Waste Enforcement (England and Wales) Regulations 2018

Baroness Bakewell of Hardington Mandeville Excerpts

Tuesday 27th February 2018 Grand Committee

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)]

My Lords, these regulations are a single composite statutory instrument which applies to both England and Wales but is made by the UK Government in relation to England and by the Welsh Government in relation to Wales. The Welsh Assembly is due to debate the regulations on 6 March. These regulations will strengthen the regulators’ arsenal to deal with non-compliant activity at waste sites by providing them with a further two powers: the power to restrict entry of persons and further waste to the site, and the power to require the removal of all waste at a non-compliant site.

Your Lordships are aware that, to minimise waste, our aim is to have a more circular economy so that resources are used more efficiently and kept in use for longer. A well-functioning waste industry, operating within a regulatory framework and in accordance with environmental permits or registered exemptions, is essential to achieve this. A small number in the industry hamper resource efficiency, damage the environment and seek to gain profit illegitimately by operating outside the regulatory framework. Ensuring that the regulators have a full range of enforcement powers is essential to bear down on that non-compliant part of the industry to ensure that waste is managed properly with no damage to the environment or to local communities.

Over the past 25 years, the nature of the waste industry has changed and government action has been needed to meet the challenges. As well as ensuring that the regulators have robust powers, since 2014 we have given the Environment Agency an additional £60 million for waste enforcement, and have recently published a consultation on proposals to tighten up the waste permitting and exemptions regime.

The two powers before your Lordships today are technical in nature. The development of these regulations included a public consultation in both England and Wales with a range of organisations, including various parts of the waste industry, the regulators, local authorities, householders and NGOs. The regulations insert new sections into the Environment Act 1995. It is a power just for the Environment Agency. If a waste site currently stockpiles more waste on its site than its permit allows, the Environment Agency is able to restrict access in certain circumstances. This can be done only in order to remove waste that is causing a serious pollution risk and only after giving a waste operator five days’ notice. This clearly limits the agency’s ability to act quickly to stop further waste entering a site and does not put the onus on the waste site operators to be responsible for waste on their site. The agency can also revoke a permit and close down a site, therefore restricting access, but it is not always proportionate to close down a waste site immediately if it does not comply with its permit.

This first new power will therefore fill this gap. The Environment Agency will be able to act immediately to restrict access by locking the gates or barring access to stop more waste coming on to a site. The Environment Agency will be able to issue an immediate restriction notice for up to 72 hours where there is a risk of serious pollution to the environment or harm to human health as a result of the waste on the site and action is necessary to prevent the risks continuing. The Environment Agency will also be able to apply to a magistrates’ court for a restriction order for an initial period of six months when there is a risk of serious pollution to the environment or harm to human health, or when an offence, such as a breach in permit conditions, has been committed which is resulting in pollution. No legitimate waste operator should fear the introduction of this new power. It has been drafted in a proportionate way and includes a right to appeal a restriction order within 21 days of the order being made. Access will remain restricted pending the determination of the appeal.

The regulations also introduce new sections into the Environmental Protection Act 1990. The second power will be available to the Environment Agency and local authorities in their capacity as waste-collection authorities, because both the agency and local authorities are responsible for different aspects of waste management regulation under the Environmental Protection Act 1990. As with the previous power, the Environment Agency and local authorities’ ability to require the clearance of waste at non-compliant sites needs strengthening. Currently, the Environment Agency and local authorities can require an occupier or a landowner to remove only waste that has been illegally deposited at a non-compliant site; for example, waste not deposited in line with the conditions of a permit. We are therefore extending the scope of the current power to enable the Environment Agency and local authorities to require operators or landowners to clear all the waste at a non-compliant site, so no waste is left at the site. The power will not be applied retrospectively and will include a two-month transition period. Like the previous power, we think it is proportionate for operators and landowners to have the ability to appeal. Giving the regulators these two additional powers will bear down on the non-compliant part of the waste industry with rigour, as part of our quest for a healthy environment for future generations. That is why I commend the draft regulations to your Lordships. I beg to move.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I am grateful to the Minister for his detailed introduction of this waste enforcement SI. There are many SIs coming down the track and a great deal of detailed and complex information for your Lordships to get their heads around. It is estimated that there are currently around 600 illegal sites operating in England, Wales and Northern Ireland. The Environment Agency already has the power to shut down illegal waste sites due to the damage they cause to their surroundings.

In 2016, the Environment Agency prosecuted 110 businesses and individuals for offences related to illegal waste sites. In some cases, landowners caught by this illegal activity were unaware of it taking place. Illegal waste sites are a blight on communities and undermine legitimate landfill operators. It is to be welcomed that the Government have listened to concerns raised by businesses and local communities and are taking action to tackle this crime—a crime which not everyone in society will recognise, but doubtless it goes towards the ever-increasing crime figures, which are regularly published.

In 2015, waste crime cost the English economy more than £600 million. This included lost landfill tax revenues and clean-up costs. It creates severe problems for people who live or work nearby, with odour, dust, litter, vermin, fly infestations, pollution and fires blighting lives. These criminals undercut genuine businesses that dispose of waste responsibly. The new powers introduced for the Environment Agency to lock the gates or block access to problem waste sites to prevent thousands of tonnes of waste illegally building up are very welcome. The powers will also enable the Environment Agency to force operators to clear all the waste at a problem site, not just the illegal waste, as the Minister has just said.

I have consulted with my local waste authorities and they report that there is little or no problem in Somerset with either waste sites operating without a licence or in breach of their licence. That is good news, but it would appear that the north of England and London are the worst-hit areas. During 2016-17, more than 850 new illegal waste sites were discovered by the Environment Agency. While an average of two illegal waste sites are shut down every day, they continue to create problems for local communities and businesses, as well as posing a risk to key national infrastructure. In 2013 a fire at a waste site in Stockport resulted in the closure of the M60 and three weeks of disruption to traffic, residents and businesses.

I am grateful to the Minister for sending me the sentencing guidelines for the offences committed by these environmental criminals. I found them most interesting. The range of classifications gives due consideration to whether the offence was deliberate, reckless, negligent or of no culpability; in other words, those who deliberately and knowingly flout the law and cause the most harm to the environment can expect the penalty to be severe, whereas those who find they are the subject of a breach of the law through no fault of their own, and little harm ensues, will be penalised at a much lower level. The range of fines, from £100 to £3 million, gives plenty of scope to the Environment Agency to ensure that culprits, both unwitting and serial offenders, realise that they cannot continue to flout the law and pollute the countryside.

However, I am concerned that the extra £30 million over four years that is to be made available to the Environment Agency to tackle waste crime, in the form of illegal sites and misclassification of waste, may not be enough. That sum sounds a lot but equates to only £7.5 million a year. Given the scale of the problem in recent years, I am not convinced that this sum will be adequate. I seek assurance from the Minister that sufficient resources will be made available to the Environment Agency to enable it to carry out its new legal duties to the degree that we all wish to see. That apart, I am happy to support this very important statutory instrument.

[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the Minister for introducing these regulations and for our earlier meeting to talk through the proposals, which I found very useful. We support these new powers: obviously, they will help tackle illegal activity at waste sites and will be an important additional tool for waste regulation and collection authorities in tackling the growing menace of waste crime. As we know, this takes many forms, from fly-tipping by builders and illegal dumping on farmland to large-scale criminal activity involving illegal sites and operators misclassifying waste to evade millions of pounds of tax, and so on. It is definitely time to take action.

Diverting waste from landfill, and increasing our capacity to store, sort and treat it for recycling and recovery, has to be an essential element of a future circular economy based on the waste hierarchy. If it is done well, it will bring economic and environmental benefits. In that context, the majority of waste sites play within the rules and understand their responsibilities. Unfortunately, there appears to be a sizeable minority of sites which seem to take pleasure in stretching the rules or operating completely outside the legislation. Not only is this illegal but it creates an unfair advantage over the more responsible operators. As the Explanatory Notes make clear, illegal waste sites can cause pollution to the environment as well as endanger public health. They pose a risk of fire, water pollution and other irritants such as odour, litter and fly infestations, which can cause misery for nearby communities. All too often, it is left to public bodies and owners of land to clear up the mess.

The recent Environmental Services Association Education Trust report, Waste Crime: Tackling Britain’s Dirty Secret, estimates that waste crime costs the UK £560 million a year. The Chief Fire Officers Association estimates that the cost of dealing with fires at waste sites across the UK is around £16 million a year. By any measure of cost-benefit analysis, it makes sense to crack down on the gangsters who are creating the problems in the first place, rather than leaving it to the public purse to clear up the mess. So these measures to restrict access to sites and to enforce clean-ups, as well as to fine and in more serious cases to jail those involved, have to be welcomed.