Summary and implications

The construction industry annually produces over 100m tonnes of construction demolition and excavation waste. According to a recent WRAP report in England 13m tonnes alone ends up in landfill: Construction Commitments: Halving Waste to Landfill (March 2011), (http://www.wrap.org.uk/construction/halving_waste_to_landfill/signatory_report.html). The industry has signed up to halving the amount of such waste going to landfill by 2012. The requirement in England for site waste management plans plays a part in achieving this aim. It is anticipated that similar requirements will in due course be introduced in Wales.  

The Environment Agency (EA) is becoming more pro-active in inspecting and enforcing compliance with Site Waste Management Plans (SWMPs). Fines for non-compliance are potentially unlimited. Significantly, the EA can prosecute a number of separate offences arising out of one plan.

This briefing covers the obligations in respect of SWMPs in England for both the client and the principal contractor and the consequences of non-compliance.  

In summary:

  • SWMPs must be prepared on construction projects with an estimated worth of more than £300,000;  
  • SWMPs must be prepared before construction work begins and must be updated whenever waste is removed from the site; and  
  • SWMPs must comply with the Site Waste Management Plans Regulations 2008; failure to comply will result in fixed penalties, prosecution or fines, for which directors, managers and company officers can be personally liable.

Click here to view table of Key Definitions.

1. Preparation of the SWMP

The client must prepare the SWMP before any construction work begins. Even if the client appoints a principal contractor, it is still the client who is legally responsible for the preparation of the SWMP.  

However, both the client and the principal contractor will be guilty of an offence if the project starts without a plan in place.

2. The content and format of the SWMP

There is no formal requirement to adopt a specific template for an SWMP. However, guidance issued by Defra contains a specimen template. In summary, certain details that must be included in the plan:

  • The identity of the client, principal contractor and person who drafted the plan;
  • The site location and the estimated cost of the project;
  • Design information as to waste minimisation;
  • A description of the type and estimated quantity of waste;
  • Any plans to reuse, recycle or recover different wastes; and
  • A declaration of compliance with the waste duty of care regime.

3. Ongoing obligations

Updating the plan

Whenever waste is removed from the site it is the principal contractor’s duty to update the SWMP with the following information:

  • The identity of the person removing the waste; 2008.  
  • The types of waste removed; and
  • The site to which the waste has been taken.

There are additional, more detailed requirements for SWMPs where the project costs are more than £500,000.

Both the client and the principal contractor must also:  

  • Review, revise and refine SWMPs as necessary; and  
  • Take reasonable steps to prevent illegal waste disposal from the site.

Which projects are caught?

  • Projects planned before 6 April 2008 with construction work beginning after 1 July 2008.
  • All projects planned after 6 April 2008.
  • The Regulations do not apply to projects planned before 6 April 2008 with construction work starting before 1 July 2008.

Duty to reuse, recycle or recover waste

Section 1(4) of the Schedule to the Regulations requires the principal contractor to “ensure, so far as reasonably practicable, that waste produced during construction is re-used, recycled or recovered”.

This obligation will assume greater significance given the requirement in the Revised Waste Framework Directive that by 2020, 70 per cent of construction and demolition waste by weight (excluding naturally occurring materials) must be recycled or recovered.

No more than three months after the work is finished

The principal contractor must add to the plan and:

  • Confirm that the plan has been monitored and updated; and
  • Explain any deviation from the plan.  

The principal contractor must also retain the SWMP for two years after completion of the project.

4. Additional requirements for client and principal contractor

The principal contractor has the following additional duties:

  • Undertake training and site induction on the SWMPs;
  • Promote and develop measures to ensure waste is dealt with in accordance with the SWMP.

The client is also responsible for giving reasonable directions to any contractor to enable the principal contractor to comply with its SWMP obligations.

Penalties

  • Fixed penalty notices on failure to produce SWMPs – £300.  
  • Summary conviction in the Magistrates’ court – fine up to £50,000.
  • Conviction on indictment in the Crown Court – unlimited fine.

5. Offences and enforcement

The key offences are:  

  • Failure to comply with any of the SWMP Regulations;  
  • Making a false or misleading statement in an SWMP;  
  • Obstructing or failing to assist a regulator.  

The EA, local authorities and councils have the power to enforce the SWMP Regulations. Any authorised officer of these organisations also has the power to issue a fixed penalty notice of £300 for failure to produce a copy of an SWMP when requested.  

As with most environmental offences, where a company has been found guilty under the SWMP Regulations, directors, managers and officers of the company can be personally liable. This occurs where they have connived or at acted negligently in breach of the SWMP Regulations.  

Increasingly we are seeing planning permissions containing specific conditions requiring the production of SWMPs, so not only is there the risk of prosecution if an SWMP has not been put in place, but also of planning enforcement action.

6. Duty of Care

Under section 34 of the Environmental Protection Act 1990, anyone concerned with controlled waste must ensure that the waste:  

  • Is managed properly;  
  • Is recovered or disposed of safely;  
  • Does not cause harm to human health or pollution of the environment;  
  • Is only transferred to someone who is authorised to receive it.

7. Helpful guidance

In addition to the Defra guidance, there are a number of other guidance notes which will assist in the preparation of SWMPs. These include 2009 Defra’s Code of Practice on the Sustainable Use of Soils on Construction Sites (http://www.defra.gov.uk/environment/quality/land/soil/built-environ/documents/code-of-practice.pdf); and the CL:AIRE Code of Practice on the definition of waste, an updated version of which is being launched at the end of March 2011. Also WRAP has produced online tools and guidance around Designing Out Waste and Site Specific Waste Analysis (http://www.wrap.org.uk/designingoutwaste).

8. Beware – the honeymoon period is over

The Environment Agency is becoming more pro-active in inspecting and enforcing compliance with SWMPs. They began “Agency trials” in August 2010 in Bedford and are now targeting areas such as Milton Keynes and Runnymede in Surrey. Fines are potentially high with the ability of the regulators to prosecute for a number of separate offences arising out of one plan.