A disparity in the law which potentially places operators of civic amenity sites at risk of having to repay millions of pounds worth of charges to householders looks set to be changed.
The Department for Environment, Food and Rural Affairs issued a formal consultation over the summer on repealing section 1 of the Refuse Disposal (Amenity) Act 1978 (RDA). This is because the law requires waste collection authorities to accept all kinds of non-business waste from residents at recycling sites for free, in any quantity.
It means that some councils and their contractors may have been charging residents for depositing non-household waste, such as construction waste, in line with the EPA, but against the provisions of the RDA – opening them up to potential legal challenges.
If the law in repealed, councils will be able to charge for the deposit of waste such as construction and demolition material in the confidence that they are not breaking the law. It will also mean that the legal duty to provide civic amenity sites will fall on waste disposal authorities exclusively.
A spokesman for Defra told letsrecycle.com: “The department is considering the options and is intent on repealing the law. We are in close contact with the authorities which will be affected by the change.”
Welsh environment minister Jane Davidson has also agreed that the legislation should be repealed in Wales and that Welsh officials should work with Defra to make the change.
In a statement, the Welsh Assembly Government said: “The presence of two contradictory statutes in force at the same time is potentially confusing for both the public and for local authorities. In order to remove this contradiction section 1 of the RDA should be revoked.”
Consequences
Parliament's intention, when the EPA was passed, was for the RDA to be repealed by the laying of a Commencement Order made under section 162, Schedule 16, part II of the EPA.
But, this was never made and, until very recently, Defra believed that the consequences of not repealing it only affected those joint waste disposal authorities and their member waste collection authorities (WCA) where a civic amenity site was operated by the WCA – such as in London. Defra also thought that the effect was limited to operational considerations.
However, more recent legal advice has suggested that the co-existence of the two pieces of legislation could place operators of CA sites at risk of legal challenge, wherever they limit the type and quantity of waste they accept.
While the threat has not yet been realised, it is understood that the issue has already led to a dispute in Surrey, with one resident calling for a reimbursement of charges which he claims were made illegally. Surrey county council was unable to comment on this.
One local authority expert, who wished to remain anonymous, said he believed that nationwide, the public had been “illegally” charged tens of millions of pounds to deposit waste such DIY material and other construction and demolition waste at CA sites due to the legal conflict.
He compared this to the problems councils have encountered with Schedule 2 of the controlled waste regulations, which make councils responsible for paying for the disposal of waste from institutions such as charity shops and schools (see letsrecycle.com story).
He said: “There is a striking similarity here with the Schedule 2 shambles since that was brought to light by a complaint about the local authorities' illegal charging for disposal of charity shops' waste.
“The difference is that the flouting of the 1978 Act involves much larger sums and many more members of the public.”
Implications
A change in the law is likely to have particularly big implications in London, where the responsibility for providing CA sites lies with London boroughs following the abolition of the Greater London Council in 1986. If the Refuse Disposal Amenity Act is repealed, this function will need to be transferred to the regional waste disposal authorities.
It is understood that some boroughs are reluctant to release control of the sites, which are seen as a valuable front-line service.
And, stakeholders such as the West London Waste Authority (WLWA) are calling for time to prepare for the transfer of responsibilities – including whether they receive financial compensation and whether existing contracts are handed over to the authorities.
A report prepared for a meeting of the Authority by its director Jim Brennan and chief technical advisor Suresh Kamath on July 21 outlined some of these concerns.
The report said: “It is understood that repeal of Section 1 of the RDA would remove the enabling legislation for the borough provision of HRRCs and the duty for provision would pass to the Authority. From a public service perspective the change could be achieved quite seamlessly provided that the borough sites, staff, plant and funding are transferred to the Authority.”
“Achieving this change presents a number of significant issues for both the authority and the borough and time must be allowed for adequate preparation for the transfer of responsibilities.”
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