Site Waste Management Plans - Now they're compulsory

Construction sites are estimated by the Government to produce about one-fifth of all fly-tipped waste in the UK and new measures coming into force on 6 April 2008 are intended to improve regulation of construction site waste, including the reduction of illegally fly-tipped waste.  Until now there has been a voluntary code of practice on site waste management plans, but now all sites where works are valued at over £300,000 will need to have in place a site waste management plan.  What implications do these plans have for clients/employers and contractors? 

The plans are required by virtue of the Site Waste Management Plans Regulations 2008.  They apply to all but the smallest construction projects. They apply to projects with an estimated cost greater than £300,000 excluding VAT; cost is defined as the price in the accepted tender or, if there is no tender,  the cost (presumably by way of a notional assessment) of labour, plant and materials, overheads and profit.  The Government considered that below this threshold the cost of producing the plan would outweigh the benefits.

The plan is intended to describe the types of waste expected to be produced in the course of the project and the action proposed for the disposal of such waste, including recycling and other appropriate methods.  It is the client's responsibility to prepare the plan before construction work begins. If work begins without the plan being in place, both the client and the principal contractor are guilty of an offence.  The plan must identify the client and principal contractor and describe the work proposed, including location and cost.  Any decision on design and construction methods to minimise the quantity of waste produced on site taken before the plan was drafted must be recorded.  In respect of each waste type to be produced, estimated quantities and waste management action must be identified. The plan must contain declarations from the client and principal contractor that they will take all reasonable steps to ensure that all waste from the site is dealt with in accordance with the waste duty of care in Section 34 of the Environmental Protection Act 1990 (EPA), that materials will be handled efficiently and that waste will be managed appropriately.  However clients and contractors should not be misled by this requirement into thinking that only reasonable steps need  be taken to discharge the waste duty of care, as Section 34 of the EPA is not expressed in these terms. It actually requires all persons that deal with waste to ensure that the waste is dealt with in accordance with the waste duty of care, even though the duty itself is to take all measures as are reasonable in the circumstances

The principal contractor must update the plan so as to record steps taken when any waste is removed.  For any project with a cost greater than £500,000, the plan must be further reviewed not less than every six months to reflect the progress of the project and record actual measures taken.  Once the work is completed the principal contractor must add confirmation that the plan has been monitored and provide an estimate of the cost savings achieved. 

Whilst at first sight the Regulations appear unlikely to create cost savings (but rather increased paperwork)  it is presumably envisaged that they will promote strategic planning leading to such savings in the medium to long term.

Site waste management plans are a key policy measure in progressing the Government's proposed targets for reducing construction waste set out in the draft Sustainable Construction Strategy which was released in July 2007. The draft strategy proposes a 50 per cent reduction by 2012 of construction, demolition and excavation waste disposed by landfill compared to 2005, and that by 2020 no waste should be disposed by landfill. The final strategy is expected to be released in June 2008.

The principal contractor must keep the plan available on site to every contractor carrying out work described in the plan.  It must be kept for two years after the completion of the project at the principal contractor's office or at site. 

Further provisions include requirements for the principal contractor to provide site induction and to ensure co-ordination of other contractors. Both the client and the principal contractor must review the plan to ensure that those affected know their roles. They must also take reasonable steps to ensure that security measures are in place to prevent illegal disposal of waste. Clients and contractors should note that in any event Section 34 (1)(b) of the EPA requires all measures to be taken as are reasonable in the circumstances to prevent the escape of waste from their control.

Failure to comply with any of the above requirements of the Regulations is an offence.  Further offences include failure to produce the plan when required to do so by the Environment Agency or a local authority.  The penalty for any offence is a fine not exceeding £50,000 on summary conviction or unlimited on indictment.  A fixed penalty notice for £300 may alternatively be given in respect of a failure to produce a site waste management plan.

Clients will need to ensure (through both contractual terms and inspection)  that the principal contractor records waste management actions and updates the plan during the course of the project.  This may require enhanced site supervision by the client, both so as to ensure that the plan is properly kept up to date and also to avoid any potential liability on its part in default of the principal contractor complying with the obligations. 

For contractors, it will be necessary to ensure that the client has prepared the plan before works begin on site as the principal contractor will  be guilty of an offence if the plan is not in place.  Contractors will need to keep a tight control on waste movement from the site if they are to comply with their obligations to update the site waste management plan in the light of events.  Contractors must also ensure that their sub-contractors know where the site waste management plan can be found as failure to do so is also an offence.  Contractors may therefore wish to include in their sub-contracts specific obligations on their sub-contractors so as to ensure that their assistance is available in order to enable the principal contractor to comply with its obligations as to recording of waste management actions. 

The Regulations are likely to make it significantly easier for the Environment Agency and the local authority to supervise and enforce compliance with other existing waste legislation, including Waste Acceptance Criteria (WAC) controls on the types of waste that may be sent to landfill, prohibitions introduced in September 2007 on the disposal of liquid wastes and untreated waste by landfill, and landfill tax. The Budget 2008 announced that the exemption from landfill tax of waste removed from contaminated land will be phased out by 1 April 2012 and that any applications for new exemption certificates must be received by 30 November 2008.

It is likely that both the client and the principal contractor will have input into the substantive content of the plan. In any event, the client must identify a principal contractor since if he does not do so then the obligations in the Regulations revert to him.

The Regulations will not apply to projects already planned before they came into force (6 April 2008)and where construction work begins before 1 July 2008.  However, as they embody good practice, clients and contractors may also prefer to adopt the terms of the Regulations for such projects as well unless it would be impracticable to do so.

Herbert Smith LLP, Gleiss Lutz and Stibbe are three independent firms that have a formal alliance.

© Herbert Smith LLP 2008