authority will be the client rather than the contractor, this does not mean that the authority is not caught by the provisions in the regulations.

It will be the council, as a client, who is responsible for the preparation of a SWMP. It is a shared duty and if work begins before a SWMP is prepared, both the client and the principal contractor will be guilty of an offence. Where there is more than one contractor on a site, the client is responsible for appointing a principal contractor.

A client should give the contractor such reasonable directions as are necessary to enable them to comply with the regulations. This includes ensuring the contractor is aware of its duty to keep the SWMP updated. If a local authority is planning any projects which may be caught by the regulations, it is essential that preparations are started as soon as possible to ensure compliance.

For each project, someone with overall responsibility for preparing the SWMP will have to be appointed. Time for the planning and preparation of the SWMP should be written into the project timetable. Tools such as the Building Research Establishment's SMARTwaste series can help with the preparation of a SWMP and the template launched by WRAP.

Contracts for new construction projects should include clauses assigning responsibility for the preparation and updating of the SWMP. A local authority should remember that, although it is a client, it still has duties under the regulations.

Therefore, it should consider inserting provisions into new contracts setting out how they will ensure compliance with the plan and stating how breaches will be dealt with.

Beware the fines
There is a range of penalties set out in the regulations based around a failure to keep, implement, make available or update a SWMP. On conviction, a guilty person is liable to a fine up to £50,000. On conviction in the crown court, an unlimited fine can be imposed. A system of fixed-penalty notices of £300 will be implemented as an alternative to prosecution. As with most environmental offences, director and officer liability is a possibility.

Enforcement powers are given to local authorities and the Environment Agency. Such bodies already have a range of powers available to them to help tackle the illegal disposal of waste. Councils will need to add SWMPs to existing local enforcement strategies as an additional tool for dealing with fly-tipping.

Not only will a SWMP help the environment, it should also lower the costs of construction. The level of waste in the construction industry is very high and reducing these levels will cut the costs of both materials and disposal. In addition, a reduction in the amount of waste sent to landfill sites will have long-term advantages for a local authority in terms of its role in operating and managing landfill sites.

Eluned Watson and Simon Read are solicitors in the property team at Pinsent Masons

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