Many local authorities are looking at the recycling services they provide and are seeking to enhance these in order to hit ever increasing targets.
An analysis of recycling services throws up many practical and legal issues. One of the interesting legal issues that arises periodically is whether an authority has the power to charge for a recycling service. An example arose recently in relation to glass collection. There are various economic disincentives in relation to kerbside glass collections, not least that research by WRAP and others has suggested that it is less cost effective to operative a kerbside collection service as opposed to bottle banks. However, if a local authority does want to introduce a kerbside glass recycling service, the question is can it charge for it?
The essential difficulty is that what is being collected is refuse and therefore comes under the duty in section 45 of the Environmental Protection Act 1990 imposed upon waste collection authorities to collect domestic refuse. However, if the local authority asks householders to voluntarily separate glass from their other refuse and put it in a different receptacle, then it would be possible to levy a charge either for the provision of that receptacle or the provision and collection of that receptacle on a periodic basis. One way in which this might be done is by using s46(3) of the Environmental Protection Act 1990, which permits a local authority, if the occupier agrees, to provide the receptacle and levy a charge for it.
Other potential avenues might be s93 of the Local Government Act 2003, which permits a local authority to levy a charge for a discretionary service. One of the exclusions from the use of s93 is that it is not available where a local authority is under a duty to provide that service. While this is certainly the case with domestic refuse collection, where the discretionary service that the council offers is over and above the boundaries of the legal duty, this is permissible. A good example in relation to refuse collection would be bin cleaning, where the council is under the legal duty to collect the domestic refuse but it offers to wash the wheelie bin at the same time, that latter service being over and above the boundaries of the legal duty.
Similarly, providing a separate receptacle for glass could be seen to be outside of the legal duty to collect domestic refuse and would be permissible under the Environmental Protection Act 1990. This being the case, then s93 of the Local Government Act 2003 would permit the council to levy a charge for that service. There is one drawback in relation to the use of this power, however, and that is that you have to have a separate accounting regime as the arrangements are intended to be cost neutral with the income from receipt of charges not exceeding the costs of provision of the service. It will therefore be possible for local authorities to offer such services and concentrate more on the economic and practical implications, rather than on the legal difficulties.
English authorities should also be mindful of their duty under the Household Waste Recycling Act 2003 to collect by the 31st December 2010 at least two types of recyclable waste together or separated from the general waste. They may be excused where the costs of complying are unreasonably high or where comparable alternative arrangements are available. In our view offering a paid for service would not excuse an authority from its general duty to collect at least two types of recyclables.
Subscribe for free