Legal Q&A focus

Paul Rice, a partner at leading solicitors Pinsent Masons, answers topical
questions on legal issues surrounding environmental and waste management

Are local authorities entitled to refuse to collect “side waste” from householders, as reported from Southampton, or to charge an additional fee to collect what might be viewed as “overflow” rubbish?

Subject to limited exceptions, section 45 of the Environmental Protection Act (EPA) 1990 imposes a duty on waste collection authorities to “arrange for the collection of household waste in its area”. Section 45(3) goes on to provide that: “No charge may be made for the collection of household waste…” save where the Secretary of State has specifically legislated and in such cases a “reasonable charge” may be levied.

Section 46 then builds on the duty to collect waste by providing that WCAs may require occupiers to “place waste for collection in receptacles of a kind and number specified.” The type and number of receptacles/bins must be “reasonable”. WDAs can either provide the receptacles/bins free of charge, make a charge for them where the householder agrees, or require the householder to provide them. Moreover, the WCA can impose requirements as to the use of bins and on this basis numerous local authorities now refuse to collect “side waste”.

Following a letter from DEFRA to all collection authorities, Southampton City Council obtained a legal opinion stating that it cannot legally refuse to collect “side waste”. While we have not seen a copy of the earlier DEFRA letter or the legal opinion itself which may fall into specifics, it would seem on a hard reading of the EPA that WCAs (providing the correct notices have been issued) may legitimately refuse to collect “side waste”.

On the issue of charging householders it is widely thought that the ability to charge for collection of household waste will require a change to legislation although WCAs are permitted under the EPA (s.46) to make charge for the provision of “receptacles” and so, it could be argued that they could charge for the provision of sacks such as is common with commercial waste.

Are there any implications for local authorities or waste services contractors in the recently imposed Duty of Care for householders who are advised to ensure they use registered waste carriers for some categories of waste disposal?

The Waste (Household Waste Duty of Care) (England and Wales) Regulations 2005 were issued last October and came into force on 21 November 2005. They extend the Section 34 EPA Duty of Care in relation to waste to householders to ensure that their waste is properly disposed of.

In practice the new duties will only have implications for those LAs that bite the bullet and decide to prosecute householders for breach of the statutory obligation. The Government expects to see around 100 court prosecutions per year.

We suspect that some LAs will only resort to the use of an expensive court based solution once or twice per year as part of a local publicity drive against fly-tipping, but it is reasonable to expect that such cases will only be taken against householders capable of paying prosecution costs and only in circumstances where there is cast-iron evidence to secure a conviction.

Any form of enforcement action has to overcome the evidential difficulty of demonstrating that the householder did not take reasonable measures to ensure that the waste was properly disposed of. On occasions this will require detailed fact gathering.

We feel registered waste carriers can expect to see a small rise in the volume of waste recovered direct from households, but consideration is no doubt being given to increasing or imposing charges for removal of such waste in appropriate circumstances. Waste carriers will not have to bother with creating transfer notes when collecting such waste from householders.

This column does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.

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