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Draft Waste Enforcement (England and Wales) Regulations 2018

Debated on Wednesday 28 February 2018

The Committee consisted of the following Members:

Chair: Mr Laurence Robertson

† Coffey, Dr Thérèse (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)

† Davies, Mims (Eastleigh) (Con)

† Debbonaire, Thangam (Bristol West) (Lab)

† Drew, Dr David (Stroud) (Lab/Co-op)

† Grogan, John (Keighley) (Lab)

† Hammond, Stephen (Wimbledon) (Con)

Hendrick, Sir Mark (Preston) (Lab/Co-op)

† Hoare, Simon (North Dorset) (Con)

† Jones, Darren (Bristol North West) (Lab)

† Letwin, Sir Oliver (West Dorset) (Con)

† McCarthy, Kerry (Bristol East) (Lab)

† Moore, Damien (Southport) (Con)

† Morris, James (Halesowen and Rowley Regis) (Con)

† Pawsey, Mark (Rugby) (Con)

† Pollard, Luke (Plymouth, Sutton and Devonport) (Lab/Co-op)

† Pow, Rebecca (Taunton Deane) (Con)

† Twist, Liz (Blaydon) (Lab)

Jack Dent, Committee Clerk

† attended the Committee

Fifth Delegated Legislation Committee

Wednesday 28 February 2018

[Mr Laurence Robertson in the Chair]

Draft Waste Enforcement (England and Wales) Regulations 2018

I beg to move,

That the Committee has considered the draft Waste Enforcement (England and Wales) Regulations 2018.

It is a pleasure to serve under your chairmanship, Mr Robertson. Criminal activity in the waste industry is having significant and widespread consequences across our country. In particular, illegal activity at waste sites can severely damage the natural environment. Odours, and fly and vermin infestations, blight nearby communities, and fires at these sites can shut down main roads and railway lines, resulting in the public sector spending millions of pounds. The economic cost of waste crime is also significant: in 2015, the estimated cost to the economy in England was £604 million.

The draft regulations are another example of the series of measures the Government are taking to crack down on waste criminals, and we will set out a strategic approach to waste crime later this year as part of our resources and waste strategy. We have given the Environment Agency an additional £30 million over the next four years to target waste crime. Owing to the Barnett formula, the Welsh Government will have further funding to allocate to Natural Resources Wales to tackle waste crime, if they choose to do so.

The draft regulations are a composite statutory instrument, meaning a single instrument with provisions that apply to both England and Wales, but which is made by the UK Government in relation to England, and to the Welsh Government in relation to Wales. The Welsh Assembly is due to debate the draft regulations on 6 March inasmuch as they apply to Wales. The draft regulations set out two new powers to tackle illegal activity at waste sites. We developed the regulations in consultation with the waste industry and others in response to the regulators’ calls for further enforcement powers at waste sites.

One of the most effective ways to prevent issues at waste sites from escalating out of control is to act quickly to stop more waste entering the site. The first power in the draft regulations will enable the Environment Agency to restrict access and the importation of further waste on to a site by physical means, such as by locking the gates or barring access. The Environment Agency will be able to do this where there is a risk of serious pollution to the environment or serious harm to human health as a result of the waste on the site, and where action is necessary to prevent the risks from continuing. The agency will also be able to do this when an offence has been committed and there is pollution or harm to human health from the waste on the site.

The Environment Agency will be able to issue an immediate restriction notice for up to 72 hours. It will also be able to apply to a magistrates court for a restriction order for up to six months. A restriction order can be applied for without a restriction notice being issued first. This power will make a critical difference and will be a significant addition to the Environment Agency’s toolbox, allowing it to act quickly and decisively when the situation requires it.

The second power will enable the Environment Agency and local authorities, in their role as waste collection authorities, to require all waste at a site to be cleared, not just waste that has been deposited unlawfully. The gap in the regulations was exposed when we lost a court case and, as a result, all the waste stockpiled at a particularly problematic site could not be cleared.

The Environment Agency and local authorities can require an occupier or landowner to remove waste that has been unlawfully deposited at a site—for example, waste deposited above the limit specified in a permit. However, they do not have the power to require the removal of waste deposited lawfully at the time, within the conditions specified in the permit or under a registered exemption, but is subsequently unlawfully kept or disposed of. That has led to situations in which, after permit conditions were breached, or waste was kept for longer than the time specified in the registered exemption, or a business went into liquidation, all the waste could not be cleared.

Through the regulations, we are closing that loophole. The new power will enable the Environment Agency and local authorities to require occupiers or landowners to remove all the waste at a site, irrespective of whether it was deposited unlawfully or not. This will be a significant change that will ensure full clearance of waste sites that blight our country. Giving the regulators these two additional powers will enable them to tackle illegal activity at waste sites, and demonstrates our commitment to cracking down on all criminals operating in the waste sector. I commend the draft regulations to the Committee.

I am delighted to serve under your chairmanship again, Mr Robertson. It must be waste, because all three of us—you, the Minister and I—are here. I welcome the Minister to her seat.

Yes. At least we know we are not dealing with the bag of black waste; this time, we are dealing with more than that. We will not get into an argument over that.

I will make some general comments to start with and then home in on the statutory instrument, because this is an important issue. For anyone who lives in a rural area such as mine, there are three areas of constant complaint: potholes, dog excrement and waste—largely fly-tipping, because that is growing. I caught a little bit of what the Minister said yesterday—I am sorry that I could not stay longer—and I would love to see the evidence that shows that when local councils impose a charge, it does not lead to more fly-tipping. It is important for us to know what the empirical evidence is, so I hope she will provide it, otherwise she will get a raft of parliamentary questions from me.

The SI puts the onus on the landowner who has had something tipped on to their land to take even more responsibility for dealing with it. In her summing up, will the Minister say what the safeguards are around that? The landowner seems to get hit every which way: they have stuff dumped on their land, and if it is toxic material such as asbestos, which needs specialised treatment and removal arrangements, they have to pay for that, too. That leads us into interesting areas of responsibility and blame.

The problem of stuff being tipped is growing by 7% a year. The figures show that local authorities have dealt with more than 1 million incidents of fly-tipping. Whether that is going to legitimate waste sites or not, that is still dealing with the problem of waste in a way that we do not want. Inevitably, people will find alternative ways to try to dispose of their waste, which is when we see fly-tipping. In particular, people who are on the more criminal side will see an opportunity to open up sites and to take money from people.

Local authorities have carried out 474,000 enforcement actions, which cost them about £16 million. It is great that the Minister is giving £30 million to the Environment Agency, but my big question is: what is she giving to local authorities at the front end? They will only bring the Environment Agency in afterwards because, initially, it is local authorities’ responsibility. There does not seem to be any more money going to local authorities, which is a worry, because it means that there will be a build-up. Once people see a pile of rubbish, they tend to add to it, and it becomes more and more of a problem.

Today’s SI is pretty obscure; one has to like legal documents or like reading what SIs are about to want to read it. It is not even as clear as chucking things from vehicles, which we eventually agreed that we understood. To pick up on specific points, proposed new section 59ZB on page 3 gives a waste regulation or collection authority the power to issue notices where waste is kept or disposed of in their areas. It goes into detail about what they are, and about the notion of 21 days. In some respects, 21 days is far too long, because the waste will mount up if it is not dealt with quickly, but if there is an argument about responsibility, that may end up in the courts and be difficult to resolve in that period.

The explanatory memorandum is the most interesting and clear bit in many respects. On page 2, it states categorically:

“More waste has been diverted away from landfill and put to beneficial use, with clear benefits to the environment and the tax payer.”

The sad fact is that it will not be recycled—recycling is flatlining—but will go to incineration.

The Opposition increasingly question, and look at alternatives to, incineration; to me, sticking stuff into the atmosphere is no better than sticking it in the ground. I know it may be lower down the waste hierarchy, but it is something that we ignore at our cost in the long run. When all this waste is collected, what pressure is on local authorities or the Environment Agency to deal with it appropriately? Clearly, most of us want to recycle what we can, and to avoid waste being incinerated or, dare I say, going into landfill.

I am interested to hear what the hon. Gentleman says about waste incineration. It is my understanding that more dioxins and other nasty things are released from an ordinary garden bonfire in one day than are released from a waste incinerator in a whole year, given the complexity of the scrubbers and all the cleansing arrangements. It is a total myth that waste incineration is polluting to the atmosphere.

I would argue that we are far too lax in our control of bonfires. I could add a fourth thing that people moan about: people setting fire to their garden waste next door. Given that in many authorities—including mine—there are ways to dispose of garden waste, to me, bonfires are an idle way of dealing with it.

On dioxins and furans, which come out of incineration, my argument is that we are not properly checking that. We are somewhat ignorant about particulates and what they end up doing; they do come down somewhere, because their nature is to reassemble themselves. We are not necessarily talking about incineration here, but I am just using it as an example of why we have to be very careful about what we collect and what we do with it, because in this country we are not very good at deciding what we are doing.

Is not the whole point of having a waste hierarchy that at the top of it is reducing waste from occurring in the first place? Then we try to recycle and reuse. Even anaerobic digestion allows us to produce energy from waste. Incineration is right at the bottom of the pile, before landfill, because it does not make any good use of those precious resources.

I agree entirely with my hon. Friend. Whenever we talk about waste in this place, it is right that we critique what we are doing and ask whether we can do it better. I could go on about how this building operates. I found out through parliamentary questions that we are not that good in how we dispose of our rubbish—out of sight, out of mind. If we cannot get it right in this place, how can we expect the Great British public to take waste more seriously?

I would like the Minister to explain in more detail the difference between what is unlawful and what is undesirable; that may be the argument that is considered when someone is thinking about whether they are responsible for removing certain waste. Take the example of a farmer who has had waste tipped on their land. It has been there some time, because it is difficult to remove. At what stage in the 21 days has it become unlawful? Is the onus entirely on the landowner then to remove it, pay for it and take precautionary measures to stop it from happening again? That is what was discussed in the bit of the meeting that I was in yesterday. We all know from going around the countryside that there are now more fields with boulders at the gates. That is about stopping people from getting access to the fields and, more particularly, stopping people from fly-tipping. That is an ever-present and difficult problem.

I was following the hon. Gentleman, but I am now perplexed, because proposed new section 59ZB(4)(a) and (8)(c) of the Environmental Protection Act 1990 specifically talks about the occupier not knowingly permitting the disposal of the waste. He cites the case of a farmer who has stuff dumped on him by some fly-tipper, and who has obviously not knowingly permitted it. In that case, the last paragraph of proposed new section 59ZB(8) makes it clear that

“the authority may remove the waste from the land, or take steps to eliminate or reduce the consequences of the keeping”

of it, and that responsibility does not fall on the landholder. It seems to me that the SI is quite clear on the point he is raising.

I thank the right hon. Gentleman, but if that is the case, then where is the money for local authorities? If they are going to have to pick up the bill for all that removal, it will be a substantial increase in both their responsibilities and their funding. It will be more difficult to prove that there has been tipping, because sometimes people are casual in how they have allowed waste to collect on their land, and there may be an argument about whether they encouraged it, and whether it is their waste or something that has been tipped—particularly fly-tipped—as a result of illegal activity. That is what I would like the Minister to look into. I am basically asking where the resources are. If the Government want local authorities to be more proactive, they must give them resources. We know resources are given to the Environment Agency, but the Environment Agency will only take action as a back-up; it will only be brought in subsequently.

To finish my questions to the Minister, I would be interested to know what pressure there is on local authorities, and indeed the Environment Agency, to dispose of this waste appropriately. Of course, in one respect this is a welcome move, because we are dealing with illegality and an ever-present problem. I go back to what I said on the previous SI: I would prefer primary legislation. The Clean Neighbourhoods and Environment Act 2005, which some of us were responsible for, was a good bit of legislation, but it certainly needs updating, because the nature of the problem has grown, and the way in which we deal with it therefore had to change. These SIs are indicative of that. I would prefer to deal with waste through primary legislation; we in the Opposition would give it support, because we feel that waste is such a big issue that it needs this sort of attention.

I hope the Minister has heard what I have to say. I am sure other people will want to make points about this important SI. My concluding remark is that I wish we could deal with this matter through primary legislation. That would make the public more aware that this place is doing something. More particularly, we would have the powers and responsibility to deal with the issue in the way that it should be dealt with.

It is an honour to serve under your chairmanship, Mr Robertson.

Far from being obscure, as my hon. Friend the Member for Stroud said, these regulations are of real importance to people in my Blaydon constituency. The detail may be obscure, but the issue is real. In my constituency, we have two active landfill sites very close to urban areas, in Blaydon and in Ryton, which I should say is the ward I represent on Gateshead Metropolitan Borough Council. In 2015, I faced a major issue with a litter escape from one of the landfill sites. The site is in a rural area, just off the built-up areas; litter escaped from the site and still festoons the trees, hedges and fields around it, despite litter-pickers. It is impossible to get a cherry-picker up into a tree on a rural road.

There are real problems, and there is absolute outrage among the community that that could be allowed to happen. I talked to the Environment Agency, which advised me that these regulations were under consideration. I now have the privilege of being able to comment as a Member of Parliament on the regulations that were so important to us in 2015.

That was not the end of the story, because not far from that site was another landfill site that has, for many years, caused odour problems. We may not be talking about odour in detail here, but let us be honest: we all know that waste, when it is rotting, produces gases and odour. There is no getting away from that, and it is a real nuisance to the local community. We have had odours for many years from both sites, but we had a major problem last year at one of them, when it was flooded and there were really awful smells.

I commend the Environment Agency officers who have worked closely with me as a local councillor, and with the local authority, to do what they can to enforce regulations. However, it has become clear to us as a community that existing regulations are not powerful enough, and that enforcing them has cost the agency a lot of money—more than it has taken in fees. This is a very real problem, so I am pleased that there will be additional money for the agency; I hope some of it will come from increased charges on the landfill operators, on the “polluter pays” principle.

Let me give an example that shows clearly why operators should be made to pay for problems at sites. For three months in 2016, there was a horrible, sulphurous odour hanging over my community. People had real concerns about their health. We had discussions with the Environment Agency and even Public Health England, such was the level of concern. I am glad to say that the site in question has closed down and been capped, so hopefully there will be no more odours from it. However, there are still smells coming from another landfill site. As recently as Friday, I met the Environment Agency and the local authority to discuss what we could do to end them.

There are real problems. My constituents and I cannot understand why the Environment Agency cannot just tell an operator to shut down when it is not operating properly and is causing problems. We need to get hold of this. There is also a bigger issue to do with ensuring that landfill sites are not too close to built-up and residential areas. Some people in my constituency live very close to landfill sites. Solving that problem is a desirable objective, although it may not fall within our debate today. If possible, we should end landfill sites altogether, because they are not good for the environment in any way—but that is another campaign.

I welcome the increased powers in the draft regulations, although I would have liked to have seen even greater powers for the Environment Agency. This really matters to people in my constituency, and it has mattered for a long time. I am sure that other hon. Members will have constituency experience of the same issues, including landfill and fly-tipping.

I welcome the draft regulations, but I have to say that they are long overdue, because we started talking about them in 2015 when we had the litter escape. I certainly encouraged the local authority and others to respond to the consultation, because it is so important that we strengthen the Environment Agency’s powers to protect our local communities and ensure that our environment is protected in the long term.

It is a pleasure to serve under your chairmanship, Mr Robertson. I welcome the draft regulations. My constituency includes a large industrial site called Avonmouth, very close to the villages of Avonmouth and Lawrence Weston. My predecessor once had to tackle what can only be described as the plot of a low-budget horror film. A waste company called Boomeco packages refuse-derived fuel into bundles, stores them on the port and ships them out for incineration. One hot summer, it had not quite wrapped the bundles properly and fly larvae erupted, covering Avonmouth village with a storm of flies.

It was absolutely hideous. Some may laugh at my joke about a cheap horror film, but my constituents had to eat their dinners under mosquito nets, and the local pub had to close. The primary issue was that no one seemed to have the power to make it stop; the Environment Agency, Public Health England, the landowner and Bristol City Council all said that it was someone else’s responsibility. Meanwhile, my constituents had to use fly spray provided by their local councillors.

I welcome the further enforcement powers for agencies such as the Environment Agency, but I stress that co-ordination powers and resources are as important as granting more powers to any one agency. We need to ensure that the agencies work together so that any situations that arise do not fall through the gaps between legislative powers. Agencies need to be able, and mandated, to come together to find a solution.

More needs to be done. I agree with my hon. Friend the Member for Stroud that this matter should be tackled at primary legislative level. In Avonmouth, there is a high density of waste companies close to local communities and villages. Areas such as Bristol North West expect us to have the powers to ensure that they are protected from either mistakes or abuses by the companies providing services in places such as Avonmouth. That is why I and others have called for measures such as regulated borders around residential areas. Avonmouth village could have a regulated border between it and the industrial estate; any planning applications for these types of business in the area could have to undergo enhanced scrutiny.

I welcome these regulations, but I repeat the message that has been sent, and urge the Government to go further, so that there can be powers to protect my constituents—and, indeed, all our constituents.

It is a pleasure to serve under your chairmanship, Mr Robertson. I, too, welcome the Government’s taking action on this matter, but I question why it has taken so long to introduce the proposals. The Department for Environment, Food and Rural Affairs conducted a public consultation in 2015 on proposals to tighten regulators’ powers at waste sites, and the vast majority of the respondents agreed with the proposals. One would have thought that that meant that we could move ahead speedily. For some reason—I am not sure why—the Department conducted a restricted stakeholder consultation on this statutory instrument in April 2017, and the results were not published. I understand that of the 113 organisations that responded to the original consultation, only eight replied to the 2017 consultation. Perhaps they felt that they had already had their say and did not need to make a further contribution—or the issue may have been that it was a restricted, four-week consultation over Easter, and they did not have time to reply before the deadline. In the interests of ensuring that we can introduce similar legislation more speedily and efficiently in future, I would be grateful if the Minister could explain why this measure has taken so long to come to the table.

On the broader issue, fly-tipping and waste crime are a growing problem, as the Minister will know from discussions that she has had when appearing before the Environmental Audit Committee, particularly when we were looking at the problem of China enforcing a ban on the substantial amounts of plastic and paper waste that we were previously exporting to them. We were exporting the problem, some people might say, but the simple fact is that we are not equipped in this country; we do not have the infrastructure to recycle our own waste and use it sustainably, whether that be through reuse programmes or anaerobic digestion, ideally, or through, as a last resort, sending it to landfill. We should not be doing that. I think that the Minister now accepts that we need considerably more investment in infrastructure if we are to adhere to the waste hierarchy and deal with our waste sustainably.

Any MP, whether they have a rural or an urban constituency, will be aware of the blight of fly-tipping. In my constituency, under the M32 flyover, we have a significant problem with vans coming off the motorway and dumping refuse, usually from household clearance. One problem is that Bristol, quite rightly, reserves its household recycling centres for the use of Bristol residents, so people have to prove that they are a local council tax payer to use them. People in South Gloucestershire who want to use those sites are basically not allowed to do so, but unscrupulous firms will collect people’s waste under the pretence that they will dispose of it responsibly, and will just come off the motorway and dump it in the street. Although the waste has not been generated by Bristol households, it is the responsibility of Bristol City Council to clean it up. We have persistent complaints from councillors about that. It is a huge cost to the local council. People might say that we could make the recycling centres open to everyone, but why should we pay to dispose of things that South Gloucestershire residents want to get rid of?

Companies are meant to have waste licences to collect waste. There is a real problem with lack of enforcement in respect of those licences. Many companies are not licensed to do the job, but the average householder will not know whether a company is licensed, and will not even think to check whether someone has a licence. The Minister needs to address that.

My hon. Friend the Member for Bristol North West spoke about the fly infestation in Avonmouth. He was not in Parliament in the time, and it is not my constituency, but that certainly caused a lot of concern locally. I think it started with a bale of biofuel, and it spread all across the local area, including to food waste bins. Eventually, the Environment Agency stripped the company in question of permission to operate on the docks. However, that took a long time to highlight. Viridor said at the time that it was

“yet another example of poor practice in RDF export.”

I have already mentioned China’s ban on our sending much of our waste there. I hope that the Minister will look at whether there is a risk that the plastic waste previously sent to China will be diverted to refuse-derived fuel in this country instead. I hope she will assure us that that will not be the case.

Finally, it is one thing to bring in measures—I welcome them—to deal with waste and fly-tipping, but the starting point should be preventing the waste. We heard lots of noise from the Secretary of State for Environment, Food and Rural Affairs about bringing forward a deposit return scheme, for example. In the Budget last year, it hit the front pages that we were consulting on a tax on single-use plastics. So far as I know, the call for evidence on that has still not even been issued, so a consultation that was on the front pages in November has not yet started. What is the delay?

Why can we not get on with being serious about the circular economy in this country, reducing waste and enforcing the waste hierarchy? Perhaps then we would not have so much waste to clear up.

I thank right hon. and hon. Members for their contributions to the debate. I will restrict my comments to the draft regulations, apart from on one or two very specific issues. We do not seek to propose more broadly the concept that the landowner has liability. Of course, we expect any waste to be treated in accordance with the waste hierarchy.

I welcome the support from the hon. Members for Blaydon, and for Bristol North West, not only for the Environment Agency but for the powers in the draft regulations. The Environment Agency is undertaking the consultation on cost recovery. However, I point out to the hon. Member for Bristol East that that is just one of a series of powers we will introduce as a result of the initial 2015 consultation.

I agree with the hon. Member for Bristol North West on the need for partnership. That is very much in evidence around the country, with the Environment Agency working with other groups. Some of the issues that the hon. Member for Bristol East raises, particularly in regard to waste licences and homeowners, are being addressed and are subject to a separate consultation. Two thirds of fly-tipped waste is believed to come from households.

The 21-day period that the hon. Member for Stroud referred to is to allow an occupier or landowner served with a notice to challenge that notice with an appeal to the magistrates court. That provision is closely linked to the existing provision in section 59 of the 1990 Act. He also talked about funding. The point is that we are giving powers that local authorities and the Environment Agency have asked for. The powers that local authorities will have are not about restricting access, but about a requirement to clear an entire site.

The reason for having a second consultation—it was deliberately short, so that we could make progress—was that the 2015 consultation was somewhat broad. The second consultation allowed us to confirm certain aspects of our approach, and to be prudent in making sure that the draft regulations were correct and effective. It is important to get these things right.

I recognise that quite a lot of the law dealing with waste is complex. However, in regard to the idea about primary legislation, the Committee will be interested to know that the draft regulations are in fact an example of using what is commonly referred to as a Henry VIII power: using secondary legislation to amend primary legislation. I am pleased that the draft regulations have had the scrutiny they have had. They have been subject to extensive consultation, and I hope the Committee will wholeheartedly support the two new powers, which I think will do a lot to tackle a lot of the waste sites around today.

Question put and agreed to.


That the Committee has considered the draft Waste Enforcement (England and Wales) Regulations 2018.

Committee rose.