Questions raised over Broxbourne waste charges

Earlier this month, the Hertfordshire borough of Broxbourne reported on the success of its bag-charging pilot in which residents are provided with one free purple refuse sack a week, and have to pay the council 28p for each extra sack needed thereafter (see letsrecycle.com story).

The system was based on a similar regime used by Eden district council in Cumbria which has helped to create high recycling rates there.

However, one local authority expert, who wished to remain anonymous, told letsrecycle.com last week that he believed the reason more councils were not following suit was because the scheme conflicted with the Environmental Protection Act. The Act states that waste collection authorities must either provide the receptacles free of charge, charge for them if the occupier agrees of require the occupier to provide them.

According to his analysis, Broxbourne's scheme was not free of charge, had not charged with the agreement of residents and did not allow residents to buy their own sacks, and therefore was illegal.

Explaining his logic, he said: “Starting with the three options the law permits under s.46(3), Broxbourne does not (i) provide the specified purple sacks for surplus residual waste free of charge, nor does it (ii) provide them on payment if the occupier agrees, nor does it (iii) require (or even allow) the occupier to provide them. Broxbourne's scheme unlawfully requires the sacks to be provided solely by the authority on payment of 28p per sack whether or not occupiers agree – and, judging by reports in the press, quite a number do not agree.”

“And so, going back to s.46(1) and (2), it now becomes clear that the specification that purple sacks be used is also unlawful because it cannot be “reasonable”. The reason for specifying purple is to ensure that the Council achieves its purpose that 46(3) makes unlawful of forcing unwilling residents to buy expensive sacks from the council (what other reason could there be for specifying purple?) and it can never be “reasonable” in law for a public authority to seek to achieve something that is itself unlawful.”

Lawyers

Legal firm Pinsent Masons, which specialises in environmental law, agreed that on a “black letter reading” of the act, there was no legal provision to compel householders to only use the refuse sacks provided by a council, even if a council could charge for the provision of sacks.

Solicitor Shelley McGhie said: “On a black letter reading of the Act, as WCA's are permitted under the Act (section 46.3(b)) to make a charge for the provision of 'receptacles' (where the occupier agrees), it could be argued that they can charge for the provision of refuse sacks (such as is common with commercial waste). However, there is no legal provision within the Act to compel the householder to solely use the refuse sacks provided by the Borough of Broxbourne (unless they are provided free of charge, or where there is a charge if the occupier agrees).”

However, the law firm noted that this was not definitive advice on Broxbourne's scheme, and did not take into account the circumstances surround waste collection in Broxbourne.

Broxbourne

The council insisted that the scheme was legal even though it would not comment on the issue of charging.

A spokesman said: “On 1 October 2007, the council served a notice, pursuant to s46 of the EPA, to around 3,000 householders in the Goffs Oak and Rye park area requiring that from 8 and 9th November 2007, they use purple sacks, supplied by the council, for the duration of a six month weekly refuse collection pilot. The Council has nothing further to comment, other than that it is satisfied that the details of the pilot scheme are consonant with the Council's legal powers.”

A spokesman for Eden district council, which ran a similiar scheme on which Broxbourne based its system, said it had discharged its statutory duties by providing two sacks to each house a week free, which would be ample if householders recycled.

The Eden spokesman said: “We have a duty to collect domestic refuse and the core service to householders is provided for free, at no cost to the individual. Added to this is a discretionary service, where people can purchase additional bags if required for extra refuse they may want to put out for collection.”

Defra

The Department for the Environment, Food and Rural Affairs said the EPA clearly afforded the power for councils to charge for extra waste sacks.

A spokeswoman said: “We think the law is clear and councils are allowed to make the charge. As the EPA shows, a power does exist for local authorities to charge for waste receptacles, such as bins or bin bags.

“If individuals are unhappy about a scheme for any reason we would encourage them to raise the issue with their local ward councillor, and if after that they remain dissatisfied with the way the authority handles the issue they can take up the matter with the Local Government Ombudsman,” she added.

Lee Marshall, of the Local Authority Recycling Advisory Committee, said that he supported the bin charging schemes as a “logical step on from side waste policies” which helped to boost recycling.

However, Mr Marshall admitted he was unsure about the legal justification for such schemes and that only the courts could decide on legality.

“There will not be a definitive answer until it goes through the courts,” he said.