Sally Stock, Juli Lau, Ellen Painter and Beth Edwards discuss notable changes made to the Environment Bill 2021-2022, which received Royal Assent on the 9th November.
After a number of iterations and delays, the highly anticipated Environment Bill 2021-22 (the “Bill”), which returned to Parliament in May, received Royal Assent at midnight on 9 November. As such, the Environment Act 2021 (the “Act”) is now law.
The Act contains several provisions relating to waste which waste collection and waste disposal authorities (“WCAs” and “WDAs”, respectively) should be aware of.
Separation of Waste
Section 57 of the Act replaces Section 45A Environmental Protection Act 1990 (“EPA 1990”) on waste collection and inserts new Sections 45AZA-AZG. Notable changes include:
- Recyclable household waste must be collected separately from other household waste, for recycling or composting (‘recyclable household waste’ being defined in the amended EPA 1990 to reference specific recyclable waste streams). The Secretary of State (“SoS”) will have the power to add further recyclable waste streams.
- Recyclable household waste must be collected as individual streams unless the exceptions in the new Section 45A(6) EPA 1990 apply. To rely on these exceptions, a WCA must provide a written assessment stating it considers that separate collection:
- Would not be technically or economically practicable; or
- Has no significant environmental benefit
- In any case, dry recyclable waste streams must never be mixed with food or garden waste streams.
- Food waste collection must take place at least once a week.
It should also be noted that these requirements are applicable to “relevant waste” (i.e. recyclable waste akin to household waste, other than garden waste) from non-residential properties, commercial waste and industrial waste collections.
We anticipate that these changes will have the following implications on WCAs and WDAs:
- Where WCAs do not already collect food or garden waste and/or separately collect dry recycling, they may face increased costs relating to staffing, vehicles, and containers.
- Some WCAs charge for the collection of garden waste using the exception in Schedule 1 Paragraph 4 Controlled Waste (England and Wales) Regulations 2012. However, under the Act, WCAs are not permitted to charge for the collection of food waste. Therefore, if WCAs decide to collect garden and food waste together, charging for collection may be viewed as a breach of their statutory duties.
- Moving towards increased collections and different containers may lead to confusion or non-compliance by residents.
- Current waste collection contracts need to be reviewed to determine whether any changes to service provision requirements are necessary and whether any ‘Change in Law’ provisions are triggered. This may result in WCAs having to vary their existing contracts. Future procurements should also take into account the changes made by the Act.
- The implementation of separate collections as intended by the Act is likely to lead to changes in the composition and volumes of residual household and recyclable waste collected, and accordingly delivered to WDA facilities and contractors.
- Composition and tonnage changes may require variations (possibly significant ones) to long term disposal and treatment facilities and could impact contractually agreed positions in long term disposal contracts.
Local authorities may be concerned about the increased monetary obligations created by the Act. The Government has stated in its waste and resource efficiency factsheet that it “recognises the financial pressures local authorities face and will ensure that costs arising from new statutory duties such as those proposed in the Bill are covered.” The detail of any available funding remains to be seen.
Other Key Amendments
The Act also:
- Inserts new Sections 34CA-B EPA 1990 to create a power for the SoS to make regulations to establishing an electronic waste tracking
- Creates a new Section 62ZA EPA 1990, which gives the SoS the power to make regulations in connection with the regulation of hazardous waste in England. These could include prohibiting or restricting where hazardous waste can be kept or who can control it.
- Amends section 141 of the EPA 1990 which allows the SoS to make regulations relating to the importation and export of waste or the transit of waste for export.
- Amends Part 4 of the EPA 1990 in relation to littering enforcement powers.
Enforcement of the Act
Part 1, Chapter 2 of the Act establishes the Office of Environmental Protection (“OEP”) which has been working on an interim basis since 1 July 2021.
The OEP is designed to undertake the scrutiny functions that (prior to Brexit) were carried out by the European Commission and the European Environment Agency, as well as advising Government on environmental issues and enforcing against breaches of environmental law.
During the Act’s passage through Parliament, there has been some debate between the Houses over the independence of the OEP.
The final version of the Act removes an amendment made by the Lords, and instead retains the requirement for the OEP to comply with guidance issued by the SoS when developing policy and carrying out its functions, but with the addition of increased Parliamentary scrutiny of the guidance.
When do the provisions come into force?
Although the Act has now received Royal Assent, the only provisions which immediately come into force are largely procedural. A number of provisions relating to the OEP, its objectives, and the development and publication of its strategy came into force on 17 November 2021.
The provisions on electronic waste tracking will come into force on 9 January 2022.
The other provisions referred to in this article will become law on the day the SoS approves them and remain law unless challenged within 40 days by either House raising a motion. The government have stated in their waste and resource efficiency fact sheet that they will “allow local authorities sufficient time to adapt to their new duties and to communicate changes with householders.”
We advise waste collection and disposal authorities on all manner of issues relating to their statutory duties, and our Waste team is at hand to assist authorities with addressing the implications under the Act and any subsequent legislation.
Sally Stock is a Partner, Juli Lau is Legal Director, Ellen Painter is a Solicitor and Beth Edwards is a Paralegal at Sharpe Pritchard LLP.
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