How will changes to the regulations on construction waste affect you?

Changes to regulations have been introduced that could increase liabilities on anyone disposing of construction waste, with potential penalties or criminal prosecution for non-compliance.

From 1 April 2018 anyone who knowingly facilitates the disposal of spoil or construction waste to sites in England and Northern Ireland without environmental permits, or not operating under an approved re-use mechanism (e.g. the CL:AIRE Definition of Waste Code of Practice (DoWCoP)*, or a Waste Exemption), may be liable for the Landfill Tax.  All parties involved could also be liable to additional penalties for non-compliance, and face criminal prosecution. The new rules go beyond the parties directly involved, extending (along with the liabilities) to all parties having knowledge and control of the disposal.

The changes will provide HMRC with an effective means of pursuing and penalising those involved in the evasion of Landfill Tax, and will support the legitimate waste management industry (e.g. a 2016 prosecution case that resulted in fines of £170k, would now attract fines and Landfill Tax of £1M).

These changes in the operation of Landfill Tax could affect materials management on both brownfield and Greenfield “development” and “construction” sites, whether exporting or importing surplus soil/materials, unless all parties strictly adhere to recognised frameworks or protocols (e.g. DoWCoP) and carry out robust checks on the status of carriers and permitted destinations.

Although the overarching Waste Framework Directive excludes certain materials from being defined as “waste”, including “Uncontaminated soil & other naturally occurring material excavated in the course of construction activities where it is certain that the material will be used for the purposes of construction in its natural state on the site from which it was excavated”, one must still be able to prove if questioned, fit for use, and certainty and quantity of use, and that is where existing mechanisms such as the DoWCoP and exemptions come in.

*The DoWCoP is a voluntary scheme that aims to reduce natural resource consumption by diverting reusable materials from being landfilled.  It is a structured and accepted means of demonstrating if a material is waste or not, or when it ceases to be waste. The process aims to prove to the regulators that surplus soil/material (including from cut/fill operations) is not being “lost” (thus landfilled) on a site and thus liable for Landfill Tax and an Environmental Permit (formerly Landfill License). Another aim of the process is to prove that the reuse poses no risks to humans or the environment.

If you don’t understand what your liabilities are, or would like further clarification, please give us a call.

André Gilleard, one of our specialists on the Register of Qualified Persons for the CL:AIRE Definition of Waste: Development Industry Code of Practice (DoW CoP), and a Specialist in Land Condition (SiLC) would be pleased to help. - 0117 929 2244.